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1
MAR APR 2022
SEIFSA COO wants SA’s operating environment to be more business friendly Big win for governement, In wage bill battle Paid holidays for the metal industry
Metals Sector Urged to seize South Africa’s beckoning Steel Master Plan Opportunity
Content Big win for government in wage bill battle
SEIFSA welcomes back Tafadzwa Chibanguza as Chief Operating Officer
36
SEIFSA COO wants SA’s operating environment to be more business friendly
38
Suspension for not vaccinating
40
10 12
We Need to Let Go of the bell curve
14
World of Work
23
Harassment in the Workplace - Employers to note their obligations under the new Code
26
Welders are a Dime – a dozen but quality welders are not
28
SA Government tight rope – View point ot of TES
32
Accredited Temporary Employment Service Providers
29
33
44
Mandatory Vaccination
National Minimum Wage and Earning threshold increased
Get to know Lucio Trentini
What to expect when you’re expecting covid-19 restrictions to be lifted
Could employers who don’t offer remote working loose valuable talent?
59
How to be vulnerable at work Without spilling every thing
62
Powered by
56 New case deals with a SA Worker who was fired for complaining too much
47
Post termination confidentiality restrictions are they worth anything?
50
SA’s New Privacy Rules leave business with Covid Vaccine headache
53
What to expect when you’re expecting Covid-19 restrictions to be lifted
56
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ISSN - 1560 - 9049 Opinions expressed in the articles do not necessarily reflect the views of SEIFSA. Similarly, advertising in this publication does not imply endorsement or approval of any such products or services by SEIFSA. While every attempt is made to ensure the accuracy and correctness of information contained in this publication, SEIFSA accepts no liability for any losses or damages sustained through the use thereof. Articles may only be reproduced with permission. Advertorials When a company logo appears with an article, it indicates that the article has been commissioned by the company. SEIFSA News is distributed free of charge to all companies in the metals and engineering industry. 6 issues published annually.
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Metals sector urged to Seize South Africa’s beckoning Steel Master Plan Opportunity
President Cyril Ramaphosa highlighted the Steel Master Plan in last month’s State of the Nation Address. An upbeat Lucio Trentini, in his capacity as the CEO of the nigh-80-year-old Steel and Engineering Industries Federation of Southern Africa (Seifsa), described the challenges faced by the metals and engineering sector as being “quite daunting” and highlighted the
South Africa’s historic metals sector employer organisation urged all the sector’s employer bodies to roll up their sleeves on May 19 and 20 and get their teeth into the Steel Master Plan, which is seen to have promising reindustrialisation elements.
amazing resilience that members had displayed in the last 12 to 18 months. Seifsa has a combined membership of more than 1 200 companies that employ more than 170 000 personnel. Formed in 1943, its members range from giant steelmaking corporations to microenterprises employing fewer than 50 people. “The message that I want to put out is that this industry stands ready to make its contribution to translating government’s vision of reindustrialising the metals and engineering sector, and to start translating visions, promises and policy into action and deliverables
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“What we need is for the government
The
knock-on
effects
are
felt
to roll out its promised infrastructure
throughout the economy owing to the
spend, which is absolutely central to
sector’s role as supplier and customer
the reigniting of industrial capacity
into the mining, automotive, motor,
in the sector. I can assure you, if we
construction and other manufacturing
see half of what government has
sub-industries.
promised, the sector will ignite, move
“ During the three-week stoppage of the sector last year, more than R300-million a week in lost wages and more than R600-million a week in lost revenue was shed by the sector – and those
”
foster mutually-beneficial relationships between employers, labour and government in creating a business environment conducive to growth. When Trentini joined South Africa’s metals and engineering sector from JCI Gold and Uranium Company 30-odd years ago, it employed more than half a-million blue-collar workers. Sadly, it is
forward and create the much-needed
“Because of the nature of our economy
economic growth and consequent
and its size, the major sectors of our
jobs and job opportunities that this
economy are all interrelated, so when
country so sorely needs. We’re ready,
one cog in the wheel experiences a
“The knock-on effect into mining, construction,
we want to do our bit,” said Trentini
stutter, the effects are felt throughout
automotive
manufacturers,
the jobs we have and allow the government to
in a Zoom interview with Engineering
the value chain,” said Trentini.
automotive assemblers was felt very deeply,”
create an enabling environment,” said action-
said the head of the organisation that sets out to
orientated Trentini.
News & Mining Weekly.
are very conservative figures
component
now down to half that number. “Jobs are scarce and we need to hold on to
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6
“We have to sit down, we have to talk, we have to be honest, He sees the Steel Master Plan, already signed by representatives of
and we have to confront the so-called brutal truths if we are
business, labour and government, as being an integral part of the
going to make progress. If we don’t do that, the Steel Master
new enabling environment that the government is heralding, and
Plan will be another vision that doesn’t see the light of day –
urges all relevant organisations to put their shoulder to the plan’s
and I don’t think we have much time.
wheel at its upcoming conference on May 19 and 20. “There’s a lot happening in our country and the sooner we “It’s not going to create any miracles overnight but it’s the first time
start sitting down and rolling up our sleeves and getting
that government, through Trade, Industry and Competition Minister
our teeth into the various issues that the Steel Master Plan
Ebrahim Patel, has come to business to ask what it can do together
wants to focus on, the better,” Trentini added.
with labour, to address the challenges that we face as a sector,” he said. Seifsa will be using the period ahead of the next round of Localisation and designation without having to compromise on cost and quality is the plan’s focus.
wage negotiations in 2024 to get stuck into what it highlights as ten critical objectives. In addition to the Steel Master Plan, these include skills development and human capital, transformation, revival
“We now know that there are going to be massive increases in the price of steel because of what is happening in the Russian-Ukrainian conflict and the
and inclusiveness, electricity and energy, import-export and international trade, and talking to the economic cluster about what they see unfolding in the next year to three years.
price of steel, which is a major input into all of this
“I was bitterly disappointed that, at the signing of the Steel
industry, is a major issue up for discussion,” said
Master Plan, Seifsa was the only employer organisation
Trentini.
present. Yes, Seifsa is the largest and the most influential, but it’s not the sector’s only employer organisation, and I think it’s critically important that all employer organisations
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7
play a role because all employer organisations
government administrator, who also played
represent their respective constituencies
a prominent role in South Africa’s successful
and those remaining outside are doing their
bid to co-host the Square Kilometre Array project.
constituencies a disservice. It has been signed against the backdrop of We
don’t
have
another
metals
and
serious Covid-linked steel supply backlogs.
engineering industry. This is the only one we have. It’s best that everyone comes in to
During the ceremony, Barnes Group director
attend and best if everyone brings their sharp
Doron Barnes, whose company acquired
minds and their intellect and their creative
steel pipe manufacturer Hall Longmore from
ideas to try to move this industry forward as
Murray & Roberts in 2014, was quoted as saying
quickly as possible, because, I stress, we don’t
that he had already witnessed first-hand the
have a lot of time,” said Trentini.
power of collaboration, with government’s intervention having played a key role in
As Engineering News has reported, the
averting the closure of Hall Longmore and
launch of the Steel Master Plan took place
having its equipment relocated to Nigeria.
amid the constant hum of heavy machinery
“It is always easier to complain, blame and
at Hall Longmore’s factory in Wadeville, Gauteng.
criticise rather than to put in a meaningful effort to create sustainable solutions,” Barnes
The 80-page document has been published
said in his address on the factory floor, adding
following nearly two years of “robust” talks,
that the master plan created the platform
facilitated by Dr Bernie Fanaroff, the former
to “map a way forward” with the support of
trade unionist and leading post-Apartheid
government.
It was stated that the plan had been developed on three pillars, namely:
1 2 3
boosting demand for steel and steel products, primarily by reviving South Africa’s stalled public infrastructure roll-out; driving localisation, or import substitution; and by leveraging the market access being created through the implementation of the African Continental Free Trade Agreement;
addressing
supply-side
constraints,
including
electricity
disruptions and tariff hikes, logistics bottlenecks, uncompetitive inputs and inadequate skills, and research and development; and
a series of cross-cutting interventions, including the creation of a Steel Industry Development Fund, to be capitalised through the introduction of a levy of between R5/t and R10/t on all steel sold domestically, whether it be produced locally or imported.
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“
The big gains will be made by moving our infrastructure programme from shallow waters to deep waters and to get it moving on a bigger scale and then introducing a localisation requirement not only on primary steel, but also downstream steel
“It’s going to be about increasing domestic demand for steel,”
metal products and that an accord had been reached at the
Patel explained at the signing.
National Economic Development and Labour Council to drive progressive localisation of up to R200-billion of additional
“The big gains will be made by moving our infrastructure
production over a five-year period.
programme from shallow waters to deep waters and to get it moving on a bigger scale and then introducing a
National Union of Metalworkers of South Africa general
localisation requirement not only on primary steel, but
secretary Irvin Jim, who put his signature to the master
also downstream steel.”
plan, argued that the steel industry needed to begin casting its mind beyond being in “survival mode” and use the
Patel reiterated his contention that there was scope for
platform to reverse deindustrialisation and put a stop to the
higher levels of localisation, including localisation of steel and
jobs “bloodbath”.
9
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MAINSTREAMING THE STEEL AND METALS FABRICATIONS MASTER PLAN Join Minister of Trade Industry and Competition, Ebrahim Patel, Senior DTIC Officials, Representatives from the Steel Oversight Committee and Workstream Leaders who will unpack progress on implementation of the plans and commitments over the year ahead that will lay the foundations for the development and growth of the Metals and Engineering (M&E) Sector.
Conference information Date: 19 - 20th May 2022 Venue: Industrial Development Corporation, Sandton
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10
BIG WIN FOR GOVERNMENT
in wage bill battle
The Constitutional Court has dismissed an appeal brought by public sector unions after the government reneged on aspects of its collective wage agreement reached in 2018.
While the state implemented wage increases for
Arguments
2018/2019 and 2019/2020, it said that it could not increase
The matter was subsequently taken on appeal by the
the third clause relating to wages in 2020/2021 due to a
various public sector unions to the Constitutional Court.
lack of funding. It is estimated that implementing the final year of the three-year agreement would have cost
The Department of Public Service and Administration
the fiscus R38 billion.
(DPSA) and the Minister of Finance argued that organs of state are obliged to act within the confines of the
The Labour Appeal Court had previously found that the
law and that the collective agreement did not comply
cost of the collective agreement could not be covered
with the mandatory statutory provisions prescribed by
solely from the minister of Public Service Administra-
regulations 78 and 79 since the DPSA could not cover
tion’s budget; that Treasury did not provide a written
the cost of the wage increases from its own budget.
commitment to guarantee additional funding and no further agreements were made by other departments
The various unions argued that the Labour Appeal
or agencies in accordance with the regulations.
Court failed to consider the doctrine of estoppel, which prevents the state from seeking to escape its contrac-
There were also concerns that the minister did not follow
tual obligations.
regulations 78 and 79 of the Public Service Regulations which require the department to be able to meet the
They further argued that the sanctity of contracts must
fiscal requirements and Treasury approval.
be upheld and allowing the respondents to escape their obligations would undermine the purpose of and
It also found the clause to be unlawful for violating
the enforceability of collective agreements. And that if
sections 213 and 215 of the Constitution which
the Labour Appeal Court had applied the pacta sunt
requires fiscal transparency and effective financial
servanda (agreements must be honoured) principle, it
management.
would have come to a different conclusion.
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11
In addition, no written commitment was made by Treasury,
unions invalid and unlawful, and thus unenforceable.
stands at 5.7% — plus 2 percentage points, and that it wants
and no written agreements were forthcoming from other departments.
equivalent to the consumer inflation rate — which currently
The court, therefore, dismissed the applications for leave to
a single-year wage deal.
appeal with no order as to costs. Ruling
That compares with a budget estimate for the state’s
In its unanimous ruling, the Constitutional Court found that
The ruling has significant ramifications for South Africa
annual salary bill to rise by an average of 1.8% annually
the regulations 78(2) and 79(c) created jurisdictional facts
with the wage bill and potential payout seen as a major risk
over the next three fiscal years. The ruling comes ahead of
which must exist prior to the minister’s exercise of power
to the country’s fiscus.
another round of wage negotiations.
to negotiate and conclude collective agreements on behalf of the state, absent which the minister acts without legal authority.
Higher‐than‐budgeted compensation increases, and/or a decision by the Constitutional Court to uphold the appeal related to non-implementation of the final leg of the
The Constitutional Court found that
these
jurisdictional
2018 wage agreement, was named as a major risk to the economy by Treasury in its 2022 national budget.
facts were not present and
that
Annual salary bill
to rise by an average of 1.8% annually
1.8%
annually
non-com-
While honouring the deal would have cost the government
pliance with the re-
R37 billion ($2.4 billion) in the 2021 fiscal year, it would have
quirements of reg-
now been on the hook for R75 billion in back-pay for civil
ulations 78 and 79
servants, Absa economists, including Peter Worthington
Remuneration costs account for about a third of total
rendered the re-
and Miyelani Maluleke, said in research note on Monday
government expenditure, and agreeing to demands for
that cited National Treasury officials.
continued inflation-beating increases would compromise
sultant collective agreement
be-
tween the state and
the
trade
the medium-term fiscal framework presented by Finance The Public Servant’s Association, which represents more than 240,000 state workers, said it intends to seek increases
Minister Enoch Godongwana on February. 23.
