SEIFSA News - Jan-Feb-2022 by Wow Concepts

SEIFSA NEWS

SEIFSA’S LOBBYING, ADVOCACY AND COLLECTIVE BARGAINING FRAMEWORK Covid-19 complications give SA steel sector a shot in the arm Proposed Amendments to the Employment Equity Amendment Bill

Global resources and energy overview SEIFSA NEWS

| JANUARY / FEBRUARY 2022

SEIFSA CEO Lucio Trentini highlights its commitment to the industry by its investment in the SEIFSA Training Centre. A facility dedicated to producing exemplary individuals within the Steel and Engineering sector. Email info.stc@seifsa.co.za for more information.

Click here to view CEO message 2

SEIFSA NEWS

JANUARY / FEBRUARY 2022

Publisher Steel and Engineering Industries Federation of Southern Africa (SEIFSA) Advertising sales@seifsa.co.za (011) 298-9400 Editor Nuraan Alli Tel: (011) 298 9436 E-mail: nuraan@seifsa.co.za

CONTENTS SEIFSA NEWS

Members – On-line access

CEO Desk

SEIFSA’s lobbying, advocacy and collective bargaining framework

12 SEIFSA’S LOBBYING, ADVOCACY AND COLLECTIVE BARGAINING FRAMEWORK Covid-19 complications give SA steel sector a shot in the arm

Design and layout Zandile Ngubeni Tel: (011) 298-9421 E-mail: zandile@seifsa.co.za

Proposed Amendments to the Employment Equity Amendment Bill

Exemptions from vaccine requirements in the workplace on the basis of religion, opinion or belief

Is there a need for TES in SA’s construction industry?

Accredited Temporary Employment Servive Providers

Global resources and energy overview

Cover

Eaton appoints Godfrey Marema as South African MD

What constitutes a “benefit” in terms of section 186(2) of the Labour Relations Act?

SEIFSA’s lobbying, advocacy and 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.

colllective bargaining framework

Zero Tolerance Disciplinary Offences

Can employers require unvaccinated employees to take PCR COVID-19 tests regularly. . . at their own cost?

28 30

SEIFSA News is an exclusive membership benefit.

6 issues published annually.

What is required of an employee to prove an equal pay for equal work claim?

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 members in the metals and engineering industry.

Interfering In Domestic Employment Matters By The EFF: The Labour Court Responds

36 44

Dismissals and resignation should not be dressed up as voluntary retrenchment

Retrenchments, short-time and lay-offs – some important considerations

Proposed Amendments to the Employment Equity Amendment Bill

Global resources and energy overview

Covid-19 complications give SA steel sector a shot in the arm

SEIFSA NEWS

| JANUARY / FEBRUARY 2022

CHIEF EXECUTIVE OFFICER’S DESK

SEIFSA CEO Lucio Trentini has just released his annual video message for 2022. Where he highlights the challenges of the last year, the state of the steel and engineering industry, as well as everything coming in the future. Be sure to view it below.

Click here to view CEO message 4

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SEIFSA AFFILIATED MEMBERSHIP SEIFSA is one of the largest and influential employer federation in South Africa. Our affiliated member companies employ well over two-thirds of the industry’s workforce.

DID YOU KNOW

Contact:

sales@seifsa.co.za or call 011 298 9400

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As a SEIFSA affiliated member, you are protected from plant level bargaining.

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COVER STORY

SEIFSA’S LOBBYING, ADVOCACY AND COLLECTIVE BARGAINING FRAMEWORK The steel and manufacturing industry is facing many challenges, primarily these relate to a lack of profitability, weak balance sheets and low demand. In addition, the industry has not used its collective voice to effectively advocate to government on policy and interventions.

o assist in this advocacy role the SEIFSA board has mandated an intervention aimed at providing leadership to the SEIFSA membership and in a compact with labour to make a positive contribution to the resolving and building of a virtuous circle rather than the current vicious cycle.

SEIFSA on behalf of and with the support of the Associations must lobby, advocate, debate and/or negotiate these key questions on behalf of the industry.

OBJECTIVE:

STRATEGIC INTENT AND PRIMARY FOCUS:

Much of the problem in the steel industry can be laid at the low levels of demand and the significant overcapacity in steel production and fabrication. While some of the excess capacity in fabrication has been hollowed out through the disappearance of some significant players (e.g., Genrec, Dorbyl, DCD, Steeledale and various foundries) the excess capacity has not yet impacted on the steel producers. This is likely to begin if we see a reduction in steel prices and continuing low demand. For SEIFSA to perform its role in terms of its vision and mission the affiliated membership must align around the following: • • •

What do we stand for? What do we communicate to stakeholders (e.g. government, labour and the business community)? What do we report back to the broader membership?

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For the steel industry to work, the industry needs viable and competitive primary steel manufacturers.

