THE FOLLOWING LEGISLATION REGULATES LABOUR RELATIONS IN SOUTH AFRICA IN GENERAL:

• Labour Relations Act, Act 66 of 1995 (LRA)
  The LRA remains the principal labour statute and regulates collective rights and also provides protection against labour practices, including unfair dismissals, unfair labour practices, incapacity and retrenchments. The LRA regulates trade unions and employers’ organisations and establishes key dispute resolution agencies in the form of the CCMA and labour courts.

• Basic Conditions of Employment Act, Act of 1997 (BCEA)
  The BCEA establishes and enforces the minimum statutory terms on which employers and employees may contract.

• Sectoral Determinations
  A Sectoral Determination controls the terms and conditions of employment in a particular sector where there is no centralised collective bargaining and which requires detailed and specific regulations. Conditions in a Sectoral Determination may differ from those in the BCEA, but will rank superior.

• Bargaining Council Agreements
  Bargaining Councils deal with collective agreements, solve labour disputes, establish various schemes and make proposals on labour policies and laws. Trade unions and employers’ organisations may form Bargaining Councils.

• Employment Equity Act, Act of (EEA)
  The EEA prohibits unfair discrimination in employment, defined to include a wide range of policies and procedures. It also requires designated employers (employers with 50 or more employees, or an annual turnover as specified in Schedule 4 of the EEA) to formulate an Employment Equity plan (EEA13) and to submit reports (EEA2 and EEA4) to the Department of Labour.

• Skills Development Act, Act 97 of 1998 (SDA)
  The SDA regulates standard settings, training and development by requiring employers (with an annual expenditure on salaries exceeding R500,000.00) to contribute 1% of their payroll to the fund infrastructure established by the SDA.

• Unemployment Insurance Fund (UIF)
  UIF provides short term relief to workers when they become unemployed or are unable to work because of maternity leave, adoption leave, parental leave, commissioned parental leave or illness. It also provides relief to the dependants of a deceased contributor. It is the employer’s responsibility to pay over the unemployment insurance contributions (2% of the employee’s salary although both the employer and employee equally contribute 1%).

• Compensation for Occupational Injury and Diseases Act, Act 130 of 1993 (COIDA)
  When injured on duty or becoming sick as a result of your work, an employee can claim compensation from the Compensation Fund. Families or dependants can also claim if their breadwinner dies as a result of a work-related accident or disease. All employers must register with the Compensation Commissioner and will be rated annually, after which payments must be made.

• Occupational Health and Safety Act, Act 85 of 1993 (OHSA)
  OHSA regulates health and safety conditions in the workplace. Legislation applies to all employers in terms of creating a safe and healthy working environment. Certain regulations must be implemented when the employer employs five or more employees.

Duties of employers

Employers have three duties:

1. To receive the employee into service
   • According to the BCEA all employers should provide an employee with a written contract within at commencement of employment;
   • Employers are further obliged to accord employees their rights in terms of the applicable contracts of service, collective agreements and legislation. Take care that the contract is not less favourable than the applicable legislation which should be adhered to.
2. To pay the employee’s remuneration
3. To ensure that working conditions are safe and healthy

The relationship between the employer and the employee is based on mutual benefits and respect. Clear rules and guidelines ensure that friction and misunderstandings are kept to a minimum, which in turn promotes not only productivity but also a positive working environment. The employer must therefore have clear rules and guidelines in the workplace and ensure that every employee is aware of these rules.

Please contact the LWO Employers Organisation for more information at 0861 101 828 | info@lwo.co.za | www.lwo.co.za

What to expect when your employee’s expecting… Life is full of firsts, and this might be your first time as employer having an employee who is pregnant. Naturally, you may wonder, “What should I expect and what is expected of me as an employer?” That’s where the “Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child” provides essential guidelines for employers to support and protect pregnant or breastfeeding employees. It outlines the employer’s general responsibilities, including risk assessments, reasonable accommodations, and maternity leave provisions. Note, however, that the Code may be reasonably adapted depending on the specific business’s workplace circumstances and occupational health requirements.

Legal requirement #1: Non-discrimination

Employers are legally prohibited from discriminating against, or dismissing employees due to reasons relating to pregnancy, a protection which is reinforced by both the Labour Relations Act and the Employment Equity Act.

Take note: Employees who are unfairly dismissed on this ground can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) or applicable Bargaining Council. Such a dismissal would be considered automatically unfair and would put the onus on the employer to prove the contrary. The compensation awarded in such a case can be up to 24 months’ worth of the employee’s salary.

