Compliance with legislation can be intimidating, especially for business owners without a legal background. Labour law is not negotiable and compliance requires specialist knowledge. This poses a business risk to the employer. To comply with legislation is not a luxury, it is a must and can be overwhelming and extremely time consuming. Employers should however realise that legislation can also be used to protect your business and minimize risk by proactively positioning the business with regards to possible future disputes.
By addressing labour risk proactively, the employer can greatly contribute towards the business’s sustainability and profitability. This will also ensure a working environment with reduced conflict, friction and misunderstanding, which in turn creates a structured environment receptive to growth. Labour legislation is applicable to all employers and employees. It aims to regulate labour relations ensuring fairness in the workplace.
The labour environment in South Africa is highly regulated. This creates an extremely challenging working environment for employers. Applicable labour legislation in the agricultural sector can be categorised as follows:
- Procedural legislation
- Compliance legislation
- Regulatory legislation
Labour law prescribes various procedures, requirements for compliance and other regulations for the workplace. Instead of just complying with a specific requirement, for example ticking the box “employment contract”, make sure you have the best possible employment contract for your business. Every business is unique and it is vital that the employment contract reflects this unique employment relationship. Yet it must also put the employer in the best possible position going forward for any possible disputes that may arise.
Never settle for a generic employment contract, as the employment contract is the most important document in the workplace. It defines the terms and conditions of employment as agreed upon between parties and regulates the employment relationship. When drafting an employment contract, the employer must take care to ensure that the contract complies with all applicable labour legislation depending on the specific industry. Take note that no part of the employment contract may be amended unilaterally and without consultation with the employee.
Although legislation specifies requirements that the employer must comply with, there are many additional aspects of the employment relationship that the parties must come to an agreement on and is the employment contract the ideal vehicle to do so. Furthermore, the employer has many rights, but also the responsibility to claim these rights and enforce them.
Through the employment contract the employer can confirm these rights and agree on the following:
- Time periods – probation period, retirement age, short time, lunch breaks, etc.
- Consent – medical testing, alcohol and drug testing, cameras in the workplace, etc.
- Consent – deductions for damages, training, etc.
- Reference to policies, procedures and a disciplinary code that describes rules, sanctions and procedures the employer and the employee must adhere to.
- The employee’s fiduciary duty (to always act in the best interest of the employer)
- The employer’s fixed standard in the workplace with regards to quantity and quality – this is vital to manage productivity in the workplace.
To comply with labour law is not negotiable but doesn’t have to be a headache. Employers can use labour law to their advantage to protect their businesses by including proactive clauses in the employment contract to eliminate possible future disputes and put the employer in the best position with regards to the employment relationship going forward.
LWO Regsadviseur - LWO Legal Advisor
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