South African labour legislation provides employees with a multitude of different entitlements to leave including annual leave, sick leave, family responsibility leave, maternity leave, parental leave, adoption leave, commissioning parental leave and study leave. However, there still seems to be many employees that confuse family responsibility leave with other forms of leave, as well as when they are entitled to take family responsibility leave.

Employers in the agricultural sector regularly have queries regarding farmworkers who insist on combining family responsibility leave with other forms of leave, e.g. taking either family responsibility leave and/or sick leave to attend to their children’s routine clinic or hospital check-ups.

Mythbusters #1 & #2:

1.  A farmworker is not entitled to paid family responsibility leave to take a child for a routine check-up visit to a clinic.

2.  A farmworker cannot utilise his/her own sick leave to take a child for a routine check-up visit to a clinic.

Family responsibility leave

Family responsibility leave is a leave entitlement contained in labour law that allows an employee to attend to certain specified familial responsibilities, such as if the employee’s child, or adopted child, is ill. Whereas sick leave allows the employee him-/herself time off from work to recover from an incapacity which renders them temporarily incapable, or medically unfit for work, due to illness or injury.

Mythbuster #3:

3.  A farmworker is not entitled to take family responsibility leave with the birth of their children.

Approximately four years after the law has changed, this popular misconception still exists. Previously the law made provision for an employee who was the spouse, or life partner of a person giving birth to a child, to take three days’ family responsibility leave. However, the law has since changed to allow for the inclusion of other forms of leave. As from the 1 January 2020 farmworkers (other than their spouses/life partners who are on maternity-, adoption- or commissioning parental leave) are no longer entitled to the three days’ family responsibility leave for the birth of their child but are now entitled to unpaid parental leave.

Currently the Basic Conditions of Employment Act (as amended), more commonly known as the BCEA, read together with the Sectoral Determination number 13 (applicable to the agricultural sector), is the main legislative authority on the law surrounding family responsibility leave for farmworkers.

Requirements to qualify for family responsibility leave

In essence the law currently provides that farmworkers are entitled to three days’ paid family responsibility leave per annual cycle, provided that they have been employed for a period of longer than four months and work at least four days per week for the employer.

Family responsibility leave may be taken in full or in days, as it is needed. In the event of a farmworker requesting family responsibility leave, the employer may require reasonable proof, such as a medical or death certificate.

Employers are only required to grant farmworkers paid family responsibility leave, if they have sufficient family responsibility leave left, and only in the following instances:

• When the farmworker’s child is ill; or
• In the event that anyone of the farmworker’s below-mentioned family relatives should pass away:
  • the farmworker’s spouse/life partner,
  • the farmworker’s child/adopted child,
  • the farmworker’s parent/adopted parent,
  • the farmworker’s sibling,
  • the farmworker’s grandparent,
  • the farmworker’s grandchild.

Setting a precedent

The employer does have the discretion to allow for more time off, or to allow a farmworker to take other forms leave such as annual or special leave, which could be paid or unpaid leave, if the farmworker’s family responsibility leave entitlement has been exhausted. However, if the employer does grant additional paid leave in these instances, it can be viewed as an additional benefit to the farmworker, and which might also set a precedent in the workplace and therefore the employer should take care to act consistently in granting similar benefits towards all employees.

By clearing up these misconceptions, we can promote a better understanding of the rights and entitlements of farmworkers in South Africa, ensuring that both employers and employees in the agriculture industry receive fair treatment and support to balance their work and family responsibilities.

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1. SEXUAL HARRASMENT IN THE WORKPLACE

The scope of sexual harassment legislation has expanded to include psychological abuse and cyberbullying in the workplace. This comprehensive definition necessitates an update of company sexual harassment policies to address offences such as offensive conduct, hostile teasing, and discriminatory language.

The CCMA has further published an Amended Code of Good Practice on how to handle sexual harassment in the workplace. The code of good practice clearly sets out the process and procedure as well as what can be classified as sexual harassment and who can commit these acts in the workplace.