Legal requirement #2: Safe work environment

Employers are obligated to maintain a workplace free from health risks, including those affecting reproductive health. Key responsibilities include:

• Conducting thorough risk assessments to identify and mitigate hazards specific to pregnant and breastfeeding employees.
• Implementing measures to limit or eliminate identified risks, ensuring ongoing safety. This might involve modifying workstations, adjusting work schedules, or providing special equipment.
• Providing comprehensive information and training on health and safety risks and protective measures.
• Involving worker health and safety representatives in risk assessments and controls.
• Ensuring employees take reasonable steps to safeguard their own and colleagues’ health and safety.

Legal requirement #3: Protecting the health of pregnant and breastfeeding employees

Employers must prioritize the health and safety of pregnant and breastfeeding employees under Section 26 of the BCEA, which prohibits hazardous work. Key responsibilities include:

• Risk assessment: Identifying workplace risks specific to pregnant or breastfeeding employees and implementing necessary protective measures and adjustments to mitigate these risks effectively.
• Alternative employment: Offering suitable alternative roles if current work poses health risks during pregnancy or breastfeeding, ensuring terms are fair.
• Notification and evaluation: Encouraging early pregnancy notification to promptly assess workplace risks, including evaluating physical conditions and job tasks to determine appropriate accommodations.
• Risk mitigation: Informing employees of identified risks, consulting on preventative measures, providing necessary training, and considering occupational health consultations for uncertain adjustments.
• Health monitoring: Maintaining ongoing risk assessments throughout pregnancy and breastfeeding, supporting clinic attendance and necessary breaks for breastfeeding employees.
• Aspects of pregnancy affecting work: Both employers and employees should consider these common aspects of pregnancy impacting work:
  • Morning sickness: Employees may struggle with early shifts and heightened sensitivity to strong smells exacerbating nausea.
  • Physical strain: Prolonged standing or sitting can lead to backache and varicose veins, while manual handling tasks can also contribute to discomfort.
  • Increased toilet needs: Ensuring access to suitable toilet facilities is crucial, especially considering challenges in leaving work unattended.
  • Fatigue: Tiredness may limit overtime and evening work capability, necessitating consideration of rest periods for adequate recovery.

This article is intended as a brief and general overview of some of the considerations that employers need to consider. The code contains more detailed information and schedule of hazard examples and best practices to mitigate risks effectively. For advice and a copy of the code please contact the LWO on 0861 101 828.

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The availability of safe public transportation for employees working beyond ordinary working hours, is a critical aspect of ensuring workplace safety and compliance with regulatory frameworks.   This is just one of the many principles we take away when looking at the Labour Appeal Court (LAC) judgment of TFD Network Africa (Pty) Ltd v Singh NO & Others [2017] 4 BLLR 377 (LAC). In this judgement the LAC sheds light on the obligations of employers regarding transportation for employees required to work overtime or night shifts.

Basic Conditions of Employment Act

Under the Basic Conditions of Employment Act (BCEA), specifically Section 17(2)(b), employers can only allow and/or require employees to work night work if transport is available between the workplace and an employee’s place of residence. Night work in terms of the BCEA is work which extends beyond 18h00 and concludes before 06h00 the following day. This provision is not limited to regular night shift workers but extends to any employee required to work beyond these hours, including overtime.

The BCEA also makes provision for the Code of Good Practice on the Arrangement of Working Time, which further provides that employers who engage employees on night work should ensure, among others, that employees are able to obtain safe, affordable transportation between their places of residence and their workplace.

The LAC judgement

The LAC judgement of TFD Network Africa (Pty) Ltd v Singh NO & Others highlighted the importance thereof that an employer must ensure that transport is available, and that the employer must consider the safety of employees, especially in potentially hazardous situations such as commuting late at night. The LAC ruled that an employer cannot unreasonably expect an employee to find their own way home after working late, even if it involves overtime beyond normal working hours. The Court further also indicated that an employee is entitled to raise the absence of these measures as a defence to a charge of failing to perform night work, or disobeying an instruction to perform night work, where these measures are not in place.

In practical terms…

In practical terms, ensuring compliance involves several key steps for employers:

• Firstly, it requires a thorough review of existing policies to ensure they align with legal requirements under the BCEA/relevant Bargaining council’s collective agreement, regarding the provision of transportation.
• Secondly, conducting regular risk assessments is essential to evaluate the safety of transport options available to employees, especially in areas prone to security risks or lacking adequate public transport infrastructure.
• Thirdly, engaging in consultations with employees helps to understand their commuting challenges and preferences, which informs transportation arrangements that prioritize both safety and convenience.
• Finally, it is crucial to clearly document transport arrangements and communicate these effectively to employees to ensure transparency and understanding of their rights and entitlements.

