labour law update - fasset · recent amendments draft employment services bill. proposed amendments...

Labour Law Update

September to October 2011

Agenda‒ Legal Overview‒ Recent Amendments – Employment Services Bill‒ Basic Conditions of Employment Act‒ Labour Relations Act‒ Employment Equity Act‒ Compensation for Occupational Injuries & Diseases Act‒ Occupational Health & Safety Act‒ Unemployment Insurance Fund (UIF)‒ Immigration Law‒ Protected Disclosures Act‒ Prevention and Combating of Corrupt Activities Act‒ Draft Employment Services Bill‒ New developments in case law on all legislation

Legal Overview

The Constitution of South Africa, Act 108 of 1996

South African legislative framework

Labour Relations

Constitution

Basic Conditions of Employment

Occupational Health & Safety Act

COIDA

Immigration Law

EmploymentEquity

PPrevention

& combatingof corrupt activities

Protected Disclosure

Draft Employment Services bill

UnemploymentInsurance

Fund

The Constitution

Section 23 of the Constitution

• Everyone has the right to fair labour practices

• Every worker has the right to form and join a trade union, participate in union activities and strike

• Every trade union, employer’s organisation and employer has the right to engage in collective bargaining

Bill of Rights

Contains several provisions including:

Protection against discrimination

Protection against forced labour

Right to pursue an occupation

Right to freedom of association

Protection of children against exploitative labour practices

Recent AmendmentsDraft Employment Services Bill

Proposed amendments to the LRA, BCEA and EEA

• Major focus on addressing labour broking

• Additional amendments have been effected to these acts to achieve the following:

‒ To bring them in line with labour law developments

‒ To improve the functioning of the CCMA

‒ To fulfil our obligations as a member state of the International Labour Organisation (ILO)

Employment Services Bill, 2010Overview of the ESB• Seeks to provide a Legal status for Employment

Services

• Defines the role and core functions of public employment services

• Decent work schemes to promote youth employment

• Promotion of employment of people with disabilities

Employment Services Bill, 2010Overview of the ESB continued• Employment promotion schemes to respond to

economic recession, company closures and pending retrenchments or lay-offs

• Regulation of employment of foreign workers

• Private Employment Agencies – Provision is made for the registration and licensing of Private Employment Agencies for placement and their regulation by the Department

Employment Services Bill, 2010Public employment services The Department to provide services free of charge in to members of the public:• match work seekers with available work opportunities;• register work seekers• register job vacancies• facilitate the placement of work seekers with employers• advise workers on access to social security benefits• Assist the youth, new entrants into the labour market,

disabled persons and members of rural communities

Employment Services Bill, 2010Promotion of employment of persons with disabilitiesSheltered Employment Factories to be established and must:• provide work opportunities for disabled people• facilitate on-the-job training for disabled people,

leading to qualifications• provide technical assistance to enterprises that

promote the employment of people with disabilities

Employment Services Bill, 2010Employment information The Department will operate information system:• The names, qualifications and previous occupations

of work seekers• Vacancies in the labour market• Available training opportunities• Specialised skills and qualifications of work seekers

registered on the public employment services system• Employers details• Employment trends in the country

Employment Services Bill, 2010Employment information:• May not compromise the South African citizen’s

opportunity for employment

• May not employ a foreign national without the applicable and valid work permit

• The Minister may publish categories of work within which foreign nationals may be employed.

Employment Services Bill, 2010Employment information:Employers must exhaust the following before recruiting foreign nationals:

• Make use of the public employment services• Submit reasons as to why they cannot employ

relevant profiles referred to them by the Department• Provide proof that they have tested the local labour

market through recruitment campaigns• Submit a detailed skills transfer plan in scarce skills

categories published by the Minister of Home Affairs in terms of the Immigration Act.