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12
National minimum wage and Earnings Threshold Increased
New Earnings Threshold On 8 February 2022, the Minister of Employment and Labour announced that the “earning threshold” had been increased.
R 18 673.37 Per Month
R 17 633.00 Per Month
On 7 and 8 February 2022, two significant developments took place in the employment law arena. These were.
R
Previously, the earnings threshold
As from 1 March 2022, the new
was R 211 596.30 per year
earnings threshold will be R 224
(approximately R 17 633.00 per
080.48 per year (approximately R
month).appr
18 673.37 per month).
“Earnings” includes the employee’s regular annual remuneration before deductions, but excludes benefits such as subsistence and transport allowances, achievement awards and payments for overtime worked. Employees who earn more than the earnings threshold per annum are excluded from the protection of sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the Basic Conditions of Employment Act, 1997.
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The increase in the threshold will mean that from 1 March 2022, some employees who earn more than R 211 596.30 but
Increases in the National Minimum Wage
less than R 224 080.48 per year may be
The Minister of Employment and Labour also published
entitled to additional protections, such as
increases in the national minimum wage and various
overtime payment when working more than 45 hours per week, compulsory breaks and rest periods, night work allowances and the like.
sectoral determinations. These increases are also effective from 1 March 2022.
It is important to note that farm workers and domestic workers will also be entitled to the same national minimum wage. However, workers employed on an expanded public workers programme are entitled to R 12.75 per hour. Sectoral determinations have also been made for the contract cleaning sector and the wholesale and retail sector. Employers in these sectors will be required to increase their minimum wages, too.
The national minimum wage will change from R 21.69 for each ordinary hour that an employee works to R 23.19 for each ordinary hour that an employee works. This is an increase of R 1.50 per hour.
National minimum wage will change
In addition, workers who have concluded learnership agreements are entitled to certain allowances as outlined in a Schedule in the Government Gazette. Lauren Salt Employment | Executive l salt@ENSafrica.com Jessie Gertzen Employment | Candidate Legal Practitioner jgertzen@ENSafrica.com
From
R21.69 for each ordinary hour that an employee works to R23.19 for each ordinary hour that an employee works
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14
We Need to Let Go
of the Bell Curve
That skewed situation worried him greatly, and he wondered what we could do to spread our lending book more evenly. I’ve had similar conversations with
mean,
the fundraising manager of a non-profit I chair: The
median,
bulk of the funding comes from some 20 donors, which
and mode
she tells me is unsustainable. The way she sees it, the
would all coincide
organization is heading toward a cliff. Both of these reactions reveal a common cognitive error that has profound implications for leadership.
The mean, median, and mode would all coincide; half the people would fall below the average, and the other
By Adrian Gore, CEO - Discovery
Like the banking manager and the fundraiser,
I recently had a conversation with one of our senior managers about our company’s new banking division; he told me that only 21% of our cardholders account for 80% of spending.
most of us view the world as largely
half above. In this world, variables are independent and do not influence each other.
Gaussian, which means we believe most things are distributed, or should be
Why do we think that way? First, our brains are hard-
distributed, according to bell curves.
wired to find fairness rewarding and uplifting and are
In this world, most cardholders
averse to inequality. A Gaussian world, with most peo-
and donors, for example, would
ple clustered around a stable average, feels fair and
spend or contribute close
predictable. We also find symmetry particularly pleas-
to the average, and the
ing, whether in faces, art, or statistics. Moreover, most
remaining people would
of our schooling is still based on normal distributions
fan out symmetrically
and Newtonian thinking, which breaks down reality
on each side of
into independent variables and cause and effect. This
that
average
view of the world has permeated multiple disciplines,
amount of
from medicine to statistics and management. Finally,
money.
there are indeed phenomena that follow Gaussian distributions. Take test scores, for example. The variables
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15
A Pareto Distribution vs. a Gaussian Curve measured (the test scores) are the outcome of
follow a Pareto distribution instead of a
additive processes (the sum of the scores on
“normal” Gaussian curve.
each question).
A normal distribution (i.e., a Gaussian curve) is a bell-shaped, whereas a Pareto distribution (i.e., power law) is shaped like a
In Pareto distributions (named after economist Even though I learned about a multitude of
Vilfredo Pareto, who in the early 20th century
other statistical distributions when I studied
observed that 20% of people in Italy owned
statistics and probability theory, I too held the
80% of the land), a small change in one variable
intuitive view that most things follow a bell-
is associated with a large change in another,
shaped distribution.
because it reflects variables multiplied with
hockey stick with long tails.
each other rather than added to each other, as Yet they don’t. Let me tell you why, and why it
in the normal distribution. This is also referred
matters greatly.
to as a “power law.” Instead of a symmetric bell curve, the distribution of observations or
About 10 years ago, after reading about
outcomes looks like a hockey stick with a long
cognitive biases, I was surprised to find out
tail, as shown in the figure below. There are
that most human activities, as well as many
many observations of low values, and a small
disciplines — from physics and biology to
number of high values, or outliers.
linguistics, finance, and computer science —
Once you start looking, you’ll see that pattern almost everywhere, almost all the time. The frequency of words we use when we speak, the magnitude of earthquakes and hurricanes, the size of companies and cities, book sales, and the pattern of countries winning Olympic medals all follow power laws.
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16
Insurance Social media is no exception — for example, a U.S. study
In our short-term insurance business,
showed that just 25% of the most active Twitter users
Discovery Insure, the worst 30% of drivers
accounted for 97% of tweets.
account for 60% of serious accidents. Covid-19 also spreads in a Pareto fashion:
30% of drivers account for 60% of
ACCORDING TO DISCOVERY
serious accidents.
Social media U.S. study showed that just 25% of the most active Twitter users accounted for 97% of tweets
In two Indian states, 60% of new infections
New Infections
were found to be caused by less than 10% of
60% of new infections
people carrying the disease — a few “superspreaders” — whereas another 71% did
were found to be caused by less than
10%
not infect anyone at all. (This transmission
people carrying the
pattern
disease
has
been
observed
in
other
IN TWO INDIAN STATES
of
countries as well.)
Why is the Pareto distribution the actual norm, instead of the normal Gaussian distribution? Perhaps even more importantly, why is it becoming even more so? Most things follow power laws because this is how interconnected complex systems behave. And power laws are becoming ever more ubiquitous because our world operates in increasingly interconnected complex systems. The more interconnected the complex systems, the more pronounced the power law.
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17
Economies, supply chains, trade, and markets have become more intertwined and global. Information technology and transport have exponentially deepened the interconnection of the multiple systems we’re part of. In these networks,
Generate
variables are not additive but instead influence each other, creating dynamic, reinforcing, and cascading processes that are nonlinear, multiplicative, and far less predictable. In fact, these systems are capable of black swan behavior, because in most Pareto distributions (unlike in Gaussian ones), the
20%
of sickest people
79% of health care costs
variance — which measures how dispersed the data points are around the mean in a distribution — is not well defined. and the same skewed distribution can be found within that Besides being pervasive, these power laws are also remarkably
20% group (with the sickest 20% within that group responsible
stubborn. Regardless of what we do, a small number of data
for nearly 60% of health care costs). If you keep drilling down
points — people, decisions, or other observations — still
into the numbers, you’ll keep finding that a relatively small
account for most of the results. Political systems designed
number of people account for most of the costs.
to produce greater income equality, for instance, struggle to shift Pareto out of the way. Take China, which, despite its
This disconnect between our Gaussian perception and the
greater focus on income equality than most other countries,
Pareto reality is not an obscure intellectual point, but instead
has a higher Gini coefficient than Germany and the United
carries serious practical consequences. Because of this error,
Kingdom.
our approach to most problems is, at best, suboptimal.
Such distributions also repeat themselves like
Russian dolls, as we see in our health insurance business:
Malcolm Gladwell, for example, has written about how the typical solutions meant to address homelessness — shelters
The sickest 20% of people generate 79% of health care costs,
and soup kitchens — have been ineffective because they’re
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18
based on the mistaken assumption that the majority of
in fact they have the most impact — good and bad. A small
on the other hand, a change in the tail shifts the entire
homeless people follow the average: average number of
viral event, for example, snowballs into a global coronavirus
system — for better or worse.
days without a roof, average cost per person to the public
pandemic and economic disaster.
purse, or average reasons for being homeless. Yet on all these dimensions, homelessness follows a power law, too.
The realization that we live in a largely Pareto world
In the words of Nobel laureate physicist Philip Anderson,
— inherently unfair, asymmetric, and unpredictable —
we need to free ourselves from
average thinking, or
may feel unpleasant at first. The upside, however, is that
focusing on the mean, which, in most cases, is misleading.
systemic change in such a world is much easier and faster.
The joke that when Bill Gates walks into a bar, everyone in
In a Gaussian world, all elements within a system must shift
that bar becomes a millionaire on average, illustrates the
for the entire construction to change, which is laborious,
point. Outliers and tails are dismissed as aberrations, when
time consuming, and often impossible. In a Pareto world,
What does this business leaders?
all
Here are three practical implications for: -
Innovation
-
Risk management, and
-
People management.
mean
for
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19
Innovation
In a Pareto system, one individual or one decision can
business. A few years after we launched our insurance
make an enormous difference. The vision and leadership
business, an initial conversation with a chain of gyms about
of one entrepreneur like Steve Jobs, for example, can end
cross-selling sparked an entirely different idea: What if we
Focus on bold decisions in the tail, rather than
up shaping an entire industry. To stretch this illustration
created a program that rewarded people for doing healthy
incremental change.
further, imagine what impact Apple would have had if
things? What if members who were part of this program
Jobs had started the company in Johannesburg instead
could go to the gym for free? I still remember vividly the
In a Pareto world, seemingly intractable problems become
of Silicon Valley; the company’s gross income today is
10 minutes it took for that idea to take shape. The decision
solvable through a positive change in the tail. This is how
equivalent to roughly half of South Africa’s GDP.
to implement it profoundly transformed our business. It laid the foundation for a new insurance model based
some cities like Denver have been able to make inroads on homelessness. They designed specific interventions focused
Similarly, the kind of radical innovation that can transform
on behavioral economics and shared value — a business
on the chronically homeless, who account for most of the
entire companies and industries happens in the tail. This
model in which it makes good sense for Discovery, its
social services and health care costs and are the hardest
is why the creation of the Vitality program was a game
customers, its suppliers, and its local community to give
cases to solve, but who make up a tiny fraction of the entire
changer for Discovery: One outlier decision had, and
Vitality members the knowledge, tools, and incentives to
homeless population.
continues to have, an enormous impact on our entire
live healthier lives.
