Political parties and trade unions in the workplace

May 26, 2021 | Articles

Political parties and trade unions in the workplace

When trade unions lay claim to organisational rights in the workplace, employers are often uncertain about their own rights and those of the trade union, as well as how these rights are regulated. Currently, there is a tendency for certain political parties to try and appropriate trade union rights for themselves and intimidate employers into consulting and reaching agreements on terms and conditions of employment.

The 5 organisational rights

The Labour Relations Act (LRA) grants the following organisational rights to trade unions, subject to certain requirements:

Access to the workplace
Deduction of union registration fees
Trade union representation in the workplace
Leave for trade union activities
Disclosure of information

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What about a political party?

A political party is a political organisation that seeks to influence government policies, usually by setting up its own candidates and vying for votes and government positions.

No authorisation or permission is given to political parties for similar rights as those of trade unions. Employers must guard against entering into discussions with political parties regarding rights in the workplace.

If a trade union wants to claim organisational rights in the workplace, the trade union must first be registered with the Department of Employment and Labour. The trade union’s constitution must also be aligned with the employer’s business sector. Then, the trade union must also have sufficient (±20%) or majority (50% + 1) representation in the workplace in order to be able to claim certain organisational rights. Previously the Commission for Conciliation, Mediation and Arbitration (CCMA) considered ±30% representation in the workplace as sufficient representation, but currently the trend has moved to only ±20% representation.

Process to claim rights

In order to claim organisational rights, legislation requires trade unions to follow a procedure, which entails that the trade union must notify the employer in writing of the rights that the trade union want to exercise in the workplace. The employer must then meet within 30 days with the trade union to consult. A recognition agreement is then concluded if the trade union meets the necessary requirements, which stipulates the terms and conditions agreed upon.

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Retrenchment: what is “bumping”?

May 26, 2021 | Articles, Latest in the industry

Retrenchment: what is “bumping”?

In the current economic climate, many employers struggle to stay competitive and profitable and must consider different options to adjust to a changing environment. Retrenchment is a no fault dismissal, as the employee did nothing wrong and dismissal is due to operational requirements. As with all dismissals, the retrenchment process must be both substantively and procedurally fair. But how does an employer decide who stays and who goes?

Selection criteria

Employers are entitled to adopt a multi-rating selection criteria such as:

Years of service (“Last In, First Out”) and “bumping”
Qualifications and experience
Direct supervisor review (including an assessment of factors such as commitment to the business and team, goals, teamwork and dependability, attendance, flexibility, initiative and career potential)
Competency, efficiency, key skills retention
Continued service delivery
Performance appraisals and past performance (or discipline, for that matter)
Voluntary severance package
Retirement package
Redeployment package

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LIFO and “bumping”

Employers and consulting parties often tend to rely on the “Last In, First Out” (LIFO) principle, which is based on years of service. However, when employees are selected for retrenchment within a particular division/department as shorter serving employees in that specific division/department, these employees may in fact have longer periods of service with the employer than employees in other divisions/departments.

“Bumping” is when employees with longer service with the employer, are then transferred to positions held by employees with shorter service in other divisions/departments.

2 forms of “bumping”

Horizontal “bumping” – where an employee is transferred to a position of similar status, conditions of employment and remuneration; and
Vertical “bumping” – where an employee is transferred to a position with less favourable status, conditions of employment and remuneration.

An employer must first apply horizontal “bumping” before vertical “bumping”.

The Labour Appeal Court says…

The Labour Appeal Court has now made it clear that where employers choose to consider LIFO as a selection criterion, employers must consult on the application of “bumping” in selecting employees for retrenchment. Employers must be able to explain why it would not be fair and appropriate to apply “bumping”.

We strongly advise employers to implement clear rules in the workplace and follow correct procedures with regards to all labour matters. Employers must be proactive and act consistently especially with retrenchment and general discipline in the workplace.

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Compliance for Employers

Effect of the new earnings threshold 2021

Mar 25, 2021 | Articles, Latest in the industry

Effect of the new earnings threshold 2021

Together with the new national minimum wage that came into effect on 01 March 2021, employers also have to take note of the implementation of the increased annual earnings threshold. The previous threshold has been in effect since 01 July 2014 and increased now from R205 433.30 to R211 596.30. The earnings threshold affects provisions of the Basic Conditions of Employment Act, 1997 (BCEA), the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).

What is earnings?

“Earnings” means an employee’s regular annual remuneration before deductions (e.g. income tax, pension fund contributions, medical aid contributions and similar payments), but excludes contributions made by the employer in respect of the employee. Subsistence and transport allowances received, achievement awards and payments for overtime worked will also be excluded within the scope of remuneration.