Employment Services Bill, 2010Reporting on vacancies and filling of positions • Employers must notify the Department of any

vacancy or new position within 14 working days after the position became vacant or created

• An employer must notify the Director-General of the filling of any vacancy within 14 days of such an appointment

Employment Services Bill, 2010Employment information • The Department will develop and operate information

system on which it records:• the names, qualifications and previous occupations

of work seekers• vacancies in the labour market• training opportunities that are available• specialised skills and qualifications possessed by

work seekers• employers details• employment trends in the country.

Employment Services Bill, 2010Private Employment Agencies• All private employment agencies to operate under

a licence issued by the registrar in terms of this Act.

• The private employment agency must display the licence in a conspicuous place on its premises.

BASIC CONDITIONS OF EMPLOYMENT ACT, 1997

Basic Conditions Of Employment Act, 1997

What is does

• Establishes basic terms and conditions

• Regulates variation of basic terms

• Prohibits child labour

• Covers all SA employees – with a few exceptions e.g.

Defence Force, volunteers to charity organisations

• Sets minimum standards – parties can improve on them

Basic Conditions of Employment Regulation of Working hours

The section of the Act that regulate working hours does not apply to:‒ workers in senior management‒ sales staff who travel and regulate their own working

hours‒ workers who work less than 24 hours in a month

Basic Conditions of Employment Maximum Working Hours

Number of days worked per week

Maximum

Ordinary hours per day Ordinary hours per week

1 - 5 9 45

more than 5 8 45

Basic Conditions of Employment Working Hours

Meal Breaks• Workers must have a break of 60 minutes after 5 hours’

work.• A written agreement may:‒ reduce meal intervals to 30 minutes‒ eliminate meal intervals for workers who work less than 6

hours a dayRest Periods• Workers must have a rest period of ‒ 12 hours each day; and‒ 36 consecutive hours each week (must incl Sunday, unless

otherwise agreed).


Pay for work on Sundays– Entitled to double the wage if don’t

normally work– If normally work then entitled to one and a

half times– Paid time off to be granted within 1 month


Night Work• Workers working between 18h00 and 06h00 must ‒ get an allowance, or work reduced hours, and‒ have transport available to them

• Employees who work regularly after 23:00 and before 6.00‒ Must be informed of any health and safety hazards‒ Have the right to undergo a medical exam


OvertimeAn employer may not require or permit an employee

• to work overtime except by an agreement;

• to work more than 10 hours’ overtime a week.

• An agreement may not require or permit an employee to work more than 12 hours on any day.

• A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months.

• Overtime must be paid at 1.5 times the employee’s normal wage or an employee may agree to receive paid time off

Basic Conditions of Employment Leave

Application:• Does not apply to employees who work less than 24

hours a month for an employerLeave Cycle:• 12 months immediately following commencement of

employment or completion of previous cycle

Basic Conditions of Employment Annual Leave

Number of leave days

21 consecutive days, or

1 day for every 17 days worked, or

1 hour for every 17 hours worked.

* must grant annual leave not later than six months after the end of the annual leave cycle.

Basic Conditions of Employment Leave

Timing of leave• Both the employer and worker should agree to the timing

of leave. If they cannot agree, the employer makes the final decision

Pay instead of leave• Employers may not pay workers instead of granting leave,

except on termination of employment.

Basic Conditions of Employment Sick Leave

• An employee is entitled to six weeks’ paid sick leave in a period of 36 months.

• During the first six months an employee is entitled to one day’s paid sick leave for every 26 days worked.

• An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.

Basic Conditions of Employment Maternity Leave

• At least 4 months – unless agreed, no pay• Can receive UIF benefits• Commencement is in the month before birth [previously was

one month]• Cannot work for 6 weeks after birth unless certified fit to do so• Entitled to 6 weeks in the event of a miscarriage in the last

trimester• Employee to attempt to give 4 weeks notice of intention to go

on leave – state when leaving and when returning

Basic Conditions of Employment Maternity Leave

• Not required to pay employee for maternity leave unless policy of doing so

• Policy may provide for payment of 60% of normal salary

• Employee entitled to claim remaining 40% from the Unemployment Insurance Fund

• Total cannot amount to more than 100% of normal salary

• Protection of employees before and after child birth

Basic Conditions of Employment Family Responsibility Leave

• Applies to those employed for more than 4 days a week, and at least for 4 months

• Entitled to 3 paid days a year in the event that:

‒ Employees child is born

‒ Employees child is sick

‒ Employees spouse, life partner, parent, grandparent, child, grandchild or sibling dies

• No accumulation

Basic Conditions of Employment Annual Leave & Public Holidays

• A public holiday cannot be counted as annual leave.