2. POPI ACT/PAIA ACT

3. ADJUSTED EARINGS THRESHOLD

Employees earning above the earnings threshold as from 1 April 2024 which is the amount of R 21 197,64 per month are excluded from certain sections of the Basic Conditions of Employment Act. This includes ordinary hours of work, overtime, compressed working weeks, and more. Employers need to negotiate these conditions individually during contract negotiations.

The effect of the earnings threshold is that the limitations, protections or the right to additional pay afforded by certain provisions of the BCEA, do not apply to employees earning in excess of the new threshold. These provisions are:

• section 9 (hours of work)
• section 10 (overtime)
• section 11 (compressed working week)
• section 12 (averaging of hours)
• section 14 (meal intervals)
• section 15 (daily and weekly rest periods)
• section 16 (pay for work on Sundays)
• section 17 (2) (night work), and
• section 18 (3) (public holidays on which the employee would not ordinarily work).

4. AMENDMENTS TO THE UNEMPLOYMENT INSURANCE FUND (UIF)

The Unemployment Insurance Act has been amended to increase UIF benefits from 238 to 365 days. Public servants are now included and covered under the UIF in the event of a dismissal. Workers will also observe a reduced credit cycle that is required to be eligible to claim UIF. The amendment also provides for the extension of the unemployment insurance benefits to learners who are undergoing learnership training and civil servants. The amendment was made to improve service delivery by the Unemployment Insurance Fund (UIF) and deliver increased access and benefits for hundreds of thousands of retrenched and dismissed workers.

5. EMPLOYMENT EQUITY ACT

6. AMENDED CCMA RULES

• Compliance with data protection legislation, such as the Protection of Personal Information Act 4 of 2013 (POPIA).
• Modes of service and filing.
•  Condonation.
•  Postponements.
•  Picketing rules.

a). Compliance with data protection legislation, such as the Protection of Personal Information Act 4 of 2013 (POPIA).

b). Modes of service and filing

A significant amendment throughout the Rules is the removal of fax as an accepted form of filing. Rule 2(3) and Rule 7(2) have been amended to reflect this change.

The CCMA’s official electronic referral online portals are now the preferred method for communication.

These amendments are reflected in various rules. For one, parties may apply for condonation under Rule 9(2A) on the online portals. Parties may also now refer a dispute for conciliation and arbitration on the online portals, under Rules 10(1) and 18(1), respectively.

Previously, if all parties agreed to a postponement seven days before a hearing, the CCMA was under an obligation to postpone the proceedings. The word “must” in Rule 23(2) has now been changed to “may” to reflect that “The Commission may postpone an arbitration without the parties appearing”. In addition, Rule 23(5) has been added to the Rules, which confirms that “There is no right to postponement.”

This signals that securing postponements in the CCMA are going to be more difficult in future.

e). Picketing Rules

Rule 13(1A) brings the issue of picketing rules in line with the law and provides that picketing rules must first be established before a certificate of non-resolution can be issued, unless a signed picketing agreement is provided to the CCMA at the conciliation.

Additionally, Rule 31A now prescribes the process to be followed in applying for urgent picketing rules or the determination of disputes relating to them. The section relates to applications for picketing rules in terms of section 69(6B), disputes relating to picketing agreements and disputes concerning section 69(8) of the Labour Relations Act 66 of 1995 (LRA). Importantly, unless agreed otherwise by the parties, the CCMA must set down the application within two days of receipt of the application.

Prior to the amendments to the Rules, the old Rule 3(2) provided that when calculating time periods, the last day must be excluded if it falls on a Saturday, Sunday, public holiday, or the period between 16 December and 7 January. That part of the rule which referred to the period between 16 December and 7 January has now been removed in the amendments to the Rules.

This removal also suggests that the CCMA may now continue to schedule matters in the period between 16 December and 7 January for processes.

Rule 30(1) now obliges the Commissioner to establish the reason for non-attendance. If there is a good reason for absence, only then will the Commissioner reschedule. The referral will not be dismissed as was the case previously. This was the result of a change subsequent to a Labour Court judgment which gave rise to removals from the roll and not a dismissal of the claim.

Rule 31C now prescribes the process to be followed for a request to have an arbitration re-enrolled. A party may now submit a request for re-enrolment within 14 days of becoming aware that the matter has been removed from the roll. The rule also provides for the other party to oppose within seven days from receipt of the request for re-enrolment. This is helpful as there has been much uncertainty around opposition of the last period.