“
Focus on bold decisions in the tail, rather than incremental change
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20
A lot of smaller-tail decisions have contributed to turning the initial idea into what it is today. But Discovery’s success can be traced back to that initial tail decision, which
Risk Management Embrace rather than fight the power law and identify tail problems early.
remains the core of our identity and growth and has had an enormous impact through creating multiplicative
The shift of perspective toward a Pareto world also has implications for how we
shared-value benefits for members and for sharehold-
deal with risk and uncertainty. We spend enormous time and energy trying to
ers. It was the root of a system that connected behavior
“correct” nonlinear phenomena — like asymmetric fundraising and bankcard
change with risk and reward.
lending — that we perceive as abnormal and risky. There may be moral and fairness considerations to account for, but since power law distributions are the rule rather
I’m not saying that incremental improvements aren’t
than the exception, and since they’re remarkably stubborn, they call for different
important — they are. I’m saying that radical innovation
solutions to deal with risk and a focus on the dynamics in the tail.
that can result in systemic and profound change starts with bold decisions in the tail, therefore that’s where
Just as innovation in the tail can shift entire systems for the better, a negative tail
leaders should focus their time and attention.
decision can bring down an entire system — a scenario that keeps me awake at
“
I’m not saying that incremental improvements aren’t important — they are. I’m saying that radical innovation that can result in systemic and profound change starts with bold decisions in the tail, therefore that’s where leaders should focus their time and attention
night. So how do we deal with a Pareto world’s uncertainty and chaos? How do we make decisions? How do we avoid bad tail decisions, or correct them quickly before they become catastrophic? One promising avenue is to combine extreme outcomes and the plausibility of various future scenarios — economist George Shackle’s Potential Surprise Theory — to help grapple with decisions in extreme uncertainty. Using traditional probabilities is problematic because they rely on predefined and mutually exclusive outcomes that are supposed to cover all possible scenarios — which, of course, no one can predict. A decision maker using Potential Surprise Theory, on the other hand, chooses among various possible scenarios
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21
based on a combination of the degree of disbelief or implausibility of possible outcomes and the
Managing People
might sound arcane, but the practical implications are profound. Shifting the lens through which we understand
expected potential gains and losses associated with each. This approach, unlike traditional
Recalibrating our perspective from Gaussian to Pareto
Create an A+ team to leverage A+ players’ impact.
the world impacts how we approach systemic change, how we make decisions and handle risk, and how we
probabilities, leaves room for surprises and new possibilities. So, think about plausibility and
People’s performance is still often measured using a
lead. And because our lives are made up of intricate and
consequences, rather than probability. Think in
Gaussian curve. In reality, a small number of outperform-
complex webs of human connections, from families and
a much broader way about the bad things that
ers consistently account for most of the impact. The im-
professional networks to the communities we live in, our
could potentially happen.
plication is two-fold.
entire lives follow power laws: A few key decisions — from
We indeed cannot predict or prevent black
First, recruit and retain the best possible people across
having an enormous impact on our future. I believe our
swan (i.e., bad tail) events. But learning to recog-
the board. The stars in the tail will still account for the
thinking follows the same power law. By
nize and contain them early can avoid a disas-
largest impact on results — remember that power laws
correcting a handful of cognitive errors,
ter. When Covid-19 first broke out in South Ko-
are stubborn — but this doesn’t mean that all recruitment
starting with this one, we can radically
rea, for instance, authorities’ early and decisive
and retention efforts should focus on them. Consistently
transform our performance, our im-
test-trace-isolate reaction contained the spread
attracting and retaining exceptional talent across the en-
pact, and our entire life.
of the disease, compared to countries like the
tire organization will lift the entire talent curve, with pro-
United States or Brazil. Similarly, we can learn to
found impacts on results. So, although a small percent-
recognize and reverse dangerous tail decisions.
age of people still account for a relatively large proportion
Imagine what could have been avoided if Leh-
of results, having better talent across the board can lift
man Brothers, for example, had identified as a
results in absolute terms.
tail decision expanding its subprime mortgages
Second, focus on improving team environments and dy-
and mortgage-backed derivatives business to
namics at all levels. When the complex system that is a
the extent that a small decline in real estate val-
company gets more and better interconnected, the
ue could wipe out its capital.
multiplicative impact of the star performers in the tail
whom we marry, to what careers we choose — end up
becomes amplified throughout the entire system.
SEIFSA Contents RATEPage CARD
22
Main Agreement Handbook
EFFECTIVE 1 JULY 2022 - 30 JUNE 2023
(for A4 print and A4 Interactive pdf - digital format) About Main Agreement handbook The 2022 - 2023 edition of the Main Agreement Handbook for the Metal Industry is an easy-to-read summary of the industry's Main Agreement. It includes: - The wage increase effective from the 1st July 2022. - All Technical Schedules. - Management notes that explain the more complicated sections of the Main Agreement. - Various pro-forma letters to assist management in applying specific provisions of the Main Agreement, e.g.: retrenchments, short time and lay off. The Main Agreement Handbook will be available in July 2022 Over 5 000 subscribers
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Contents Page
23
World of work: The trends and transformations of the dramatically changed landscape of the 2022 workplace
From the rise of the freelancer, and
from home, but others have embraced the flexibility –
mental health and wellness programmes,
and global job positions are now more readily available
to listening to Generation Z’s concerns, the corporate working environment is a transformed landscape of issues and trends.
as companies have accepted that remote working is an option that works and reduces costs significantly. Regarding flexible hours, many companies are revising their former standpoints and offering employees op-
Flexible working hours, more freelance gigs, social
tions ranging from hot desks to home desks. Practical-
standpoints and improved corporate well-
ly, this has played out in the shape of office rentals de-
ness programmes that are practical and
clining and employees report being more productive
accessible. These are just a few of the
when they have the freedom to work from home and
trends the workplace has seen and con-
shape their own hours.
tinues to see going into 2022. A quarterly report by property analytics firm Rode & Having an idea of what has changed in
Associates, titled State of the Property Market, shows
the corporate world can help employ-
that cities such as Johannesburg and Cape Town had
ees to redefine their own job searches
office vacancy rates averaging at 19.8% and 16.7%, re-
as well as become more circumspect
spectively, in the last three months of 2021. Large com-
about accepting job offers.
panies that now allow employees flexible working hours include the likes of Old Mutual.
Though some things will always stay
Julien Raze, a director at recruitment firm Michael
the same – like gossip at the office water
Page Africa, says, apart from salary, culture and career
cooler – the past two years have brought
growth as consideration points for candidates looking
significant shifts under the shadow of
to switch into new positions, top candidates are also
Covid-19 and global lockdowns. Some
likely to consider what flexible working arrangements
people resent the loneliness of working
companies can offer.
Contents Page
24
Old Mutual research last year revealed a 9% rise in
“Now, more than ever, candi-
sourcing scarce talent to be
dates need to be convinced they
based
are making the right decision
world. This is particularly true
Mental health has also moved to the forefront
tinuing a three-year upward trajectory, and more
for themselves and their family,”
within the technology sector,
in the South African employment industry, with
than three-quarters of these claims are a result
says Raze.
where there is a real skills short-
companies sitting up and taking note that stress
of major depression. What are companies doing
Paul Newman, the company’s
age in South Africa,” he says.
levels do affect performance, job satisfaction and
about it?
anywhere
across
Mental health and corporate wellness
mental health claims under disability cover, con-
the
operating director for South Af-
employee turnover, to name a few things. They are standing up and making improvements
rica, says a recent survey of 318
Although some companies have
job applicants in the country re-
veered towards flexible work-
The South African Depression and Anxiety Group
to their corporate wellness programmes. Im-
vealed that 88% believed they
ing arrangements for perma-
(Sadag) reports that presenteeism – where de-
provements could be as simple as making access
could fulfil their tasks or respon-
nent employees, others forced
pressed workers are at work but not performing
to these programmes more discreet, giving em-
sibilities remotely, highlighting
to downsize have turned to the
due to mental stress – costs the country roughly
ployees the benefit of confidentiality and practi-
the need for technology capabil-
gig economy, hiring freelancers.
R200-billion a year.
cal toolkits to manage their stress.
ities to be accelerated.
Phillipa Geard, CEO of RecruitMyMom, says contracting skills
It’s no longer enough to just have a corporate
“What started as an enforced
for a fixed period or defined pro-
wellness programme available. Employees have
work-from home policy for some
ject allows companies the flex-
to be comfortable enough to use the programme
companies has now evolved into
ibility to manage the impact of
so that they can address their issues and improve
a long-term strategy for most
market uncertainties. However,
productivity levels.
companies, thereby accelerating
in such an environment, it can
digital transformation and tech-
become tricky as candidates are
The
nology adoption across nearly all
often asked what their rates are
occupational
industries.
and are expected to price their
results from a chronic level of workplace-related
work.
stress. Noticeable effects are increased feelings
World
Health burnout
Organization as
a
defines
syndrome
that
“We have noticed a sharp in-
of energy depletion or exhaustion; increased
crease in global organisations
mental distance from the job or having negative
Contents Page
25
or
cynicism-related
related
to
it;
and
feelings
The rise of CSG – corporate
reduced
social governance – requires
efficiency.
that corporates develop a voice on social issues and then put
A survey by the Top Employers
their money where their mouth
Institute this year showed that
is.
95% of respondents saw wellbeing as a key business imper-
This doesn’t just mean dona-
ative and took steps to make
tions, but must be seen in the
this awareness felt within their
actions and strategy of the
organisations.
business, so it can demonstrate its sustainability on issues such
About 92% of top employers have
ongoing
as climate change and diversity.
communica-
tion about their wellbeing pro-
According to a recent Sage
grammes, 84% of them have
Payroll
senior management involved in
report,
these established programmes
medium
and 88% have initiatives to raise
are specifically catering to the
awareness
needs of Generation Z, and
about
emotional
wellbeing.
and 73%
HR of
research
small
enterprises
and
31% of SMEs are placing a more of the LGBTQ+ community.
Companies are no longer able to hide behind corporate screens and keep silent on social issues.
Daily Maverick
21 Jun ‘22 20 Sep ‘22
(SMEs)
strategic focus on the concerns Louder social voices
2022
intake dates:
The Premiere Training Centre for all Your Skills Development & Related Business Solutions
Managed by:
Contents Page
26
South Africa: Harassment in the workplace
The Minister of Employment and Labour has published the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) in terms of the Employment Equity Act (EEA). The Code be-
Employers to take note of their obligations under the new Code of Good Practice
came effective on 18 March 2022 and repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace. The publication of the Code follows the ratification by South Africa of the International Labour Organisation’s Convention on the Elimination of Violence and Harassment in the World of Work in November 2021. The Convention obliges ratifying states to adopt an inclusive, integrated and gender-responsive approach to violence and harassment in the workplace. The Code accordingly seeks to address the elimination and prevention of all forms of harassment (and not just sexual harassment) that pervade the workplace and is guided by the Convention.
Key take-aways for employers The Code provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace. In this regard, the eight key take-aways from the Code are as follows: 1. The Code applies to all employers and employees irrespective of whether they operate in the formal or informal sector. In determining whether a person is an employee for purposes of the Code, the presumption in section 200A of the Labour Relations Act is applicable. Volunteers and applicants for employment also fall within the definition of an employee. 2. Perpetrators and victims of harassment extend
beyond
employers managers,
and job
just may
employees include
and
owners,
applicants,
interns,
apprentices, volunteers, clients, customers, suppliers,
contractors
and
any
other
persons having dealings with a business.
Contents Page
27
3. The Code makes it clear that the protection of employees
•
is related to one or more grounds in respect of which
to employees, implementing an appropriate policy
against harassment applies in any situation in which
discrimination is prohibited in terms of section 6(1)
addressing harassment, conducting training to educate
the employee is working, or which is related to their
of the EEA.
employees about the various forms of harassment and
work. In other words, harassment does not only occur
implementing ongoing awareness programmes.
when employees are on-duty at the physical workplace
6. The Code recognises that harassment includes violence,
but extends to work-related trips, training or social
physical abuse, psychological abuse, emotional abuse,
The Code introduces new requirements which employers
activities, work-related communications, employer-
sexual abuse, gender-based abuse and racial abuse. It
will be required to adhere to, failing which they may be
provided accommodation, when commuting to and
includes the use of physical force or power, whether
found liable in terms of section 60 of the EEA. Please watch
from work in transport provided by the employer or
threatened or actual, against another person or against
out for our further newsflashes in which we will unpack
the location of employees who are required to work
a group or community. Further, the intersection of
the provisions of the Code in more detail.
virtually, amongst others.
factors such as race, religion, gender or disability increases the risk of harassment in the workplace.
4. The Code deals with the concept of harassment
This newsflash was written by Nadine Mather and is the first in a series of newsflashes on this topic. Please
broadly and highlights sexual harassment and racial,
7. The Code makes reference to other statutes that are
ethnic or social origin harassment as specific forms of
relevant and which employers are required to comply
harassment.
with in order to prevent violence and harassment in
contact your Bowmans lawyer should you require further information.
the workplace, including the Promotion of Equality and
Bowmans is a leading African law firm with offices in Kenya,
5. Whilst the term ‘harassment’ is not defined in the EEA,
Prevention of Unfair Discrimination Act, the Labour
Mauritius, South Africa, Tanzania, Uganda and Zambia, Alliance
the Code provides that the term is generally understood
Relations Act, the Occupational Health and Safety Act,
firms in Ethiopia and Nigeria, special relationships with leading
to be unwanted (or unwelcome) conduct which:
and the Protected Disclosures Act.
firms in Malawi and Mozambique, and a non-exclusive co-opera-
•
Impairs dignity;
•
creates a hostile or intimidating work environment
8. Employers are under an obligation to take proactive
for one or more employees, or is calculated to, or
and remedial steps to prevent all forms of harassment
has the effect of inducing submission by actual or
in the workplace. In terms of the Code, this includes
threatened adverse consequences; and
conducting an assessment of the risk of harassment
tion agreement with French international law firm Gide Loyrette Nouel
Contents Page
28
WELDERS ARE A DIME - A DOZEN BUT QUALITY WELDERS ARE NOT Apprenticeships are a key way to solve South Africa’s skills and employment crisis
Welders it seems are a dime a dozen but highly
understand the need for suitably qualified and
skilled welders are not. This is the stark reality
experienced trainers within their institutions,
facing
sector
who follow clearly outlined training guidelines
according to SAIW Executive Director John
in properly equipped facilities. In addition,
Tarboton who is concerned about the number of
certification bodies do not always understand
fly by night training institutions that churn out
the need for properly trained assessors with a
graduates without the proper qualifications in
proper understanding of Codes and Standards
place. This wastes students’ hard-earned or even
underwritten by objective assessments
the
South
African
industrial
borrowed financing and sends out a generation of unqualified welders into the marketplace.