Basic Conditions of EmploymentParticulars of Employment and

remuneration• Applies to those who work more than 24 hours a month

for an employer

Basic Conditions of EmploymentWritten particulars of employment

An employer must supply an employee, with the following particulars in writing: ‒ Full name and address of the employer‒ Name and occupation of the employee, or a brief description

of the work ‒ Various places of work‒ Date of employment‒ Ordinary hours of work and days of work‒ Wage or the rate and method of calculating rate for overtime

work‒ Any other cash payments

Basic Conditions of EmploymentWritten particulars of employment

• Any payment in kind and the value thereof• Frequency of remuneration• Any deductions• Leave entitlement• Period of notice or period of contract• Description of any council or sectoral determination which

covers the employer’s business• Period of employment with a previous employer that counts

towards the period of employment• List of any other documents that form part of the contract,

indicating a place where a copy of each may be obtained.

Informing employees of their rights

• An employer must display the employee’s rights under this Act in the official languages which are spoken in the workplace

• Must be displayed at the workplace where it can be read by all employees

Basic Conditions of EmploymentKeeping of records

• Every employer must keep a record containing the following information:

• Employee’s name and occupation

• Time worked

• Remuneration paid

• Date of birth if under 18 years of age

• Any other prescribed information

Basic Conditions of EmploymentInformation about remuneration

The following information must be given in writing when the employee is paid:

1. Employer’s name and address2. Employee’s name and occupation3. Period of payment4. Remuneration in money5. Any deduction made from the remuneration;6. The actual amount paid7. If relevant ,the employee’s rate of remuneration and

overtime rate

Deductions and other acts concerning remuneration

An employer may not deduct money unless:

1. The employee agrees in writing to the deduction of a specific debt

2. The deduction is made in terms of a collective agreement, law, court order or arbitration award

• A fair procedure must be followed before any deductions in respect of damage or loss caused by the employee

• Employers must pay deductions and employer contributions to benefit funds to the fund within seven days.

Basic Condition of EmploymentTermination of employment

• Applies only to those who work more than 24 hours per month• Contract may terminated on notice of not less than:

1. 1 week if employed for 6 months or less

2. 2 weeks if employed for between 6 months and 1 year

3. 4 weeks if employed for 1 year or more (collective agreement can reduce this to 2 weeks) or if a domestic or farm worker employed for more than 6 months.

• Notice to be given in writing, unless illiterate, then it must be explained


• Employer cannot give notice of termination during any period of leave

• Instead of giving notice, employer can pay employee the remuneration he would have received had he worked

• Upon termination, employer must pay for any annual leave accrued and not taken and for any paid time off not taken


• Where dismissal is for operational requirements, employer must pay severance pay of at least 1 week for each completed year of service

• If employee refuses to accept reasonable alternative offer, employer does not have to pay him severance


• Employee entitled to certificate of service on termination stating:1. Employer’s full name and address;2. Date of commencement;3. Date of termination;4. Job title and description of work performed;5. Remuneration of employee on termination;6. Reason for termination, if requested

BCEA and Temporary Employment Services

• Person who is provided to a client by a TES is the employee of the TES

• TES is a labour broker so that client doesn’t have to deal with employees

• If TES does not comply with the BCEA or any sectoral determination, the TES and the client are jointly and severally liable

Basic Conditions of Employment Amendment Bill, 2010

• Changes to the power of the Minister to prescribe thresholds of representativeness of a trade union to have the organizational rights of access to employer premises

• Minister could set increases to actual wages instead of minimum wages for vulnerable workers

• Enabling provision will provide the Minister with the power to determine the conditions of labour tenants

Basic Conditions of Employment Amendment Bill, 2010

• Child labour –to align the BCEA with SA’s international law obligations i.t.o the International Labour Organisation Convention (No. 182) on the Worst Forms of Child Labour.