On October 25, 2023, a groundbreaking legal development unfolded in the Gauteng High Court with the case of Van Wyk and Others v Minister of Employment and Labour [2023]. In a pivotal judgment, specific sections of the Basic Conditions of Employment Act, 1997 (BCEA), and the Unemployment Insurance Act, 2001, were declared unconstitutional and null. The focus of these contested sections was on matters of maternity, parental, adoption, and commissioning parental leave. The court’s verdict was firmly rooted in the argument that these provisions infringed upon the fundamental rights to equality and dignity, as protected by sections 9 and 10 of the Constitution of the Republic of South Africa, 1996.

The driving force behind the court’s decision rested on the assertion that the BCEA unfairly differentiates between parents based on their roles, whether mothers or fathers, adoptive parents, or those with children through surrogacy. Crucially, the court took a holistic view, considering the best interests of the child and stressing that caregiving leave entitlements under the BCEA aim not only at the physiological recovery of the birthing parent but also at nurturing a newborn or toddler.

It is essential to note that the court clarified that while certain aspects were deemed unconstitutional, provisions addressing the physiological recovery of a birthing mother were exempt from this ruling.

Questions and answers

• Status of parental leave: Families would now have the choice to designate the primary caregiver. The four months of parental leave, formerly known as maternity leave, can be shared between parents if they so choose.

• Duration of leave for each parent: Contrary to the assumption that each parent receives a four-month leave individually, the four-month leave period is per family and can be distributed between parents based on their agreement.

• Administrative burden: The Department of Employment and Labour is yet to provide guidelines regarding the administrative aspects of implementing the new parental leave arrangements.

• Implementation timeline and employer status: As of now, the High Court judgment has not triggered immediate changes. The order has been referred to the Constitutional Court for validation, currently in the process. The Constitutional Court is scheduled to hear the case, with a potential timeline placed in the third term of 2024. Should the order be upheld, parliament will have two years to draft legislation aligning with the ruling.

• Impact on UIF parental and maternity leave benefits: Under interim relief, all parents are entitled to a continuous four-month parental leave. Parents of a qualifying child have the flexibility to decide how to divide this period between them. Notably, any portion of the four months taken as leave by a parent, regardless of their role in childbirth, is eligible for UIF benefits.

In conclusion

In conclusion, the High Court judgment does not change anything at this time, however, once legislation is potentially drafted depending on the Constitutional Courts outcome the Van Wyk judgment could reshape the landscape of parental leave in South Africa.

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On 2 February 2024, the Minister of Employment and Labour published the revised national minimum wage in the Government Gazette. The amended minimum wage is scheduled to take effect on 1 March 2024.

COMPLY WITH LABOUR LAW

As an employer, it is crucial to consistently comply with labour legislation, including any amendments or corrections issued by the Department of Employment and Labour. In light of this, it is essential that you adjust the national minimum wage rate for your employees, ensuring compliance with the amended national minimum wage effective from 1 March 2024.

GOVERNMENT GAZETTE

Please click on this link to read the Government Gazette confirming the wage increase.

Contact the LWO for assistance at 0861 101 828 or send an email to info@lwo.co.za to ensure you follow the correct procedure when adjusting an employee’s compensation, or if you have any queries in this regard.

South Africa’s Employment Equity Act, 55 of 1998 (“EEA”) stands as a pivotal legislative framework designed to enforce equality and fair treatment within the workplace. Compliance with this Act is of paramount importance for various reasons that extend beyond mere legal requirements.

At its core, the EEA seeks to eradicate unfair discrimination and to foster equal employment opportunities for all employees, irrespective of factors such as race, gender, disability, or other designated grounds. By aligning workplace practices with the principles of equality and fairness, businesses contribute to the creation of an inclusive environment that values diversity.

Penalties

Penalties await those who fail to comply with the requirements as set out in the Employment Equity Act, emphasising the necessity for employers to prioritise compliance with the Act to avoid penalties. Moreover, businesses that demonstrate a commitment to equality and diversity often build a positive reputation, enhancing their image as socially responsible and ethical employers.