“As a result what we are increasingly seeing is
This results in situations like that found during
students who have already completed training at
the construction of the Medupi Power Station
other institutions coming to us to gain the proper
where 150 Taiwanese welders were employed for
certified, government recognised training after
specialised welding work due to a lack of local
battling to find or keep employment due to a lack
skills in this specialised field which is certainly not
of skills.
an acceptable situation. He adds that this is especially worrying given the This is made worse within the context of South
danger this poses to the quality of the installations
Africa’s
(Stats
or projects or products that they work on prior to
SA) equating to 7.6-million people without
achieving the appropriate level of skill. The training
work. However, even when welders seek out
of welders needs to be given the respect it is due.
employment; anecdotally what we have found,
Welding is an essential skill to manufacturing
is that out of ten interviewed, only one will
and fabrication in strategic sectors such as
be sufficiently qualified for the job. Tarboton
power generation, chemical processing and
comments;
construction, transportation, food and beverage
34.9%
unemployment
“Unfortunately
this
rate
stems
from
the issue that training providers do not always
and mining.
Contents Page
29
practical real world skills. “There is a reason
•
our QCTO programme takes three years, not three weeks, as in many other institutions
Minimise
liability
costs
through
appropriate training of workers •
SETA grants, SARS tax benefits and
where training is rushed and based on
BBBEE
scorecard
the easiest methods of welding to ensure
development
points
for
skills
sufficient pass rates. The apprenticeship scheme has also been “We are not focused on ticking off a list of
proven to reduce training and recruitment
training modules as quickly as possible,
costs. Once the training programme is
with little regard to whether the required
complete, business’s gain skilled employees
technique has been mastered and sufficiently
who are trained to industry standards and
practised. Our training culminates in a test
familiar with a company’s operations and
based on objective criteria according to ISO
culture. This provides a lower-risk, lower-cost
3834 standards where the actual quality of
style of recruitment and enhanced employee
a weld, including its height and thickness,
retention. To promote the use of this scheme
for example, is assessed - not just the act of
the SAIW is offering QCTO apprenticeship
having completed a weld.”
courses at its Johannesburg Headquarters
Light at the end of the training tunnel
As an Approved Training Body’s (ATB) under
Against this backdrop, and to solve South
the IIW and a QCTO accredited training
Business benefits
the Highveld Industrial Park in Emalahleni
Africa’s crisis of a lack of suitably qualified
institute. the SAIW is in a prime position
The apprenticeship scheme is also not just
and a second potential site in Middelburg,
welders, the SAIW is seeking to partner
to assist companies with the selection of
a ‘nice to have’. It has tangible commercial
Mpumalanga in collaboration with the
with companies who want to produce
candidates for its three-year apprenticeship
benefits for companies including:
Department of Economic Development and
artisan welders to the correct standard
training scheme, which offers both QCTO
•
Tourism.
and with the necessary skill levels. This can
and IIW Diplomas - the latter recognised in
take place via the government approved
60 countries.
with the potential for a satellite school in
workforce that helps grow their business •
QCTO - Registered National Occupational Qualification (Welder) 3-year Apprenticeship
The SAIW’s training methodology utilises
scheme.
both theoretical in-depth knowledge and
Recruit and develop a highly-skilled
•
Improve productivity, profitability, and
Issued by MediaInk Communications Media
their bottom line
Enquiries: Luise Allemann luise@mediaink.
Create flexible training options that
co.za +27 82 376-6716
ensure staff develop the right skills
30
Contents Page
What is the purpose of this press release? To ask and answer the question of how the government views TES both officially and unofficially. Focus will be on value of TES providers within this industry and therefore push awareness of TESD.
SA Government’s “Tight Rope” Viewpoint on TES
Although South Africa is a country more industrialised than any of its fellow African counterparts, it nevertheless currently possesses record-high unemployment rates. According to Trading Economics, South Africa’s 2021 third quarter 34.90% unemployment rate is the “highest jobless rate since comparable data began in 2008.”
Contents Page
31
It is a tough juggling act between offering
at Primeserv Group. He goes on further to say
has had to walk a tightrope on their perspective
employment
fair
that at least 40% of government employees come
of TES. “Government knows they cannot promise
employment and protecting the rights of employees
from the TES companies. It makes sense then that
permanent employment.” On one hand, they are
all in one through comprehensive legislation.
industry players were involved from 2000-2014
major employers that support the industry, making
The South African government responded by
in the negotiations with the National Economic
TES critical to the economy. On the other hand,
establishing policies to regulate all employment
Development and Labour Council (Nedlac) whose
Cowley highlighted that the government has to
such as the Labour Relations Amendment Act
task is to seek cooperation between government,
pacify strong trade unionism in the country, which
(LRAA) and the Employment Services Act (ESA).
labour, business and community organisations. This
historically had much
resulted in an updated LRA which came into effect
influence
In 2000, government mandated studies were
in April 2015. As a whole it needed to reflect the
the
conducted to examine the last 20 years of the
changing times and largely casual labour market,
market.
South African labour market. The data revealed
it also included specific regulation of fixed term
that there had been a great shift towards casualised
contracting.
opportunities,
promoting
labour. This distinct pattern in the labour market had been picked up and utilised by the Temporary
“That divided the wheat from the chaff. It bolstered
Employment Services (TES). But what is the
what the TESD had been driving for years,” says
government’s perspective of the industry? “The
Cowley. The Temporary Employment Services
truth is, as an employer, the government needs
Division (TESD) was established in 1994 as
the TES industry to function,” says Kevin Cowley,
the Labour Broking Division, which assures
who has almost two decades of experience in the
compliance and credibility of its members.
industry and is also Human Resources Director
Cowley added that for years the government
over
labour
Contents Page
32
Accredited Temporary Employment Service Providers as at 5 April 2022 • • • • • • • • • •
Adcorp Blu a division of Adcorp Staffing Solutions (Pty) Ltd Adcorp BLU a division of Adcorp Workforce Solutions (Pty) Ltd Alos Business Solutions (Pty ) Ltd AMT Africa Recruitment AMT Placement Services Babanango Operations (Pty) Ltd Bathusi Staffing Services (Pty) Ltd CAP Personnel Placements (Pty) Ltd CDR Contracts (Pty) Ltd Consortium Personnel Consultants Pty (Ltd)
• • • • • • • • • • • •
CSG Resourcing (PTY) Ltd CSS Labour (Pty ) Ltd Eduardo Construction (Pty) Ltd EFS Multi Construction (Pty) Ltd ESG Recruitment cc Fempower Personnel (Pty) Ltd Impact Human Resources Pty Ltd Ithemba Langemphela JLH Group (Pty) Ltd Lavoro Matkri (Pty) Ltd Lekang Projects & Security Services cc Mabhele and Associates (Pty) Ltd
• • • • • • • • • •
Madobra (Pty) Ltd MECS Growth (Pty) Ltd Molapo Quyn Outsourcing Momotheka OHS Training Nelso Africa (Pty) Ltd On Time Boiler And Engineering Support Services cc Pachedu Trading (Pty) Ltd T/A People Dynamics Human Solutions Phakisa Holdings (Pty) Ltd Phakisa MSP (Pty) Ltd Primeserv Denverdraft (Pty) Ltd
• • • • • • • • • • • •
Primeserv Staff Dynamix (Pty) Ltd PTS Metalwork (Pty) Ltd Qunu Staffing (Pty) Ltd Quyn International Outsourcing (Pty) Ltd Scribante Labour Consultants (Pty) Ltd Sindawonye Services Sivulamtfuba Construction and Projects Southey Personnel Services STAFFATACLICK (PTY) LTD Themba Njalo Camden Tributum Emawi (Pty) Ltd Vusithemba Mpumalanga
Contents Page
33
GETTING TO KNOW
Date and Place of Birth: February 2,
of
LUCIO TRENTINI
1964, Italy
Association not for gain
Steel and Engineering Industries
and
Federation of Southern Africa
University of the Witwatersrand
Management Style: Participative
(Wits);
diploma
and inclusive but action orientated
Business
Personal Best Achievement: Being
School; certificate programme in
fortunate to have married a loving,
negotiation skills, Gordon Institute
supportive and understanding wife
of Business Sciences
and being blessed with two wonder-
First Job: Industrial relations officer
ful boys, who continue to make both
at JCI Gold and Uranium Mining
their parents exceptionally proud
Company, in Westonaria
Person Who Has Had the Biggest
Size of First Pay Packet: R3 000 a
Influence on Your Life: My father,
month
a
Career Path to Date: I left the mining
who arrived in South Africa with a
sector after two years to join Seifsa as
suitcase full of clothes and very little
an industrial relations adviser. I was
else and, through hard work, raised a
subsequently promoted to deputy
family. This is a lesson that is central
manager:
industrial
relations,
to who I am
manager:
industrial
relation,
Person Who Has Had the Biggest
executive:
industrial
relations,
Influence on Your Career: David
Education:
in
Q&A Full Name: Lucio Trentini Position and Company Name: CEO of the Steel and Engineering Industries Federation of Southern Africa (Seifsa) Main
Activity
of
the
Company:
To
advocate, lobby for and represent the interests of Seifsa’s affiliated members in the metals and engineering industries and fostering mutually beneficial relationships between employers, labour, government and shapers of policy in creating a business environment conducive to growth
BA
(Economics
Industrial
Psychology),
postgraduate
management,
Wits
Employer
Organisations
i.e.,
Number of People under Your Leadership: 21
brave
and
former
courageous
Seifsa
man
operations director and CEO
Carson,
director:
Value of Assets under Your Control:
industrial relations and later Seifsa
SEIFSA is registered as a Federation
CEO
Contents Page
34
Person You Would Most Like to Meet: Nelson Mandela and Desmond Tutu (may their souls rest in peace)
Nelson Mandela
Desmond Tutu
Businessperson Who Has Impressed You
tion and books on human behaviour, including
Most: Bobby Godsell, for being among the
those written by Malcolm Gladwell
first captains of industry to recognise the
Favourite TV Programme: History Channel,
nexus between capital, labour and profits, and
Discovery and sports channels
Clem Sunter, for his brilliant scenario planning
Favourite Food/Drink: Being Italian and raised
strategies
by a stay-at-home mother, it has to be pasta,
Philosophy of Life: Focus on what you’re good
pizza and fresh salad
at, become the best at it and rewards and
Favourite
recognition will follow
Aerosmith, Def Leppard) and a little bit of Eros
Biggest Ever Opportunity: Travelling in the
Ramazzotti on the side (also referred to as
1990s with business and union leaders to
Italian restaurant music!)
Germany, Japan, France, Belgium and other
Favourite Sport: Soccer and rugby
countries to study and learn from the collective
Hobbies: Working in the garden, reading and
bargaining frameworks of those countries’
watching sport
respective metals and engineering industries.
Car: BMW 3 Series
Biggest Ever Disappointment: Losing my
Pets: Ginger cat, Archie
brother in a tragic car accident when he was
Miscellaneous Dislikes: Litter and people who
only 40 and watching his three young children
complain about what is wrong with everything
grow up without him
rather than focusing on what one can do to
Hope for the Future: That South Africa reaches
make things better
its full potential – we’ve come so far but wasted
Married: To Heather Trentini
so much goodwill and opportunities along the
Children: Andrea, 22; Alessio, 19
way
Clubs: Carlton Centre Gym and Italian Club
Favourite Reading: Autobiographies, nonfic-
Bedfordview
Music:
Light
rock
(Bon
Jovi,
SEIFSA Contents RATE Page CARD
35
EFFECTIVE May - December 2022
SEIFSA News • SEIFSA News is in its 37th year of circulation and has evolved from a print publication, to being an online magazine circulated on all of SEIFSA’s digital platforms. • This includes the SEIFSA website, Facebook, LinkedIn and Twitter. The publication is also available on SEIFSA’s digital showroom hosted by Engineering News. • SEIFSA’s social media presence is continually growing both organically within the Metals and Engineering Sector as well as in related industries across the globe.
(Interactive pdf - digital format)
Description
1 Edition
2 Editions
6 Editions
Full page anywhere
R 3 000.00
R 2 850.00
R 2 250.00
Front page
R 5 000.00
R 4 250.00
R 2 950.00
Back Page
R 5 000.00
R 4 250.00
R 2 950.00
• SEIFSA News has an established reputation as the most authoritative voice in the industry. The publication focuses on the latest information on labour related matters and employment law, key trends in the skills development arena as well as a detailed economic reports and analysis highlighting trends in the sector.