• Strengthening the power of the inspectorate

• Heavy penalties for offences and contraventions of the Act as well as increased prison terms for employers that do not comply

THE LABOUR RELATIONS ACT (LRA), ACT 66 OF 1995

The Labour Relations Act

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The Kenny Kunene Assault

The Labour Relations Act (LRA), Act 66 of 1995

• Aims to promote economic development, social justice, labour peace and democracy in the workplace.

Application• Applies to all employers, workers, trade unions and employers’

organisations, but does not apply to members of:

1.National Defence Force;2.National Intelligence Agency; or3.South African Secret Service.

The Labour Relations ActEmployee vs Independent Contractor

• An person is considered an employee if he/she:

‒ Falls under the control or direction of the employer;

‒ Works hours which are subject to the control of another person;

‒ Forms part of an organisation;

‒ Has worked for another person for an average of at least 40 Hours per month over the last 3 months;

‒ Is economically dependant on the employer;

‒ Is provided with tools of trade or equipment; or

‒ Only works for one employer.

The Labour Relations ActOrganisations of employers and

employeesThe LRA attempts to strengthen trade union organisation in two

ways:

1. By supporting freedom of association rights which enable employees and jobseekers to participate freely in union activities; and

2. By supporting organisational rights which make it easier for unions to organise employees.

The LRA also supports the right of employers to join together to form employers’ organisations.

The Labour Relations ActOrganisational rights

• Unions have the right to:

‒ Enter an employer’s premises to recruit or meet members

‒ Hold meetings with employees outside their working hours at the employer’s premises

‒ Conduct elections or ballots among its members on union matters

The Labour Relations ActIndustrial action

• The Act regulates strikes, lock-outs and picketing.

• It provides certain protections for employers and employees who embark on a lawful strike or lock-out.

The Labour Relations ActIndustrial action

Issues over which employees can strike and employers can lock out: ‒ Wage increases‒ A demand to establish or join a bargaining council‒ A demand to recognise a union as a collective bargaining agent‒ A demand for organisational rights‒ A demand to suspend or negotiate unilateral changes to

working conditions‒ An unprotected lock-out or unprotected strike by the other party

Labour Relations ActStrikes

• Employees may not be dismissed for going on strike

• Employers may not get a court interdict to stop the strike

• Employees do not commit a breach of contract or a delict by going on strike

• Employers may not institute civil legal proceedings against employees on strike

• An employer does not have to pay an employee participating in a protected strike

Labour Relations ActDismissals

• Basic principle – right not to be unfairly dismissed

• Require substantive and procedural fairness:

• Only 3 grounds recognised

– Misconduct;

– Operational requirements (i.e. retrenchments);

– Incapacity (poor work performance, illness/injury, possibly incompatibility)

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Labour Relations ActDismissals

• Procedural fairness – depends on the reason

• Employer bears the onus of showing dismissal was

substantively and procedurally fair

• Schedule 8 to the LRA: Code of Good Practice:

Dismissal (“the Code”) sets out guidelines

Labour Relations ActUnfair Dismissals

• Employee takes part in the activities of a union or workplace forum

• Employee takes part in a protected strike or protest action

• Employees refuse to accept an employer’s offer on a matter of mutual interest, such as a wage increase

• An employee refuses to do the work of someone who is on a protected strike or a lock-out, unless the work is necessary to prevent danger to life, personal safety and health

• An employee’s pregnancy or any reason related to her pregnancy

Labour Relations ActUnfair Dismissals

• The employee takes (or intends to take) action against an employer

• An employer dismisses an employee for a reason related to a transfer of the employer’s business

• An employee makes a disclosure in terms of the Protected Disclosures Act 2000

• The employee is dismissed on arbitrary grounds, such as the employee’s race, age, religion, sex, sexual orientation or family responsibilities.