Strategic business advantages and the Employment Equity Act

Compliance with the Employment Equity Act also holds strategic business advantages. It can open doors to various opportunities, as many government and private sector contracts require adherence to employment equity legislation. Embracing diversity and inclusion contributes to higher employee morale and satisfaction, fostering a positive working atmosphere that, in turn, boosts productivity.

Furthermore, organisations that actively promote diversity may gain a strategic edge in attracting top talent. Diverse workforces bring a range of perspectives and ideas, fostering innovation and creativity. In essence, compliance with the Employment Equity Act is not only about meeting legal obligations, it is a commitment to building a society that values and promotes equal opportunities for all.

In conclusion, adherence to the Employment Equity Act goes beyond it’s legal requirements. It reflects a commitment to social responsibility and ethical business practices, contributing to a more equitable and inclusive society. By promoting equality and fair treatment, businesses can benefit from legal protection, a positive reputation, and improved employee satisfaction and productivity.

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Restaurant owners often employ people on a commission basis within their restaurant usually in an attempt to gain assistance.  What many employers do not realise is that this type of employment, which is almost always verbally concluded, has its own requirements and rights conferred which must be adhered to. Often employers end the contract summarily when they don’t want or need the employee anymore for whatever reason and then have to face the consequences of an unfair dismissal at their respective Bargaining Councils*.

COMMISSION WORK:  THE DEFINITION

In order to understand and adhere to the requirements, it is necessary to first explain its definition: in the restaurant industry “commission work” is defined as a worker taking on the role of a waiter and earning a salary through the commission or “tips” he/she earns. The worker will then be paid on the day or as agreed in terms of the contract or the respective Bargaining Council’s main collective agreement.

The most important requirement that employers need to be aware of, is that this agreement between the parties needs to be in writing. This is to protect both the employer and employee’s rights should a dispute arise. The contract should also state whether the employee would be employed permanently or only for a fixed term.

ADDRESS THE FOLLOWING

The following points need to be addressed in the contract:

• The worker’s rate of commission.
• The basis for calculating commission.
• The period over which the payment is calculated (the Bargaining Councils’ main collective agreements restrict this period to one month).
• When the employer shall pay the commission to the employee (the Bargaining Councils’ main collective agreements restrict this period to not more than seven days after the end of the earning period).
• The type, description, number, quantity, margin, profit or orders (individual, weekly, monthly or otherwise) for which the employee is entitled to earn commission.

COMMISSION VS A MINIMUM WAGE?

Because these workers do not earn a fixed salary, there is a possibility of them not earning any, or enough commission even if they have worked in terms of the agreement. Therefore, the respective main collective agreements require employers to comply with the regulations of the National Minimum Wage Act 9 of 2018 to ensure that commission workers are still paid the minimum wage if they do not earn an amount equivalent or exceeding that of the minimum wage. Employers should therefore compare the amount of commission the employee has earned to the number of hours worked. If the commission does not reach the equivalent of the minimum wage per hour worked, then the employer has the responsibility to pay the difference.

AVOID THIS MISTAKE

Many employers make the mistake of thinking that because the employee only earns commission, the employee is not in fact an “actual employee of the business” and they therefore don’t have to comply with employment procedures as with a normal employee.  Legislation and case law confirms that commission workers are considered employees in terms of their contracts.  Non-compliance with labour law can have a huge financial impact, especially when it comes to termination of the employment relationship, and employers should take care to be informed about their duties and responsibilities.

EMPLOYMENT CONTRACTS

An employment contract is crucial in managing labour relations as it is the basis of the relationship between the employer and the employee.  It defines the terms and conditions as agreed upon between the parties and regulates their relationship.  Furthermore, the employment contract describes rules and responsibilities to be adhered to by both the employer and the employee.  The employment contract is vital to keep confusion and discontent in the working relationship to a minimum.  By including additional information in the employment contract employers empower themselves and can proactively manage possible future disputes, saving time and money.

*“Bargaining Councils” refers to the Bargaining Council for the Restaurant Catering and Allied Trades (Johannesburg); Bargaining Council for the Food Retail, Restaurant, Catering and Allied Trades (Pretoria) and the Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades (Rest of South Africa) as a collective.