New size:
• In addition, the magazine has an updated list of accredited temporary employment service providers (TES) who are affiliated to SEIFSA, registered with the bargaining council and metal industries benefit funds and who are recognised as reputable TES providers
Material deadline and requirements Ad booking deadline - 1st of preceding month Ad material deadline - 17th of preceding month
• SEIFSA News is published bi-monthly every year and is circulated to both members and non-members in the Metals and Engineering Sector.
333.9mm (w) x 190.5mm (h) no bleed
Material should be send in high resolution PDF, Tiff or JPG via email if less than 5MB, or via WeTransfer if larger than 5MB. High resolution pdf with NO crop marks. If submitting advert in Powerpoint or Word, pictures and logos must be CMYK and must be made up to the correct size.
Advertising enquiries Tel: 011 298 9400 - sales@seifsa.co.za All rates exclude VAT The editor reserves the right to decline advertising
Contents Page
36
afadzwa (Taffie) Chibanguza Taffie returns to SEIFSA in a revised
Senior Economist before leaving for an opportunity
and expanded capacity as SEIFSA
to grow and expand his horizons with the Minerals
Chief Operations Officer (COO). He
Council.
will be working closely with SEIFSA’s Executive Team and SEIFSA Chief
I have little doubt that Taffie will bring energy,
Executive Officer, Lucio Trentini, as the
ingenuity and a fresh approach coupled with well-
SEIFSA Team headed by Lucio and Taffie
honed academic and practical expert experience to the
and ably assisted by the Executive Team
SEIFSA welcomes back Tafadzwa (Taffie) Chibanguza AS CHIEF OPERATING OFFICER
important work of SEIFSA.
comprising of: Louwresse Specht (Head of
Taffie holds a BCom Economics and Econometrics
IR and Legal), Mariaan de Jager (Head of
degree from the University of Johannesburg, a BCom
Finance) and Nuraan Alli (Head Marketing,
(Honours) Degree in Economic Policy from the
Sales and Communication) who together, will
University of Witwatersrand, and a Master of Commerce
be working to roll-out SEIFSA’s revised strategic
Degree in Economic Policy from the University of
vision focusing on lobbying, advocacy and
Witwatersrand and is due to complete a Master of
collective bargaining.
Science in Mining Engineering from the University of Witwatersrand in 2022.
Taffie brings a wealth of academic, expert and industry experience to SEIFSA. Taffie in his previous stint at the Federation progressed to being SEIFSA’s
I’m sure you will all join me in welcoming Taffie back to SEIFSA.
37
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38
He returns to SEIFSA and joins CEO Lucio Trentini to help lead the federation that represents and
New SEIFSA COO Tafadzwa Chibanguza wants SA’s operating environment to be more business friendly
supports 18 independent employer associations in the metals and engineering industries while lobbying the government for policies to improve South Africa’s business environment. Chibanguza has the necessary educational pedigree, and
with
a
econometrics
BCom from the
in
economics
University
of
Johannesburg, a BCom (honours) in economic policy from the University of Witwatersrand, and an MComm in economic policy from the
Tafadzwa (Taffie) Chibanguza will have his work cut out of him returning to the Steel and Engineering Industries Federation of Southern Africa (SEIFSA) as chief operating officer (COO) just as the global pandemic gives way to war in Ukraine.
University of Witwatersrand. He is scheduled to complete an MSc in mining engineering with Wits University in 2022.
Tafadzwa (Taffie) Chibanguza will have his work cut out of him returning to the Steel and Engineering Industries Federation of Southern Africa (SEIFSA) as chief operating
Chibanguza is excited to be back at SEIFSA after a stint at Minerals Council South Africa, where he was an economist. “The steel and engineering sector is important in any economy and will play an important role in the current South Africa
officer (COO) just as the global pan-
and whatever the future holds for the country,”
demic gives way to war in Ukraine.
he says.
Contents Page
39
At the moment that is a future
pandemic, we have already
There may be some silver linings
friendly and ensure that the cost of
is filled with uncertainty as
seen inflation accelerate again,
though,
production is less. The environment
the
Russia’s
and we are likely to see quite a
uncertainty around the supply of
must
invasion of Ukraine. “Any war is
spike in the inflation rate. Then
commodities, such as coal, which
business,” says Chibanguza.
terrible, but from an economic
the Reserve Bank will be under
South Africa produces. However,
perspective war always breeds
pressure to hike rates ahead of
the higher price may be good news
Despite the full plate, he finds time
uncertainty across the board,”
the cycle and that will increase
for producers but also adds to
to run 5km-6km each weekday.
he says.
borrowing costs and, with that,
the already abundant inflationary
“I use it as time to process the
a decrease in investment. The
pressures. Gold miners may also
previous day’s events and plan the
Some of the issues South Africa
war has come at the worst time
benefit as they reap the rewards of
day ahead. Also, it’s a good time to
may have to face, include the
as the economy is already under
a higher gold price due to the war-
process a thought or a plan. On the
disruption of supply chains due
pressure, and this will choke the
charged demand for the safe-haven
weekends I then also try to squeeze
to no-fly zones and other war-
recovery.”
asset.
in a half marathon every so often,
world
related
digests
obstructions,
which
will then result in shortages of
The rising fuel price, in particular,
various products. “The countries
has
involved in the war and their
effect”, he says, so its effect is
dominance in the commodities
felt widely - when we fill up our
complex will threaten supply,
cars with fuel and also when we
which
into
buy food that is more expensive
inflationary pressures, and that
due to the increased fuel price,
is how it will translate for us,
and again in numerous other
domestically. At this point. with
ways.
will
then
feed
the recovery from the Covid-19
a
“blanket
inflationary
“
Gold miners may also benefit as they reap the rewards of a higher gold price due to the war-charged demand for the safehaven asset.
in
the
form
of
the
be
more
conducive
to
when I can.” Keeping
an
eye
on
these
developments will need to be
Like so many executives, his down
balanced
day-to-day
time is rare and kept for those closest
demands of being SEIFSA’s chief
to his heart. “I also make it a point to
operating officer, such as calling
prioritise family time. I have a young
on the government to develop a
daughter, so I make it a point to be
coherent policy that creates stability
there during these formative years.
for the industry. “Government focus
Between my daughter and my wife,
should be on kicking in a set of policy
family time is pretty full of things to
objectives that make the operating
do,” he says.
with
environment
the
more
business
Contents Contents Page Page
40
Suspension for not vaccinating
Two recent CCMA arbitration awards have dealt with issues arising out of the implementation of mandatory vaccinations
Following hot on the heels of the Goldrush1 mat-
and it was not possible for him to work in an iso-
ter, the arbitrator in Gideon J Kok v Ndaka Secu-
lated office, given the nature of his job. Kok had
rity and Services (Case no: FSWK 2448-21) found
been given ample time to air his objections, and
that an employee who had been denied access
also given the option of submitting a weekly Cov-
to the workplace on account of refusing to get
id-19 negative test result as an alternative to vac-
vaccinated against Covid-19 had been suspend-
cination. Importantly, although it didn’t dispute
ed and that the suspension was fair. The appli-
the CCMA’s jurisdiction, the employer argued
cant (Kok) had referred an unfair labour practice
that Kok had not been suspended, merely in-
dispute to the CCMA, claiming that he had been
structed to stay at home or provide a weekly neg-
suspended from duty and that the suspension
ative test result. He was still being paid his salary.
was unfair.
in the workplace.
Kok argued that to compel him to be vaccinated Kok was employed as a Safety Practitioner,
would infringe his right to freedom and security
stationed at the premises of the employer’s
of the person (s12 of the Constitution), and there
client. According to the employer, in terms
was no law that compelled an employee to be
of a Risk Assessment that complied with
vaccinated. Mandatory treatment was prohibit-
the Consolidated Directions issued by the
ed by the National Health Act, and although he
Department
Labour2,
agreed that in terms of the Consolidated Direc-
Kok had been identified as someone who was
tions strong measures could be taken, this did
required to be vaccinated.
not include barring him from the workplace;
of
Employment
and
the employer could have resorted to alternative His duties entailed identifying security risks on
measures. He had previously contracted Cov-
site and required him to be “physically involved”
id-19 and had relied on his Christian faith and his
with guards, the client and the public. He also
body’s natural immunity to
shared an office with about 10 other employees Footnotes 1 Theresa Mulderij v The Goldrush Group Case no: GAJB24054-21 (discussed in last week’s Comment) 2
“Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces” (Government Gazette of 11 June 2021)
recover.
Contents Contents Page Page
41
Kok
the
Council and Others4 (Tshwane),
been decisions within the context of disciplinary
Applying the logic of the Tshwane judgment, the
employer had consulted with
the Labour Court reviewed an ar-
action. There was however “nothing in the LRA that
arbitrator found that Kok had been suspended
him on various occasions about
bitration award finding that the
states that the definition is limited to the extent
and the question therefore was whether the sus-
his position, and that he had had
employer had unfairly suspend-
that any suspension that takes place outside the
pension was fair or not.
the option of submitting weekly
ed the services of some employ-
realm of disciplinary action is to fall outside the
negative test results. He had
ees. The employer argued that
ambit of the LRA.”5 To accept otherwise would
The arbitrator could find no fault with the
made use of this option on some
there had been no suspension,
lead to an absurdity, in that an employer would be
procedures followed by the employer. As in
occasions but was no longer
as the reason for the suspension
free to suspend an employee for a reason other
the Goldrush matter, it had conducted a risk
willing to do so as he had to pay
did not accord with the defini-
than a precautionary suspension or punitive
assessment which complied with the guidelines
for the tests.
tion in s186(2)(b) of the LRA, being
sanction, without protection for the employee.
and procedures set out in the Consolidated
neither precautionary pending
In order to give effect to the right to fair labour
Directions, and made accommodations where
opposing
disciplinary proceedings nor a
practices in s23 of the Constitution, the court
it could. In Kok’s case, it had offered him an
views on whether Kok had been
punitive sanction, and it was set-
had to endorse a less restrictive interpretation of
alternative to vaccination, that is to provide a
suspended or not, the arbitrator
tled case law that those were the
‘suspension’.
weekly negative test report.
rightly first considered whether
only two types of suspension. As
Kok’s claim accorded with the
such, the Council had not had
definition of a suspension in
jurisdiction to entertain the dis-
terms of s186(2)(b) of the LRA3. This
pute.
Given
confirmed
the
parties’
that
would go to the issue of jurisdiction.
The court per Prinsloo J found no merit in that argument, holding
In City of Tshwane Metropoli-
that the case law confirming
tan Municipality v South African
that
Local Government Bargaining
precautionary or punitive had all
suspension
could
be
Footnotes 3 Section 186(2) of the Labour Relations Act 66 of 1995 provides that: ‘Unfair Labour Practice” means any unfair act or omission that arises between an employer and an employee involving (a) … (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; 4 Case no: JR795/18 (decided 15 October 2021)
“
Applying the logic of the Tshwane judgment, the arbitrator found that Kok had been suspended and the question therefore was whether the suspension was fair or not
Unlike in Goldrush, the arbitrator in this case engaged extensively with Kok’s claim that in terms of s12(2)(b) of the Constitution6 he could not be forced to vaccinate. While noting that the CCMA could in general not determine constitutional issues, the arbitrator found that in order to decide whether the suspension was fair, it was necessary to consider the
Footnotes 6 At para 38. 6
Everyone has the right to bodily and psychological integrity, which includes the right-b) to security and control over their body.
Contents Contents Page Page
42
factors set out in s36(1) of the
depriving them of their freedom.
Perhaps the most relevant finding made by
To sum up, the arbitrator concluded that Kok
Constitution that must be taken
In accordance with the reasoning
the arbitrator though was that the aim of vac-
had been suspended but was not a victim of
into account when deciding
in these judgments, the arbitra-
cination was not only to protect Kok but “to en-
any unfairness as far as his constitutional right
whether it would be justifiable
tor found that the public interest
sure a safe working environment for everyone
was concerned, and that the employer was
to limit a right in the Bill of
outweighed the right to bodily
and protect lives and livelihood.” This was not
justified in requiring him to be vaccinated for
Rights. In doing so, the arbitrator
and psychological integrity in
only a common law principle but was encom-
the purpose of providing a safe working envi-
had regard to judgments that
certain instances. In the present
passed in the Occupational Health and Safety
ronment. It was also an important factor that
dealt with the limitation of the
case, there were compelling rea-
Act (OHSA)10, which amongst others imposes a
the employer had followed due procedure and
rights in s12 of the Constitution.
sons to limit the applicant’s right,
duty on employers to take reasonably practical
offered Kok the option of testing weekly as an
In Minister of Safety and Security
notably because the vaccine had
measures to provide and maintain a working
alternative to vaccinating.
and Another v Gaqa8, for example,
been shown to successfully limit
environment that is safe and without risk to the
an individual was forced to
severe illness and transmission
health of its employees. As far as the arbitrator
Two questions arise:
undergo surgery to remove a
and it was clear that there was
was concerned, the requirement to vaccinate
bullet lodged in his leg, despite
only a very limited chance of ad-
was a “reasonably practical step” that every
having refused consent thereto.
verse side effects. As such, there
employer is “required and compelled to take”.