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Threshold | BCEA

In terms of the BCEA, employees earning in excess of the earnings threshold are excluded from the provisions which regulate ordinary hours of work, overtime, compressed working weeks, averaging of hours of work, meal intervals, daily and weekly rest periods, Sunday pay, pay for night work and pay for work on public holidays. This means that regulation of the aforementioned should be by mutual agreement and will not be regulated by the BCEA as is the case with employees earning below the threshold.

Threshold | LRA

In terms of the LRA, employees earning in excess of the earnings threshold are not subject to the provision deeming the employees engaged by a temporary employment service/labour broker, to be employees of the employer/client for purposes of the LRA. In addition, employees earning in excess of the earnings threshold fall outside the scope of the provisions relating to fixed term employees who are deemed to be employed indefinitely after three months (in the absence of justifiable reasons for fixing the term of the contract).

Threshold | EEA

An employee earning in excess of the earnings threshold who has a dispute under Chapter II relating to unfair discrimination, is not permitted to refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for arbitration. Such an employee is obliged to refer the dispute directly to the Labour Court for adjudication (unless the dispute relates to alleged unfair discrimination on the grounds of sexual harassment, or the parties all agree to arbitration).

It is vital for every employer to determine which employees earn in excess of the earnings threshold and which employees earn below the threshold, as this has a huge impact on the terms and conditions of employment the employer and employee can agree on. Employers must stay informed and up to date regarding labour law in order to take proactive action to protect their rights and their businesses with regards tot he employment relationship going forward.

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Compliance for Employers

3 types of labour inspections

Aug 28, 2020 | Articles, Business owners tips and advice

3 types of labour inspections

Our South African labour laws are extensive and rigid, leaving no room for negotiation. Many employers conduct their business with the sincere belief that they are adhering to the required labour regulations, although in reality this is often not the case. Failure to comply with these labour laws can result in significant financial repercussions, needlessly jeopardising your business.

The Department of Employment and Labour possesses the authority to enforce these labour regulations and carries out regular workplace inspections to ensure adherence thereto. There are three categories of inspections, each focusing on ensuring compliance with a specific set of laws, namely:

The Basic Conditions of Employment Act, which encompasses Sectoral Determinations and Main Collective Agreements;
The Employment Equity Act; and
The Occupational Health and Safety Act.

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The three categories of labour inspections:

Employers should be diligent in distinguishing between these distinct types of inspections to ensure overall compliance. The three categories of labour inspections encompass the following aspects:

Inspection under the Basic Conditions of Employment Act:
This inspection focuses on ensuring compliance with the minimum terms and conditions of employment that both the employer and employee can mutually agree upon, encompassing industry-specific legislation where applicable. The inspector will examine:
- The Employment contracts (written particulars of employment);
- Attendance records;
- Remuneration details – pay slips/envelopes, minimum wage, overtime, paid leave, working hours, etc.;
- Verification of UIF and COIDA registration along with proof of payments made; and
- Comprehensive list of employee names and corresponding ID numbers.

In case of non-compliance, the inspector will issue a dated compliance order to the employer. Subsequently, this can lead to the imposition of monetary penalties or even imprisonment.

Inspection under the Employment Equity Act:
This inspection’s focus is on the compliance of the Employment Equity Act, which strives to eradicate unjust discrimination in the workplace, while promoting equal opportunities and equitable treatment. Employers meeting specific criteria are known to be “designated employers,” with additional responsibilities. Employers must verify whether they classify as a “designated employer” to ensure conformity and compliance.
Non-compliance for a “designated employer” may result in a fine of R1.5 million for the first offense or 10% of the employer’s annual turnover (whichever is greater), and/or up to 10 years of imprisonment.

Inspection under the Occupational Health and Safety Act:
This inspection concentrates on compliance with health and safety regulations, aiming to establish a secure and healthy work environment. The inspector will scrutinize aspects like legislative posters, health and safety representatives and committees, relevant signage, personal protective equipment, and more.

If non-compliance is found, the inspector will provide the employer with a dated compliance order. Depending on the severity of the non-compliance, this could lead to temporary cessation of business activities or even penalties. Continuous non-compliance might result in penalties, imprisonment, and potential criminal prosecution.

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COVID-19 and my rights as employer

Jul 14, 2020 | Articles

COVID-19 and my rights as employer

With the COVID-19 pandemic in South Africa, it is important for employers to know that their rights are still valid and enforceable in the workplace. South Africa’s working environment is highly regulated and employers often feel that they are pulling at the shortest end. However, employers must realise that they have many rights in the workplace, but also the responsibility to enforce these rights.