Labour Relations ActFair Dismissals

There are three kinds of fair reason for dismissal

1. Misconduct

2. Incapacity

3. Operational reasons

Labour Relations ActMisconduct

• The employee broke a rule of conduct in the workplace

• The rule was valid or reasonable

• The employee knew of the rule or should have known of the rule

• The employer applied the rule consistently

• Dismissal is the appropriate step to take against the employee for breaking the rule instead of less serious action like a final written warning or a suspension.

Labour Relations ActMisconduct

• Must deal with on a case by case basis

• Examples of serious misconduct – dishonesty, endangering safety, assault, gross insubordination

• Advisable to adopt disciplinary code and procedure

Labour Relations ActMisconduct Procedures

• Employer required to investigate

• Notify employee of charges in an understandable form

• Notify employee of rights, e.g. representation

• Allow employee to state his case

• Allow employee reasonable opportunity to prepare

• If dismissed, notify employee of right to approach CCMA/bargaining council

Labour Relations ActDismissals During Unprotected Strikes

Factors to be taken into account include:

• How serious the breach of the Act was

• Whether attempts were made to comply with the Act

• Whether or not the strike was in response to unjustified conduct by the employer.

Labour Relations ActDismissal of Striking Employees

Before dismissing striking employees, an employer should:

• Contact the union to discuss the employer’s intention

• Give the striking employees a clear ultimatum

• Give employees enough time to consider the ultimatum

• Allow the employees an opportunity to make representations which the employer must consider

Labour Relations ActDismissal for Incapacity

• Often a source of confusion

• True incapacity is not a disciplinary offence

• 3 types of incapacity:

‒ Inability to perform to required standards;

‒ Inability to perform due to illness/injury; and

‒ Incompatibility.

Labour Relations ActDismissal for Incapacity

• Poor work performance

‒ Give an appropriate evaluation, training, guidance

‒ Hold an investigation

‒ Problem cannot be reasonably solved

• Bad health or Injury

‒ If the incapacity is permanent the employer must make a greater effort to accommodate the employee

Labour Relations ActDismissal for operational reasons

The main changes introduced by the amendments:

• individuals who are retrenched may refer a dispute either to arbitration by the CCMA or a council or to the Labour Court for adjudication

• the consultation process in large scale retrenchments may be facilitated by a person appointed by the CCMA

• employees involved in a large scale retrenchment may either strike or may refer a dispute over the substantive fairness of the retrenchments to the Labour Court

Labour Relations ActRetrenchments

The written notice - invitation to consult parties, must disclose

• Reasons for the dismissals

• Alternatives considered

• Number of employees likely to be affected

• Proposed method for selection of employees

• When the dismissals are likely to take effect

• The severance pay proposed

• Assistance the employer proposes to offer to the employees


• The possibility of future re-employment;

• The number of employees employed by the employer

• The number of employees that the employer has dismissed for reasons based on its operational requirements in the last 12 months


• Severance pay‒ Must receive at least one week’s remuneration for

‒ Every year of completed service from the employer.

• The consulting party may‒ Reach agreement on a higher amount.

‒ An employee who unreasonably refuses to accept an employer’s offer of alternative employment with that employer or any other employer is not entitled to severance pay

Labour Relations Amendment Bill, 2010Based on Election Manifesto

Avoid exploitation of workers

Ensure decent work

Protect the employment relationship

Regulate contract work, sub-contractors, outsourcing

Address problems of labour broking

Prohibit certain abusive practices

Labour Relations Amendment Bill, 2010

• Introduction of a new Employment Services Bill which will address both Private and Public Employment Services

• New definition of employer and employee, no temporary employment service will be able to be the employer of workers that it places in work.

• The bill proposes a range of amendments to the provisions that deal with the CCMA to facilitate dispute resolution and enhance the efficiency of the CCMA’s operations.