Similarly, in Minister of Health
was a clear relation between the
Finally, the arbitrator noted that private secu-
of the Province of the Western
limitation and its purpose. Less
rity services are designated as an essential ser-
1
9
Cape v Goliath and Others
restrictive measures such as face
vice in terms of the Disaster Management Act
provide comprehensive reasons and analysis
the court ordered individuals
masks were already in place and
and for the economy to survive it was crucial
for
who had been diagnosed with
it appeared that vaccination was
for the economy that front-line or essential ser-
references. But is the finding of a suspension
highly infectious drug-resistant
“almost a last resort in curbing
vices were delivered with as little as possible in-
correct? Prinsloo J’s extension of the ambit of
tuberculosis to be admitted to
the evil of 2019”.
terference and interruption. Linked to this was
suspension as defined in the LRA makes logical
a clear commercial rationale for the employer’s
and constitutional sense, but having been
decision, as it could not afford to have its oper-
given the option to be tested weekly, Kok had
ations affected by closures.
an election whether he could report for duty or
7
hospital against their will, thus
Footnotes 7 These are (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose. 8 [2002] ZAWCHC 9 9 2009 (2) SA 248 (C)
Footnotes 10 Act 85 of 1993 (Section 8)
Was the applicant suspended? No doubt conscious of the import of his finding, given the paucity of precedent
thus far, the arbitrator was at pains to his
decision,
including
substantiating
Contents Contents Page Page
43
2
Is the constitutional right to security in
Notwithstanding, it is suggested that the
and control over the body applicable?
process of deciding the fairness or otherwise of
In both Goldrush and the present matter,
any sanction imposed on an employee by reason
an employee is engaged, and
the applicants relied on their right to security
of his or her refusal to be vaccinated involves a
in Tshwane is relevant. In that
agreed with the company that
in and control over their body in s12(2)(b) of
similar process as that outlined in s36(1). As Brand
matter the employer suspended
by refusing to be vaccinated,
the Constitution. In his analysis, the arbitrator
J (as he then was) put it in Dotcom Trading 121
the employees’ services because
the applicant had made herself
accepted that the employer had limited Kok’s
(Pty) Ltd t/a Live Africa Network News v The
they refused to sign a new
incapacitated. This had made
constitutional right to bodily integrity, albeit he
Honourable Mr Justice King N.O. & Others [2000]
contract with different terms and
her dismissal fair. Perhaps had it
found there were compelling reasons for doing
4 All SA 128 (C):
conditions, after their previous
been given time, the employer
so. It is however doubtful whether this right is
fixed-term contract had expired
would have followed the same
applicable in the circumstances. The employees
“The application of section 36 involves a process
and they had continued to work.
route with Kok (although as it
were not being physically forced against their
of the weighing up of competing values and ul-
The court found it questionable
happens it appears that he was
will to be vaccinated; in other words, they had
timately an assessment based on proportionali-
whether that could be regarded
later “properly” suspended on
an election whether to vaccinate or not, albeit
ty which calls for the balancing of different inter-
as a fair reason for suspension
the grounds of some or other
certain consequences flowed from their decision
ests. Inherent in this process of weighing up is
but did not question that it was
misconduct). In general, that
not to. As such, the factors listed in s36(1) of the
that it can only be done on a case-by-case basis
indeed a suspension. In both
would seem more appropriate
Constitution that must be taken into account
with reference to the facts and circumstances of
these matters, the employees
than suspension, provided that
in order to determine whether a constitutional
the particular case.”
had been given a choice.
an employee has indicated that
right may be limited do not come into play in
he or she never intends to get
this scenario. Section 36(1) further provides that
The bottom line will, as ever, be whether in all
vaccinated.
instance,
a right may be limited only in terms of law of
the circumstances of a particular case, the
action be termed other than a
however, Kok had referred the
general application, or in other words, national
employer’s decision was fair.
suspension? Did Kok incapacitate
unfair labour practice dispute
legislation. At present there is no such law
himself from working? Would
only two days after he was denied
mandating compulsory vaccination.11
the “no work no pay” principle
entrance to the premises.
not, which is distinguishable from
matter, the arbitrator reasoned
a “true” suspension, where an
that
employee has no such election.
inability to do the job for which
In this regard, the court’s finding
What
could
the
employer’s
be applicable? In the Goldrush
“incapacity”
In
implies
this
an
Anne Erwin
Footnotes 11 It should be noted that the judgments cited in the Kok award were both made in terms of applicable legislation (The Criminal Procedure Act 51 of 1977 and National Health Act 61 of 2003), taking the factors set out in s36(1) of the Constitution into consideration.
Contents Page
44
Mandatory vaccination
The New Code is to take effect on the date that the Declaration of a National State of Disaster
What has stayed the same?
lapses. On the same date, the Declaration of a National State of Disaster was been extended
As with the Consolidated Direction, an
to 15 April 2022.
employer is still required to do the following in preparation of a mandatory vaccination policy:
Practically, this means is that the New Code will only come into effect once the existing
-
disaster management framework has fallen
account the relevant occupational health and
away. Until that time, it seems that the
safety legislation;
Consolidated Direction on Health and Safety
-
the vaccination of its employees (and identify
with mandatory vaccination) will still be
the dates by when employees must be fully
in force. Given that the Declaration of a National State
vaccinated, which includes any booster doses); -
health and safety committee, or health
may not have been the intention of the drafters
and safety/employee representative, as the
at the time, particularly in circumstances
On 15 March 2022, the Department of Employment and Labour issued a Code of Practice on managing exposure to COVID-19 in the workplace (the “New Code”).
conflict with the new Adjusted Alert Level 1 regulations. But insofar as the topic of mandatory vaccination is concerned, the New Code does provide some indication (and much needed clarity) on what the intention of the drafters may have been when drafting the Consolidated Direction.
Consult on the risk assessment and policy with
any representative trade union and any
of Disaster was just extended by a month, this
where portions of the Consolidated Direction
Based on the risk assessment, identify any measures to be implemented in respect of
in Certain Workplaces (which currently deals
What has the new Code of Practice changed?
Undertake a risk assessment, taking into
case may be; and -
Make the risk assessment available for inspection by the above representatives and/or an inspector.
Contents Page
45
The employer is still required to educate employees on the
Insofar as a refusal or failure to be vaccinated is
ground. The wording of Clause 12(4) provides,
vaccines. In this regard, the employer is required to counsel
concerned, there are three key changes:
without qualification, that:
benefits associated with these vaccines, the contra-indications
There is no longer a statement of the grounds
to the vaccine and the nature and risk of any serious side effects.
upon which an employee can refuse to
“If an employee refuses to be vaccinated, the employer must-
employees on the nature of vaccines used in the country, the
be vaccinated; And finally, an employee can still refuse to be vaccinated and
(a) counsel the employee and, if requested, allow
there is a process for an employer to counsel the employee and
There is an obligation to take steps to reasonably
the employee to seek guidance from a health
refer an employee for medical evaluation, if the refusal relates to
accommodate
and safety representative, worker represent-
medical contraindications to the vaccine.
vaccination (on any grounds); and
What has changed?
If an employee produces a medical certificate attesting
that
employees
an
employee
who
has
refuse
ative or trade union official; and
contra-
(b) take steps to reasonably accommodate the employee in a position that does not require
Every employer must now take measures to determine the
indications, and the employer accepts the
vaccination status of their employees. In giving effect to the
medical certificate, or the employee is referred to
New Code, an employer may require its employees to disclose
medical evaluation and that evaluation confirms
This appears to suggest that, in all circumstances,
their vaccination status and to produce a vaccination certificate.
that the employee has contra-indications, the
an employer must look to accommodate an
This has caused much anxiety for employers who have been
employer must accommodate the employee in
employee who refuses to be vaccinated. The
uncertain if they could ask for this information. The confirmation
a position that does not require the employee to
problem with this is that it gives free rein
that an employer has an obligation to take measures to
be vaccinated.
to employees to object on a multiplicity of
determine employees’ vaccination statuses and thus, impliedly
the employee to be vaccinated.”
unjustified grounds.
the employee has an obligation to disclose this information
In the New Code, there is no reference, at all, to
is a welcome inclusion in the New Code, particularly where
constitutional grounds as the basis for refusal
As an example, an employee may seek to refuse
employees who are reticent to vaccinate often refuse to disclose
and it appears that the New Code recognises
to vaccinate solely on the basis that they want to
their vaccination status and claim that it is an unlawful request
that an employee can refuse vaccination on any
continue working from home.
(even where it is not).
Contents Page
46
If an employee can work remotely
This seems somewhat incongruent
and there is an obligation to take
with
the
ordinary
principles
of
steps to reasonably accommodate the
employment law, but until there is
employee, an employer may find itself
further clarity on this issue employers
in the position of having to reasonably
seeking to discipline employees for their
accommodate an employee who, in
refusal or failure to vaccinate (based on
essence, fails to follow a lawful and
unjustified reasons) employers should,
reasonable instruction to return to
as a measure of mitigation, explore
work (and vaccinate).
whether there is any way to reasonably accommodate the employee prior to also
dismissing them. In the flurry of cases
suggests that an employer must seek
that we have seen referred to the
to
who
Commission for Conciliation, Mediation
refuse or neglect to be vaccinated in
and Arbitration, an employer might
accordance with the instruction to do
very well be advised to employ these
so. The New Code states that one of
measures prior to the enactment of the
its purposes is to provide guidance to
New Code.
In
addition,
the
accommodate
New
Code
employees
employers seeking to accommodate employees who refuse or fail to
Lauren Salt, Employment | Executive
vaccinate against the virus.
lsalt@ENSafrica.com
Contents Page
47
New case deals with a South African worker who was fired for ‘complaining too much’ what you should know South
Africa’s
Commission
for
Conciliation,
The employee claimed that his complaints arose
the employer went out of their way to assist the
Mediation and Arbitration (CCMA) recently
from disagreement with his poor work performance
applicant. Despite the efforts of the employer, poor
rating by the employer.
work performance persisted which had resulted in the
dealt with the dismissal of an employee who
continuously
raised
grievances
low-performance rating afforded to the employee.”
at work, notes Jacques van Wyk,
“The employee had indicated that he had financial
Thereafter, the commissioner noted that the employee
director at Werksmans Attorneys,
problems and familial problems which affected
had continued to file grievances after a successful
who highlights the commission’s
his mental focus and concentration at work due to
conciliation meeting in which he had agreed to “bury
stress. He was assisted through the process of the
old wounds”. Ultimately, the relationship between the
Independent Counselling and Advisory Services
employee, his co-workers and superiors grew toxic.
The case centred on the alleged
(ICAS) and it was established that he was fit to
The employee continued to fail to follow instructions
unfair dismissal for reasons of
perform his work,” said van Wyk.
and displayed aggression.
“The employer assisted the employee who later
“Incompatibility
‘endless
continuously rejected advice and persistently raised
the employer’s disciplinary policy as a form of
complaints’ and continuously displayed
issues that had previously been dealt with. The CCMA
misconduct,” said van Wyk.
aggression to his immediate superiors.
commissioner noted that the evidence showed that
findings.
‘incompatibility’. The
employee
lodged
had
been
incorporated
in
Contents Page
48
“The employee denied that he was aware of the provisions
The commissioner found that the employee had disrupted
in the employer’s disciplinary code making incompatibility
the harmony of the workplace, warranting dismissal. He
a disciplinary offence. This was rebutted by evidence
had been counselled but had refused to co-operate with
provided by the employer which had been affirmed by the
remedial measures or to sign minutes.
commissioner”. The termination of his employment was the last
CCMA’s findings
resort since the employer had invested a lot of time to consider his grievances which were unfounded
The CCMA commissioner relied on the case of Jabari v Telkom
and baseless.
SA (Pty) Ltd [2006] 10 BLLR 924 (LC), in which the Labour Court highlighted important characteristics in explaining the nature
“The notion of incompatibility is nebulous but,
of workplace incompatibility. It said that:
when proven, can serve as a valid basis for dismissal. An example of this is when an
“…incompatibility refers to the employee’s inability or
employee lodges continuous grievances
failure to maintain cordial and harmonious relationships
which are unfounded or have been
with his peers, incompatibility is a form of incapacity
resolved on a previous occasion which
and incompatibility is an “amorphous nebulous concept”
disrupt the harmony in the workplace,”
based on subjective value judgments”.
said van Wyk.
Contents Page
49
Reading Country Club
Click here for more information
Contents Contents Page Page
50
Post-termination confidentiality restrictions Are they worth anything? The value of post-termination confidentiality and non-disclosure restrictions on employees is often questioned, with employers (and employees) suspicious of their value and enforceability. Earlier this month, the Labour Appeal Court (“LAC”), in Arthur Owen Carolin v World Power Products (Pty) Ltd, handed down an interesting judgment confirming precisely what value provisions such as these can hold for employers.