Conclusion

This LAC judgment clarifies several important points:

• The obligation to ensure transport is available is universal and not contingent on an employee constantly working night shifts; it applies whenever work extends beyond 18:00, regardless of shift patterns or overtime agreements.
• Employers must thoroughly assess the safety of the transportation that is available, or which they provide, ensuring it adequately protects employees during their commute. This includes considering the geographic location, safety of routes and the specific circumstances of each employee.

By adhering to these obligations, employers not only uphold legal compliance but also prioritise the health, safety, and well-being of their workforce which promotes a supportive and compliant workplace environment.

This article is intended to be a brief and general overview of some of the complexities of modern work arrangements that employers need to consider when scheduling shifts and night work. For advice, please contact the LWO on 0861 101 828.

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Section 34 of the Basic Conditions of Employment Act (BCEA) outlines the prerequisites that must be satisfied before any deductions can be made from an employee’s remuneration.

What are the consequences of deducting money from the employee’s remuneration without his/her consent?

The employee has the right to raise a dispute internally regarding the alleged unlawful deduction. If such a dispute is raised internally, it must be dealt with, and feedback must be provided to the employee. If the dispute is not resolved, the employee has the right to refer the dispute to an external dispute resolution.

Which external dispute resolution has the right to deal with a dispute regarding alleged unlawful deductions?

Section 77 of the BCEA provides that the Labour Court has exclusive jurisdiction over all disputes arising from the Act.  Therefore, in terms of Section 77, the Labour Court has jurisdiction to deal with disputes relating to unlawful deductions.

This principle was confirmed in the matter of O’Reilly v CCMA and Others JR 2395 19, where the Court held that “there is no provision in the BCEA that says that the CCMA has jurisdiction to determine a claim regarding an alleged breach of Section 34(1) of the BCEA”.

Does the CCMA have jurisdiction?

No, the Commission for Conciliation, Mediation and Arbitration (CCMA) does not have jurisdiction to adjudicate a dispute for unlawful deductions.  If a matter is referred to the CCMA where the employee is disputing the deductions made, a point in limine can be raised in which arguments are to be lead that the CCMA lacks jurisdiction and that the matter can only be entertained by the Labour Court.

The CCMA will only have jurisdiction to adjudicate matters that relates to monies owed to an Applicant in terms of Section 73A, which includes salaries, bonuses, amounts due in terms of the National Minimum Wage Act (NMWA), and any amounts that the employer is obligated to pay in terms of the BCEA, but excludes deduction disputes.

Tips to keep in mind:

• Employers may lawfully deduct specific amounts from an employee’s salary with their written consent and if required or permitted in terms of a law, collective agreement, court order or arbitration award.
• The amount deducted from an employee’s salary may not exceed one-quarter of the employee’s remuneration in money (per payment).
• The CCMA lacks jurisdiction to adjudicate disputes regarding Section 34 of the BCEA relating to deductions made, and the dispute should be referred to the Labour Court instead.

Labour legislation strictly regulates any deductions made from an employee’s remuneration, and employers must guard against deducting any money without following the correct procedure. 

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The evolution of the workplace has seen a significant shift in recent years, especially with the increasing acceptance of remote work. Initially born out of necessity during global crises such as the COVID-19 pandemic, working from home has transformed from a temporary solution to a permanent feature in many companies in South Africa. From an employer’s perspective, this shift not only challenged traditional business models, but also unlocked an abundance of opportunities and benefits for both employers and employees.

Advantages of remote work

• Productivity: One of the most significant advantages observed by employers with remote work is an increase in productivity. Contrary to initial apprehensions that employees might be less productive outside a traditional office setting, many companies have reported the opposite. With fewer office distractions and reduced commute times, employees are often able to focus better and complete tasks more efficiently.

• Cost savings: Transitioning to remote work can also lead to substantial cost savings for businesses. Reductions in office space requirements translate directly into decreased overhead expenses such as rent, utilities, and office supplies. Similarly, employees benefit by saving on commuting costs, parking fees, and daily meal expenses. For instance, many companies have adopted permanent remote or hybrid models, anticipating savings from reduced office space needs. These savings can then be redirected into other strategic areas such as technology upgrades, employee training, and development, or even increasing profitability.