Employers can claim the following rights:

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Employees’ fiduciary obligation to continuously act in the employer’s best interest

The relationship between the employer and employee is based on mutual benefits and respect. With employment, the employee undertakes to continuously act in good faith and promote the employer’s business interests. Any activity that negatively impacts on the employer-employee trust relationship should be viewed in a very serious light.

Fixed standards in terms of quality and quantity

It is the employer’s right to exercise control in the workplace with regards to work performance. It is important for the employer to establish clear standards in terms of quality and quantity that employees must comply with. Employers should also continuously evaluate employees in order to identify and address any poor work performance immediately.

Implementing clear rules in the workplace

Clear rules and guidelines limit friction and misunderstandings. It also promotes productivity and a positive working environment. The majority of rules in the workplace are implemented through the employment contract, with reference to working hours, leave, obligations, etc. Each workplace is unique however, and there is often a need for specific rules to establish order and structure. These rules are implemented through policies and procedures:

Policies are not underwritten by labour law and the employer should draft his own rules in the workplace. These rules must be reasonable.

A procedure is a fixed of official way to handle or deal with a situation. Procedures are put in place to inform employees and employers about the necessary steps to be followed when a specific incident occurs.

Applying discipline in the workplace

Each workplace must have a relevant and up to date disciplinary code to ensure that there are clear rules (with applicable sanctions) in the workplace for employees to follow. When employees violate these rules, the employer has the right to act.

Restructuring due to operational requirements

Operational requirements can force employers to adjust terms of employment. The purpose of this should be to create a cost-effective environment and to ensure that the business stays competitive in the market. Under no circumstances may these changes be made unilaterally and there is a strict procedure to be followed. Employers also have the right to refuse requests from employees based on operational requirements – take note that these decisions must be applied consistently.

The employer has to manage various business risks on a daily basis. Employers should be proactive and always follow the correct procedures with regards to all labour law matters. Contact the LWO at 086 110 1828 with any labour law inquiries – remember our 24/7 legal advice helpline is FREE and UNLIMITED for all our members!

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Compliance for Employers

Working from home

Jun 11, 2020 | Articles

Working from home

Working from home as an option: Employers have been navigating uncharted waters since the national lockdown was implemented end of March 2020. The lockdown was implemented to curb the spread of the COVID-19 virus in order to allow time to prepare South Africa’s health system’s capacity so as to be able to accommodate COVID-19 cases.

The pandemic has already had serious implications for many South Africans, as well as a negative economic impact on the country in general. Employers are concerned about staying operational during this declared disaster, especially with regards to loss of income and the employer’s responsibility towards employees.

Employers must make plans to manage businesses profitably and sustainably and many employers implemented the method (where practicable and workable) for employees to work from home. This limits the number of employees in the workplace and allows for certain business activities to continue, subject to set regulations and industry specific restrictions.

When employees are allowed to work from home, for whatever period of time, there of course advantages and disadvantages – consider the following:

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Infrastructure and working from home

Determine if the employee’s private residence allows the employee to perform his duties effectively. The employer has a duty to create and maintain a safe and healthy work environment. This obligation is extended to the employee’s private residence when the employee works from home. Identify the resources the employee will need to perform his duties, e.g. technology, cell phone, computer (hardware and software), internet access and data, stationery, support, etc.

Productivity and working from home

Employee productivity can increase or decrease when working from home. This depends on several factors, including the employee’s sense of responsibility, mindset, work ethic, distractions, environment, etc. It is very important that productivity is monitored and the employer communicates regularly and clearly with the employee regarding the expected performance. It is important to emphasize the employee’s outputs: set measurable targets with deadlines that are in line with the employer’s fixed standard.

Discipline and working from home

The employer must set clear guidelines for the use of the employer’s property, referring to both physical and intellectual assets. It is vital that employees respect the employer’s property as such, as well as the responsibility to utilise it in the employer’s interest. Businesses suffer enormous financial losses due to employees that misuse or damage the employer’s property, whether as a result of negligence, or with intent.

The most common misconduct linked to employees working from home include absenteeism, misuse of the employer’s property and moonlighting – when the employee takes up a second job without the primary employer’s permission.

The seriousness of the offence is influenced by the employee’s type of work and responsibility, whether the misconduct was due to negligence or with intent, the (possible) consequences of the misconduct and the impact of the misconduct on the employer-employee relationship of trust.

Be proactive

Ensure that the employer’s disciplinary code is relevant and up to date with regards to offences and applicable sanctions and that all employees are aware of what the code entails.
Ensure that every employee has a detailed job description listing the employee’s duties, as well as the employer’s expectations.
Implement a policy with regards to the personal use of equipment. Employers must be reasonable and fair and apply discipline consistently.
Regular communication creates a platform for employees to give feedback with regards to challenges, need and suggestions.

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