Background
“The Employee undertakes not to disclose information, of any nature regarding the
The employee commenced employment
Company or this agreement, to any person
with World Power Products in 1990.
or organisation. Such information shall
In June 2016, an extremely strained
include methods, processes, computer
relationship had developed between the
software,
employee and the managing director
programmes,
of the company. Due to this strained
information,
relationship, the company approached
drawings,
the employee with a view to bringing
any other information which could be
the employment relationship to an end
damaging to the Company’s operations
amicably, through the conclusion of a
or which could benefit other parties to the
termination agreement.
detriment of the Company.” (our emphasis)
documentation, trade
secrets,
intellectual financial
client
lists,
technical property,
information,
or
The agreement further provided that then
before 26 June 2016, the company would
concluded. Of particular importance was
pay the employee ZAR400 000 in full and
clause 2.3 of the termination agreement
final settlement of any disputes between
which stated:
the parties.
A
termination
agreement
was
Contents Contents Page Page
51
The employee left the company on
termination agreement by sending this
10 June 2016 and duly handed in his
email to his former employer’s customers
company cell phone and laptop. On 20
and that this conduct entitled World
June 2016, the employee commenced
Power Products to withhold payment of
employment at Remcor (Pty) Ltd, a
the ZAR400 000 as per the termination
competitor of the company.
agreement. On 28 June 2016, the employee’s attorney
Remcor, the employee sent an email
wrote back, denying that the employee
from his new Remcor email address to
had
a number of people in which he wrote;
agreement, and included an undertaking
“please see my new contact details
to delete and destroy all World Power
below”.
message
Products’ property that the employee still
Remkor
had in his possession, including business
Technologies”. The list of addressees
cards that he had accumulated while in
constituted a range of clients of his
the employ of World Power Products.
appeared
Underneath “Arthur
this Carolin
The Labour Court found that, contrary to the clear terms of the termination agreement, the employee had “disclosed information emanating from the business cards amassed during his employment, that information is clearly customer connections.
On 22 June 2016, while employed by
repudiated
Labour Court
the
termination
former employer, World Power Products. This did not satisfy World Power Products News of this travelled fast and on 24 June
who then sought relief in the Labour
2016, World Power Products’ attorney
Court.
Customer lists have been held by our Courts to be worthy of protection and need not necessarily be embodied in the document to be construed as confidential information.” The Labour Court held that the employee had repudiated the termination agreement which entitled the employer to accept this decision and regard the agreement as having been cancelled, which meant that World Power Products did not have to pay the employee the ZAR400 000 separation payment amount.
Labour Appeal Court On appeal to the Labour Appeal Court, the employee argued that the Labour Court should have concluded that: 1.
the employee had sent the email in question to addresses he had taken from business cards, as opposed to customer lists;
2. this source of information did not fall within the scope of confidential information and thus there had been no breach of clause 2.3 of the termination agreement; and 3. the Labour Court had erred in concluding that the employee had demonstrated an intention to repudiate the agreement, particularly because the agreement did not contain a lex commissoria clause which would have allowed World Power Products to cancel the agreement, in
addressed a letter to the employee,
the event that the employee breached
alleging that he had repudiated the
clause 2.3 of the termination agreement.
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52
Conclusion
The Labour Appeal Court did not accept the employee’s
The Labour Appeal Court also reiterated the law
argument and found in favour of World Power Products,
regarding repudiation, confirming that a repudiation
holding that:
occurs where one party to a contract, without lawful
This case highlights the importance of and value to
1.
the wording of the termination agreement was clear: it
grounds, indicates to the other party in words or by
employers of post-termination confidentiality and non-
embraced the prohibition of the disclosure of information,
conduct a deliberate and unequivocal intention no
disclosure obligations.
including client lists, and there was no suggestion from
longer to be bound by the contract. It was clear in this
the wording that a disclosure had to be regarded as
case that the conduct of the employee fell within the
It also demonstrates that disclosure of a “client list”
confidential information; and
scope of this dictum: by his conduct, the employee had
(something which is often prohibited in termination
2. the fact that the employee generated an email which was
exhibited a clear and unequivocal intention not to be
agreements and other similar agreements, like those
captured on the system of his new employer, and which
bound by the terms of the termination agreement. The
in restraint of trade) does not necessarily have to take
contained the email contacts of a range of the employee’s
other party to the agreement, World Power Products
the form of disclosure of a physical list or “phone book”
former employer’s customers manifestly constituted a
was entitled to accept this repudiation, which it did,
of client contact details. In this case, the list of email
disclosure of the former employer’s client lists. The clear
which meant that it did not have to abide by the further
addresses generated when the employee sent out an
consequence was that a list of customers of World Power
terms of the agreement which required it to pay the
email to various of his former employer’s customers was
Products was now on Remcor’s computer system.
separation payment to the employee.
sufficient to constitute a “client list” which was now in the hands of his new employer.
The Labour Appeal Court upheld the decision of the Labour
This judgment should provide comfort to employers
(dismissing
as it represents a tangible example of the actual value
the appeal, with costs), which
post-termination restrictions such as these can have
meant that World Power
for their businesses. On the other hand, the judgment
Products was not required
should sound a clear warning to employees seeking to
to pay the employee the
bypass legitimate post-termination obligations owed to
ZAR400 000 separation
former employers that doing so may have considerable
payment
negative consequences for them.
for
Court
in
the
agreement.
as
provided
termination Henry Rossouw, Employment | Executive Curtis Nhliziyo, Employment | Associate ENSafrica.com
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53
South Africa’s new privacy rules leave businesses with Covid vaccine headache By Preeta Bhagattjee (director), Aphindile Govuza (senior associate) and Reece Westcott (candidate associate) at Cliffe Dekker Hofmeyr.
While an increasing number of South African businesses are moving to introduce Covid vaccine policies, questions have been raised as to whether a business can, in terms of the Protection of Personal Information Act (POPIA), request an employee, customer, contractor or third-party to disclose their vaccination status. “Disclosing one’s vaccination status entails the
additional protection given its sensitive and
‘processing’ of ‘special personal information’
confidential nature, it said.
under POPIA, says legal firm Cliffe Dekker Hofmeyr.
POPIA
provides
for
very
specific
legal
justifications or lawful bases that allow for the Specifically, such information constitutes health
processing of health data. These are set out in
data under section 26 of POPIA, and is afforded
detail in sections 27 and 32. Section 27(1) deals
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54
with general authorisation concerning special personal information and
Authorisations
-
is
specifically allows a responsible party to process such data if: Processing is carried out with the consent of a data subject;
Any
public
body,
necessary
in
if
such
connection
processing with
the
Further, section 32(1) of POPIA deals with
implementation of prison sentences or
the specific authorisations concerning the
detention measures; or -
processing of health data, the firm said.
Administrative
bodies,
pension
funds,
employers or institutions working for Processing is necessary for the establishment, exercise or
Processing of such data is allowed if it is carried
them, if such processing is necessary for
defence of a right or obligation in law; or
out by:
the processing activities specified under
-
professionals,
Information has deliberately been made public by the data
institutions
and
subject.
services, if such processing is necessary
“Until legislators specifically put forward an
for the proper treatment and care of the
express right to access or process vaccination-
As such, is there a specific right or obligation in law that justifies the
data subject, or for the administration of
related health data in law, we are of the view
processing of vaccination-related health data?
the institution or professional practice
that businesses that request information
concerned;
regarding the vaccination status of their
Insurance companies, medical schemes,
employees, guests to their premises, customers
illustrate this point stems from the Consolidated Direction on Occupational
medical
and
or third-party contractors would require an
Health and Safety Measures in Certain Workplaces which obliges an
managed healthcare organisations, if such
express (and POPIA) compliant consent from
employer to take measures to screen workers/employees when they report
processing is necessary for the activities
the data subject to whom the special personal
for work in order to determine whether it is safe to allow them to be present
specified under section 32(1)(b);
information relates,” Cliffe Dekker Hofmeyr
Schools, if such processing is necessary
said.
“At the time of writing this article, the answer is no. A good example to
at the workplace,” Cliffe Dekker Hofmeyr.
-
-
scheme
facilities,
healthcare
section 32(1)(f).
Medical
and
administrators
social
to provide special support for pupils or to “The corresponding guidelines for such screening practices are overtly
make special arrangements in connection
By Preeta Bhagattjee (director), Aphindile
silent on the disclosure of a person’s vaccination status. Therefore, in the
with their health;
Govuza (senior associate) and Reece Westcott
Any public or private body managing
(candidate associate) at Cliffe Dekker Hofmeyr.
absence of a clear and express obligation in law that specifically mandates
-
the disclosure of a data subject’s vaccination status, responsible parties can
the care of a child if such processing is
only rely on the remaining justifications under section 27(1) of POPIA to
necessary for the performance of their
process them,” it said.
lawful duties;
Contents Page A SEIFSA Industrial Relations and Skills Development seminar featuring Johnny Goldberg 55
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across industries on a range of pressing industrial relations, human capital and skills development, labour and employment law themes and topics dominating the world of work landscape.
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Contents Page
56
WHAT TO EXPECT
implemented correctly,” she said, though this was often not the case with temperature readings. Because airborne transmission was far greater than surface transmission, the effectiveness of sanitising for controlling the virus that causes Covid was “reduced”, but it has “benefits for
When you’re expecting covid-19 restrictions to be lifted
other disease prevention — especially in the absence of running water”.
“
“Reasonable measures at this stage would include public communication that encourages good, voluntary hygiene practices such as handwashing for all, and wearing masks and socially distancing for those with symptoms
Scientists weigh in on what no longer works, what never worked, and what is still worth doing By Tanya Farber, Senior science reporter
IN NUMBERS •
20%: The week-on-week reduction in new confirmed cases
Non-pharmaceutical interventions (NPIs)
correctly — and social distancing hasn’t
have left a footprint on our daily lives that
been that possible anyway in SA.
will stand us in good stead. But if you think they’re still preventing the spread
In sum, “with Covid-19 transmission at a
of Covid, think again.
low point now, NPIs need no longer be mandated”, Sheetal Silal, the director of
Taking temperatures at venue doors is
the Modelling and Simulation Hub Africa
described as “a complete waste of time,
at the University of Cape Town, told the
and always has been”, and sanitising
Sunday Times this week.
may prevent other diseases but isn’t doing much against Covid.
“Most of these NPIs had some value
Masks still have their place — when worn
in reducing Covid transmission when
•
2,600: Covid patients in hospital
of any airborne infectious disease, including ‘flu and colds caused by other coronaviruses.”
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57
Silal said: “Reasonable measures stage public that
would
at
this
include
For example, being maskless at an open-air theatre is fine if
look like, and the virus has surprised us a number of times, it
you’re sitting on the lawn, but when you use the bathrooms or
would be important to now work on a mechanism to switch
fetch food, a mask should be worn.
restrictions back on in case there is a signal for a new variant
communication
encourages
causing sufficient levels of severe disease,” she said.
good,
Preiser said sanitising has only a “minor role” in preventing the
voluntary hygiene practices such
spread of Covid, but it has led to “an improved level of general
“Both the signal and the level of disease severity that would
as handwashing for all, and wearing
hygiene — for example in the case of regular wiping of trolley
define it would need to be agreed on by the government.”
masks and socially distancing for those with symptoms of any
handles, which is likely beneficial for other reasons”.
airborne infectious disease, including ‘flu and colds caused by other coronaviruses.”
Shabir Madhi, dean of health at Wits University and a professor Hand-spraying, however, is “probably quite useless”, and the
of vaccinology, said NPIs were “particularly useful when we
least efficient measure of all is taking temperatures. Its only
were trying to limit the rate of infections in the context of very
Health minister Joe Phaahla hinted on Friday that the
possible benefit is to “increase awareness about Covid rather
limited immunity against the severe sequelae of Covid-19,
requirement to wear masks outdoors will be dropped when
than screening out infectious people”.
including death”.
along with the requirement that travellers entering SA must
Social distancing might be useful “in critical areas like public
But many of them were conceptualised and advocated “before
present a negative test result.
transport” but it is already not implemented nor enforced, said
we had a full understanding of the major mechanism of
Preiser, adding that he “would not want to be in a very crowded
transmission of the virus”.
the national coronavirus command council meets next week,
He said the health department was ready with its plans
indoor space even now” but there is a negative economic
for regulating Covid after the state of disaster is lifted, and
implication if limitations on occupancy continue.
We now know it is airborne and is not primarily spread through
Stellenbosch University virologist Wolfgang Preiser said he
According to Gesine Meyer-Rath, associate professor of health
direct droplets from person to person or contaminated
hopes the rules will still require masks indoors and in crowded
economics at Boston and Wits universities, it is important to
surfaces.
outdoor settings.
have a mechanism in place to reintroduce NPIs at short notice. “Since none of us know what future SARS CoV-2 variants might
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58
“Consequently, whereas some of the NPIs could be useful to prevent other
Taking temperatures at venue doors “is a complete waste of time” and al-
diseases, they have little value in preventing Covid,” he said.
ways has been, while “social distancing has very limited use unless in the case of a symptomatic infected person”.