• Employee satisfaction and retention: Offering remote work can significantly enhance employee satisfaction and retention. It allows employees to maintain a better work-life balance, reducing stress and burnout. Employers have noted that remote work policies have become a key factor in attracting and retaining top talent. Moreover, flexible working conditions are particularly attractive to the millennial and Gen Z workforce, who prioritise flexibility and personal well-being over more traditional workplace benefits.

Navigating challenges

Despite these benefits, remote work does present certain challenges from an employer’s perspective.

• Communication and collaboration: Ensuring communication and collaboration in a remote setting requires the right technology and a shift in management practices. Employers must invest in secure and efficient communication tools and platforms to facilitate seamless teamwork. Additionally, maintaining company culture and employee engagement without physical interaction demands an innovative approach, such as virtual team-building activities and regular check-ins.

• Leadership skills: It is essential to equip managers with the skills needed to effectively lead remote teams. They must excel in managing team dynamics and performance, even in the absence of traditional, in-person interactions. This requires placing a greater emphasis on results over procedures and cultivating a culture of trust and accountability.

Moving forward

As we move forward, the future of work appears to be hybrid – a blend of remote and in-office arrangements. This model promises to combine the best of both worlds, providing flexibility while retaining the benefits of physical office space for collaboration and social interaction. For employers, the key to successful integration of remote work lies in adapting leadership styles, investing in technology, and maintaining ongoing communication with employees.

While the transition to a remote or hybrid work environment poses challenges, the advantages, from increased productivity and cost savings to enhanced employee satisfaction, are compelling. Employers who embrace and adapt to these changes are likely to thrive in the evolving business landscape, marking a significant shift in how work is perceived and conducted in the modern era.

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EMPLOYERS DUTIES:

1. Provide an employee with a contract:
An employer must supply an employee, when the employee commences employment, with the following particulars of employment in writing:

•  full name and address of employer;
• name and occupation (with a brief description of the work) of the employee;
• place of work;
•  commencement date;
• ordinary hours and days of work;
• remuneration – wages, overtime, other cash payment, any payment in kind, etc.;
•  deductions;
• frequency of payment;
•  leave;
• statutory notice periods;
•  a list of documents that form part of the employment contract;
• description of any council or sectoral determination applicable; and
•  period of employment with a previous employer that counts towards the current employment period.

Tip: Take care that the contract is not less favourable than the applicable legislation which should be adhered to.

•  employer’s name and address;
• employee’s name and occupation;
• period of payment;
•  employee’s remuneration in money and wage rate;
•  hours worked – ordinary hours, overtime, Sunday time and hours worked on a public holiday;
• deductions;
• actual amount paid to the employee.

Tip: Records must be kept for at least 3 years from date of last entry.

Risk: Any person that is found guilty of non-compliance with this act will be liable to a fine of up to R50 000.00 and/or imprisonment

The Act requires designated employers to:

• Consult with employees.
• Conduct an analysis.
• Prepare an employment equity plan.
•  Report to the Director-General on progress made in implementing its employment equity plan.

Risk: Any designated employer that is found guilty of non-compliance with this act will be liable to a fine of up to R2,7 million or 10% of the employer’s annual turnover, whichever is the greatest

5. Register for UIF:
Registration for UIF must be done as soon as employment of the employee commences. 1% of the salary is deducted from the employee’s salary as well as an equal contribution by the employer monthly, which is the employer’s responsibility to make the deductions and pay the monies over.

Risk: The UIF will be able to levy a fine of 10% on all unpaid contributions, and the financial committee will also calculate interest that is due should an employer not comply with the legal requirements

6. Report any injuries on duty, no matter how small:
COIDA applies to all employers and casual and full-time employees who, as a result of a workplace accident or work-related disease are injured, disabled, or killed or become ill. An employer carrying on business in South Africa, must register with the Compensation Commissioner. An employer must notify the Compensation Commissioner of an accident (personal injury, illness or death of an employee) within 7 days after having received notice of an accident or becoming aware of an accident that took place.

Tip: An employer only has to pay 75% of employee’s earnings for the first 3 months of injury or illness (temporary total/partial disablement), which can be claimed back from the Compensation Commissioner;

7. Pay your Skills Development levy:
If the employer has staff registered for PAYE and the annual payroll exceeds R500 000.00 per annum, the employer must register with SARS and pay a skills development levy of 1% of the monthly payroll.

Risk: SARS will impose both interest and penalties for late or non-payment of skills development levies. A labour inspector may order the company to stop work if the company is found guilty of illegal practices and/or a discretionary fine can be imposed by a court and/or 1 year imprisonment