Labour Relations Amendment Bill, 2010

• Regulating contract work - aims to stop the practice of repeated contracting for short-term periods

• Employers to justify the use of short-term or fixed term contracts, in place of contracting employees on a permanent basis

• Proposes to repeal section 198 that deals with Temporary Employment Services in the LRA

Main Areas of Amendments

• Increase regulations to protect the increased levels of informal labour

• To ensure SA complies with the ILO principles

• Give effect to Constitutional rights (collective bargaining, equality, anti-discrimination, fair labour practices) – Sec 27 and Bill of Rights

Collective Bargaining Effect• Currently Bargaining councils are a product of employer and

union agreements

• The minister may create Statutory bodies/Bargaining Councils even if unions and employers have not reached an agreement

• These can be extended to non-parties

• Effect is a broader wage and conditions of employment regulatory framework

• Higher costs for employer in smaller areas, retrenchments? More inspectors?

EMPLOYMENT EQUITY ACT 55 OF 1998

Employment Equity ActApplication• Applies to all employers and workers and protects workers and

job seekers from unfair discrimination, and also provides a framework for implementing affirmative action.

• But not members of the:

1.National Defence Force;

2.National Intelligence Agency; and

3.South African Secret Service.

4.The provisions for affirmative action apply to –

Employment Equity Act

The provisions for affirmative action apply to:

• employers with 50 or more workers, or whose annual income is more than the amount specified in Schedule 4 of the Act; municipalities; organs of State

• employers ordered to comply by a bargaining council agreement;

• any employers who volunteer to comply.

Employment Equity ActProhibition of Unfair Discrimination

• Employers are not permitted to discriminate unfairly against any employee or applicant

• The Employer has to take steps to promote equal opportunity by eliminating unfair discrimination

• Prohibition extends to employment policy and practice free of unfair discrimination:‒ Recruitment and selection procedures;‒ Advertising;‒ Remuneration; ‒ Training etc

Employment Equity Act Affirmative Action

AA Measures:

• Eliminate barriers• Promote diversity• Accommodate designated groups• Develop and train• Preferential treatment

Employment Equity Act Affirmative Action

Employers must

• Consult with employees

• Conduct an analysis

• Prepare an employment equity plan

• Report to the Director-General on progress made in the implementation of the plan

Employment Equity Act Employment Equity Plan

Plan must:• Have objectives for each year of the plan• Include affirmative action measures• Have numerical goals for achieving equitable representation• Have a timetable for each year• Have internal monitoring and evaluation procedures,

including internal dispute resolution mechanisms• Identify persons, including senior managers, to monitor and

implement the plan.

Employment Equity Act Employment Equity Report

• Fewer than 150 employees – 1st report to be submitted to the Director-General within 12 months after the commencement of the Act, thereafter every 2 years on the first working day of October.

• 150 or more employees – 1st report to be submitted 6 months after the commencement of the Act, thereafter every year on the first working day of October.

Employment Equity Act Employment Equity Disputes

• An employee, or applicant for employment, may refer a dispute concerning alleged unfair discrimination (or medical or psychological testing) to the CCMA for conciliation.

• If a dispute is not resolved at conciliation, a party may refer it to the Labour Court for adjudication.

• Unfair dismissal disputes in which unfair discrimination is alleged must be dealt with in terms of the LRA.

• The dismissal must be referred to the CCMA within 30 days

Employment Equity Act Enforcement & Legal Proceedings

• Employee or trade union representatives can monitor contraventions of the Act and report to relevant bodies.

• Labour Inspectors are authorised to conduct an inspection as provided for in sections 65 and 66 of the BCEA

• If the designated employer refuses to comply with the written undertaking, the inspector will issue an order to comply

• The Labour Court has the powers to make any appropriate orders, award compensation, or impose fines

• The Act protects employees who exercise their rights and obligations under the Act against victimisation, obstruction and undue influence

Employment Equity Amendment Bill, 2010

• Equal pay for work of equal value – prohibit abusive practices, employees who work for the same employer receive the same pay as other employees doing the same work.