Implementation and adherence had been poor anyway, as shown by the fact that about 85% of the population has been infected, so it was “highly
As for limiting capacity indoors, Madhi said, “there is a possible case to be
questionable” whether regulations on NPIs achieved much.
made” when transmission is high, but it should not be routine.
85%
of the population has been infected Sanitising should become a “permanent fixture” because it protects against enteric diseases — those related to the intestines.
“We have extensive population protection against infection [from past infection and vaccines], and it would be foolish to still believe that we are trying to prevent infections,” said Madhi. Measures are needed to protect high-risk groups when there is heightened intensity of virus transmission, and these include “ensuring they and others are adequately vaccinated”. — Additional reporting by Amanda Khoza
59
Could employers who don’t offer remote working lose valuable It appears from recently released research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working, writes employment lawyer Jacqui Reed.
The media reported on two recent studies conducted in the United States of America, which found that the significant majority of white collar employees would prefer to work from a location of their choice, rather than their employer’s offices. A poll conducted by management consultancy, Advanced Workplace Associates, found that only 3% of employees wish to return to the office on a full-time basis and 86% would like to work from home at least two days per week. Research conducted by Prithwiraj Choudhury, a Harvard Business School professor, who is an expert on remote work, shows that a hybrid workforce is more productive, more loyal and less likely to leave. With companies from Twitter to PwC now giving employees the option to work virtually forever, Choudhury said businesses that don’t adapt will risk incurring higher employee attrition.
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In response to what the world of work will look like in 10 years, he said: We will probably in 10 years stop calling this “remote work”. We’ll just call it work, and work is something you do, not where you go or where you live. My prediction is the process will unfold in every industry and every country. There will be a few leading companies that will adopt this and attract talent, and there will be laggards digging their heads in the sand and losing talent. His model provides for 25% of employees’ time being co-located with the team, mentoring junior people, going out for team dinners and making memories. Importantly, these studies only apply to white collar employees and are not applicable in respect of those employees who perform physical tasks.
What to do to remain competitive It appears from this research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working. Many employers had, in fact, embraced this concept prior to the pandemic. This was evident from the multiple requests we received from clients across various sectors to review their agile/flexible working policies and procedures to ensure compliance with their current contracts of employment. While it was mandatory for all employees, who were able to do so, to work from home at the commencement of the pandemic, the South African government has
slowly eased restrictions over the last two years and all employees are now permitted to attend at the workplace. Importantly, those employees who test positive for Covid-19, but are asymptomatic are not required to isolate. This raises questions regarding the employer’s obligations to ensure a safe and healthy working environment for its employees. Employers are permitted to impose stricter guidelines than those which the South African government requires, particularly in circumstances where they will be in breach of their obligations in terms of the Occupational Health and Safety Act, if they permit Covid-19 positive employees to attend the workplace and spread the virus to those who may form part of a vulnerable group.
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61
Circumstances have changed In reaching a decision as to whether it would be appropriate
-
to follow with South African government’s amendment to the regulations and permit Covid-19 positive employees, who are asymptomatic, to attend the workplace, it would be prudent for an employer to not only consult with its
-
employees on the issue, but to also review its risk assessment changed sufficiently from a scientific perspective such that the employer’s decision constitutes compliance with its health and safety obligations to its employees as well as
When determining whether to permit employees to spend the significant majority of their time (75% according to the study above) working from home or some other location, other than the workplace, the employer will need to consider a number of factors, including: -
how
the
initially
mandatory
remote
working
requirement imposed by most governments across the
example of this may be a South African law firm that
mental and physical well-being;
provides advice to clients based in South Africa, which
whether the nature of the business is such that in-
would require only South African qualified lawyers to
person mentoring, training, guidance and assistance of
perform the work. Of course, the hierarchical nature
junior employees (particularly those in apprenticeship
of a law firm is such that it would also be necessary to
or internship roles) is necessary or not;
consider the impact, if any, on trainees who are trained
whether requiring employees to work from the office
by senior lawyers and whether this training is effective
will negatively impact upon them from a financial and
in the remote work setting.
or mental and physical health perspective and/or result
and plan. This is to determine whether circumstances have
employee’s obligations in this regard to each other.
world impacted upon productivity and the employee’s
-
in direct or indirect discrimination of employees based
Importantly, and this has been the case throughout the
on gender and race. (Several studies have suggested
various iterations relating to employer’s obligations during
that a return to work with the absence of any flexibility
the pandemic, employers must consult with employees
has a negative impact on working mothers);
and all other relevant stakeholders, such as trade unions
whether employees are more productive, efficient and
and employee representatives, prior to making a decision
content working remotely or in the office; and
in relation to an employee’s workplace.
whether the employer runs the risk of failing to attract talent (particularly from other jurisdictions) because it does not implement a flexible/agile working policy
- Jacqui Reed is an employment lawyer for international law
of some kind. Of course, the nature of the employer’s
firm, Herbert Smith Freehills.
business and whether employees in other jurisdictions would be in a position to perform work for a South African-based company are relevant considerations. An
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62
How to be vulnerable at work
Without spilling every thing By Brené Brown
How
open
should
you
be
with
your
coworkers? These days many workplaces are encouraging their employees to be vulnerable and authentic, but opening up at work can feel precarious. If we open up the wrong way, it can sometimes backfire but vulnerability can also bring us closer to other people and make teams stronger. The key, according to author, podcast host and vulnerability researcher Brené
Vulnerability minus boundaries is not vulnerability. Brené Brown: So I would say you’ll never succeed in a performative culture if you don’t have some of the things that really are vulnerable, like curiosity. If you pretend like you know everything and you’re not a learner, that house of cards is going to collapse at some point. What I think people are asking is: “How much is too much to share about my feelings?” And that always leads me to this very simple sentence:
Brown, is establishing boundaries.
Vulnerability minus boundaries is not vulnerability.
On a special episode of the TED podcast WorkLife,
Are you sharing your emotions and your experiences to
Brené and organizational psychologist Adam Grant talk about what vulnerability in the workplace really means. Here’s an excerpt from their perspective-shifting con-
move your work, connection or relationship forward? Or are you working your s—t out with somebody? Work is not a place to do that.
versation:
I’ll give you an example. I was working with a group of
Adam Grant: One of the fears that a lot of people carry
came up to me and said, ”I’m going to be vulnerable.
around is that if they’re vulnerable at the wrong time or with the wrong person, especially if they’re in a more performance-oriented culture at work that they might not be seen as competent. How do I figure out what the appropriate amount of vulnerability is?
newly funded CEOs from Silicon Valley. One of them
I’m going to tell my investors and my employees, ‘We’re in over our head. I don’t know what I’m doing, and we’re bleeding money.”
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63
I said, ”OK, you must have stepped out to go to the bath-
truly authentic and truly vulnerable people — personally
not having to field a lot of questions about it. That’s what
room during the part where I said vulnerability minus
disclose very little. And some of the leaders I work with
I need right now.”
boundaries is not vulnerability. We always have to inter-
disclose everything, and they are the least authentic
rogate our intention around sharing and question who
and vulnerable people.
we’re sharing with and whether it’s the right thing.”
Grant: This is totally fascinating. You’re saying that I can
He said, “You don’t think I should do it?”
Grant: That is incredibly empowering.
be vulnerable without disclosing a ton about my emo-
For more workplace wisdom from Brené and Adam,
tions or my life.
listen to their full conversation here. Plus, listen to conversations with Adam and other inspiring individuals
I said, “I think you’ll never get funding again. And I think
Brown: Yes.
like Jane Goodall, Glennon Doyle, Malcolm Gladwell and Daniel Kahneman on this season’s WorkLife with Adam
you will unfairly put the people who’ve probably left great jobs to follow you over here into a terrible position
Grant: How? I have gotten feedback from people I work
of fear. If you are literally in over your head, you should
with that when there’s something difficult going on in
absolutely share that with someone. But the question is:
my life, I don’t share much about it. My fear has been
You can also listen to the full episode with Brené and
Who is the appropriate person to tell?”
that when people know there’s something difficult go-
Adam on TED.com just click below:
ing on in my life and I didn’t open up about it, they’re Grant: I so appreciate the nuance that you bring to
going to think that I’m not being honest or authentic
vulnerability — just because vulnerability helps to build
with them or that I’m lacking vulnerability. You’re saying
trust doesn’t mean you should share everything with all
there are ways that I can maintain my privacy and still
people. And I think that’s such a common misconception.
be vulnerable. Tell me more.
Some of the most vulnerable and authentic leaders
Brown: You can say, “I’m really struggling right now. I’ve
I’ve ever had the pleasure of working with personally
got some stuff going on and it’s hard, and I wanted y’all
disclose very little.
to know. And I want you to know what support looks like for me is that I’ll check in with you if I need something or
Brown: Look, some of the most vulnerable and authen-
I may take some time off. Support also looks like being
tic leaders I’ve ever had the pleasure of working with —
able to bring it up with you when it’s helpful for me but
Grant podcast.
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64
PAID HOLIDAYS FOR THE METAL INDUSTRY
With the long weekend coming up, many companies will be wondering how to apply and interpret the
-
One-and-a-third times the hourly rate for the hours worked.
Public Holiday provisions in the Main Agreement. In this article, prepared by SEIFSA’s Industrial Relations
If an employee works overtime i.e., hours in excess of
Division, the application of Public Holidays is clarified.
the normal hours on that day, then he/she is entitled to an additional two-and-a-half times the hourly rate
All the Public Holidays specified in the Public Holidays Act are paid holidays for employees covered by the Main Agreement.
for those extra or overtime hours.
Where a Public Holiday falls on a Sunday
Employees covered by the Agreement are not required to work on a Public Holiday and are entitled
Public Holiday’s falling on a Sunday will be observed
to full pay if the day falls on an ordinary working day.
as a paid public holiday the following Monday. Em-
Companies working a Monday to Friday work week
ployees who are called-in to work on a Sunday, which
are not required to pay employees for a Public Holiday
happens to be a Public Holiday, will be paid at Sunday
if it falls on a non-working day, for example Saturday
rates i.e., double-time.
(24 September 2022) unless employees work on that day.
The one exception to this rule is where Christmas Day falls on a Sunday. Employees working on Christmas
Working on a paid Public Holiday
Day, which happens to be a Public Holiday, will be paid at the Public Holiday rate. This is due to the next
Where an employee works on a paid Public Holiday the employee is entitled to: -
The rate of pay for an ordinary shift; plus
day being Day of Goodwill.
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65
Paid Public Holidays and shift workers
Annual leave and Public Holidays
work on an elected non-working a such as a Saturday,
Difficulty often occurs where employees work a two
If a Public Holiday falls within an employee’s annual
quirements to implement this arrangement are man-
or three-shift system, especially where part of the shift
leave on a day which would have been a normal work-
falls on the Public Holiday. In such a case, the worker
ing day, then the leave period must be extended by one
will be paid for the shift before, during or after their shift
day with full pay for the day. Where Public Holiday’s fall
as if it were a paid Public Holiday. Therefore, the whole
on a non-working day then the annual leave is not ex-
shift, if not worked through the Public Holiday, irrespec-
tended.
tive of where it falls, will be paid on Public Holiday rates. Where the employee works overtime on that particular
Public Holiday during periods of short-time or lay-off
shift, they must be paid at two-and-a-half times for the
Any Public Holiday during a period of short-time or lay-
overtime hours.
off must be regarded as falling on an ordinary working day, and the employee must be paid at the ordinary
For example, a night-shift employee starts his shift at,
hourly rate for that day.
say 18:00 on Thursday, 15 June 2022 and ends his shift on Friday, 16 June 2022. The part of the shift from mid-
Work-in-time arrangements to extend Public Holidays
night onwards falls on the Public Holiday. If the employ-
Management and employees may agree to work time
ee’s next shift starts at 18:00 on 16 June 2022, the option
in, so that designated normal working days may be
is to treat either the whole shift starting on 15 June or
treated as paid holidays, thereby extending existing
the whole shift starting on 16 June 2022 as the public
public holidays and creating long weekends. For exam-
holiday.
ple, 16 June 2022 falls on Thursday. The workforce may
in return for a paid holiday on Friday 17 June 2022. Reagement support, a 75 percent positive ballot amongst the workforce and an exemption from the Council.
Absence after or before a Public Holiday Where an employee is absent the day before or the day after a Public Holiday, the employee does not lose his/ her entitlement to be paid for the public holiday. However, this does not absolve him/her from appropriate disciplinary action if the reasons for the absence do not validate his/her absence. Where management requires further assistance, they should contact SEIFSA’s Industrial Relations Division (011) 298-9400.
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66
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