• Strengthening enforcement and compliance -Director General to be empowered to impose fines on non-complying employers (% of annual turnover)

COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT, NO 61 OF 1997 (COIDA)

COIDA• Provides for compensation for disablement caused by

occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases

Application• All employers; and casual and full-time workers who, as a

result of a workplace accident or work-related disease• Are injured, disabled, or killed; or become ill

COIDA contExclusions• Workers who are totally or partially disabled for less than 3 days;• Members of

– The South African National Defence Force, or– The South African Police Service

• Any worker guilty of wilful misconduct, unless seriously disabled or killed

• Anyone employed outside the RSA for 12 or more continuous months

• Workers working mainly outside the RSA and only temporarily employed in the RSA

COIDAOBLIGATIONS OF EMPLOYERS

• Employer to register with commissioner and to furnish him with particulars

• Employer to keep record

• Employer to furnish returns of earnings

OCCUPATIONAL HEALTH AND SAFETY ACT NO 181 OF 1993

Occupational Health and SafetyPurpose:

• provide for the health and safety of persons at work

• health and safety of persons in connection with the use of plant and machinery;

• the protection of persons against hazards to health and safety arising out of or in connection with the activities of persons at work

• to establish an advisory council for occupational health and safety

Occupational Health & SafetyDuties of employers to their employees

• Identify potential hazards and risks while work is being done• Establish the precautionary measures to protect workers• Provide the necessary information, instructions, training and

supervision• Not permit anyone to work unless the necessary precautionary

measures have been taken,• Take steps to ensure everyone complies with the Act.• Enforce the necessary control measures• Oversee the general supervision workers trained to

understand the hazards associated with the work,

Occupational Health & SafetyDuties of employees

• Must take care of his/her and other Health and Safety• Must cooperate with employer with respect to OHS• Must provide information to DOL if they should require it.• Must carry out any lawful instruction with regard to OHS.• Must comply with the rules and procedures that the

employer gives him/her.• Must wear the prescribed protective clothing / use the

safety equipment where it is required• Must report unsafe or unhealthy conditions / incidents to

the employer / representative as soon as possible.

Occupational Health & SafetyRights of the worker

• The Right to Information• The Right to Participate in Inspections• The Right to Comment on Legislation and make

Representations• The Right not to be Victimised

An employer may not dismiss a worker from his service, reduce a worker’s salary or reduce a worker’s service conditions

• The Right to Appeal

Occupational Health & SafetyHealth & Safety Representatives

• Health and Safety representatives are full-time workers nominated or elected and designated in writing by the employer

• A representative must be designated for every workplace consisting of 20 or more workers.

UNEMPLOYMENT INSURANCE CONTRIBUTIONS ACT, NO. 4 OF 2002

To provide for the imposition and collection of contributions for the benefit of the Unemployment Insurance Fund

Unemployment Insurance FundApplicationThe Act applies to all employers and workers, but not to

• Workers working less than 24 hours a month for an employer

• Learners• Public servants• Foreigners working on contract• Workers who get a monthly State (old age) pension• Workers who only earn commission.

Unemployment Insurance Fund• Employer Duty to Contribute‒ Every employer & employee must contribute

‒ Paid over by the employer

• Employer must deduct employees’ contribution• Determination of Contribution‒ 1% employee / 1% employer per month

Unemployment Insurance Fund

• It is the duty of the employer to register with the Commissioner

• It is the duty of the employer to provide particulars each month:

→ The termination of the employment of any employee

→ The appointment of any employee by the employer

IMMIGRATION ACT NO. 13 2002

Immigration Act• Aims at setting in place a new system of immigration control

which

• Ensures that the contribution of foreigners in the labour market does not adversely impact on existing labour standards

• A policy connection is maintained between foreigners working in South Africa and training of our nationals

Immigration ActWork Permits

• A general work permit may be issued by the Department to a foreigner if the prospective employer-

• Shows all efforts have been made in a diligent search

• The prospective employer of the foreign national must produce proof of the applicants skills and experience in line with the job offer

• Proof of qualification must be provided


• Certificate from a Chartered Accountant must be submitted to the DoL that the terms of employment will not be less favourable

• The employer shall notify the Department of Home Affairs when such foreigner ceases to be in his/her employ


• A general work permit shall lapse if within six months of issue and within every subsequent year

• The Department of Home Affairs is also empowered to issue an exceptional skills work permit

• The provisions which existed under the Aliens Control Act relating to in-house company transfers have been embodied in the intra-company transfer work permitprovisions

Immigration ActCorporate Permits

• The Department of Home Affairs is empowered to issue a corporate work permit to a corporate applicant to employ foreigners

• DOHA, in consultation with the DOL and Trade and Industry must determine the maximum number of foreigners to be employed

• Certification by a Chartered Accountant that such foreigners will not be employed on terms and conditions inferior to that of South African citizens or residents

Immigration LawLimited v CCMASummary:• When the applicant discovered that the respondent (a foreign national)

did not have a valid work permit, the applicant terminated his employment.

• The respondent referred an unfair dismissal dispute to the CCMA and the applicant challenged the court's jurisdiction, contending that respondent was not an "employee" as defined by the Labour Relations Act.

• The Commissioner ruled that the respondent was an "employee", and that the CCMA had jurisdiction. The applicant took that decision on review

PROTECTED DISCLOSURES ACT NO 26 OF 2000

The Protected Disclosures Act, 2000 • Recognises the value of and need for whistle blowing in South

Africa. • Aims to create a culture which will facilitate the disclosure of

information:• Employees relating to criminal and other irregular conduct in

the workplace• In a responsible manner by providing comprehensive statutory

guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures.

The Protected Disclosures Act 2000The Protected Disclosures Act sets out a clear and simple

framework to promote responsible whistle-blowing by:• Reassuring workers that silence is not the only safe option• providing strong protection for workers who raise concerns

internally• reinforcing and protecting the right to report concerns to public

protection agencies such as the Public Protector and Auditor-General, and

• protecting more general disclosures provided that there is a valid reason for going wider and that the particular disclosure is a reasonable one.

The Protected Disclosures Act Protected Disclosure

• A disclosure is a “protected disclosure” under the Protected Disclosures Act if:

• The disclosure contains information about “impropriety” and

• The disclosure has been made to the right person, according to the scheme established by the Act

PREVENTION AND COMBATING OF CORRUPT ACTIVITIES ACT 12 2004

Prevention and Combating of Corrupt Activities Act

Purpose of the act is • Strengthen measures to prevent and combat

corruption and corrupt activities• to provide for the offence of corruption and offences

relating to corrupt activities• to provide for investigative measures• to establish and endorse a Register to place certain

restrictions on persons and enterprises convicted of corrupt activities relating to tenders and contracts


• Strengthen measures to prevent and combat corruption and corrupt activities

• Create the crime of corruption and related crimes• Deal with investigations into corruption• Create a register to prevent people who use corruption

from getting government contracts or tenders• Require people in positions of authority to report corruption

over R100 000. • Prevent people in South Africa from using corruption to

influence members of the public sector of other countries


What is corruption?Corruption means offering or agreeing to accept a

“gratification” (bribe) in return for granting certain favours. A gratification, or bribe, includes money, gifts, promotion, prevention of a loss, paying off a loan and various other favours which may be offered


How the act relates to an employment relationship?

Any employer or employee who:• directly or indirectly accepts or agrees or offers to

accept any unauthorised gratification or• directly or indirectly gives or agrees or offers to give

any unauthorised gratification• is guilty of the offence of receiving or offering an

unauthorised gratification.

VictimizationLaws that protect employees from victimization when involved in the

prevention of corruption :

The Protected Disclosures Act (2000)Protects the employee from being fired, demoted or discriminated against after reporting corruption

The Labour Relations Act (1995)No employee may be unfairly dismissed. Exposing corruption is not a fair reason to be dismissed

The Employment Equity Act (1998)No employee may be discriminated against or victimised for any reason, which includes acting as a whistleblower

Thank You

Fassetwww.fasset.org.za

Call Centre - 086 101 001

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