For SEIFSA and in turn the affiliated Associations to become more relevant and influential, all stakeholders within the sector must work together. It is imperative that Government, business and labour find the solutions to significantly increase South Africa’s GDP. The primary driver of this is new investment and the stakeholders need to build consensus on the reasons for the current lack of growth and what can and should be done to remedy this.

BROAD INITIATIVES TO ACHIEVE THE OBJECTIVES: •

•

Ensure that SEIFSA becomes the recognised authority and voice of the metal and engineering industry in all relevant fields, particularly in labour relations, skills development, economics, manufacturing, trade relations and the commercial sector; Promote the growth and wellbeing of the industry by formulating and advocating for the implementation of policies and strategies that will promote and develop the metals and engineering industries; Influence the business environment positively for the SEIFSA membership and promote the unity of the SEIFSA affiliated Associations, Associations as well as encourage the formation of partnerships and joint ventures amongst SEIFSA members and with other business organisations and entities; Initiate and maintain dialogue and engagement processes with relevant government departments and ministries, including, trade and industry, finance, economic development, national treasury, employment and labour and higher education and training; Initiate and maintain relationships with other organized business formations that represent the manufacturing sector (MEMSA, SAMPEC, OEM Forum, Manufacturing Circle) and the clients of the metals and engineering sector (Minerals Council, NAAMSA, SAFCEC, Government) in fostering business, trade and other mutually beneficial relationships; Be a cohesive and united voice of employers in the metals and engineering industries and advance cooperation and collaboration with other progressive organisations; and Undertake any actions that are incidental or conducive to the attainment of the above objectives, individually or collectively.

SEIFSA on behalf of and with the support of the Associations must lobby, advocate, debate and/ or negotiate these key questions on behalf of the industry

STRATEGIC DIRECTION: SEIFSA is a national federation representing 18 independent employer Associations in the metals and engineering industries, with a combined membership of 1,179 companies employing around 150, 630 employees. For nearly 80 years, SEIFSA has provided active support for employer Associations and lobbied for policies that have improved the business environment in which its members operate.

• SEIFSA’S VISION To promote sustainable metals and engineering industries to ensure that they are strategically positioned for innovation and growth in the interests of a prospering South Africa.

• SEIFSA’S MISSION To be South Africa’s most respected advocate for the metals and engineering industries in order to create innovative businesses positioned for growth and working in partnership with all stakeholders in the interests of South Africa.

To foster mutually-beneficial relationships between employers and labour in the industries and to help members develop their human capital to realise their full potential.

• SEIFSA’S VALUES - Integrity

Stewardship

- Diversity

Passion

- Excellence

Innovation

SEIFSA NEWS

| JANUARY / FEBRUARY 2022

COVER STORY

STRATEGIC GOALS AND DESIRED IMPACTS: In fulfilment of the main objective and in realisation of its vision, the SEIFSA Board and Executive has set ten strategic goals, each aimed at achieving specified outcomes.

STRATEGIC GOAL:

INPUT MATERIAL, MOSTLY STEEL DESIRED IMPACT • • •

•

Steel forms the input raw material for most SEIFSA members. This material needs to be freely available at market related global prices. South Africa currently has a number of steel manufacturers. Mostly EAF but also significant integrated mills. These are world class facilities and for a viable local downstream steel industry their survival is important. Currently there is limited protection for the long products facility but more significant for the flat products.

•

• • •

In addition, certain restrictions exist on scrap exports resulting in a significant discount to the world price of scrap. Iron ore on the other hand is sold at international prices, as is coking coal. The production by the integrated mills is further hampered by a very inefficient national railway. These matters have to be realistically addressed by all the stakeholders and acceptable solutions derived.

2.nd STRATEGIC GOALS SKILLS DEVELOPMENT AND HUMAN CAPITAL DESIRED IMPACT • •

•

The industry is not seen to be an attractive place to build a career. Advocate and lobby for an industry that young people want to join, with clear career prospects, security of employment and an emphasis on developing technical and entrepreneurial skills. Focus on stakeholder relationships with partners e.g. DHET, TVETS, and SETAS to address critical skills shortages and the demand and supply of skilled labour. South Africa’s education system needs to produce a better educational outcome as the lack of skills is

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becoming more and more apparent and is critical for the well-being of the industry

3rd.

STRATEGIC GOAL

BANKABILITY AND TRANSFORMATION OF THE INDUSTRY DESIRED IMPACT •

•

• •

•

From an investment point of view the industry is not seem to be attractive. Both shareholder and bank financing is very restrictive. The ongoing narrative is that few companies in the industry are sound investments and most are high risk. Consequently bank funding and credit insurance is expensive and only available on restrictive terms. Advocate and lobby for an attractive investment environment which will improve investor confidence, policy certainty and easier access to funding. Lobby the Security Cluster in Government to tackle lawlessness, which will contribute to the revitalization of the sector.

4.th

•

Lobby government to unlock infrastructure development projects that will lead to demand, which will contribute to growth and transformation. These endeavors must be aimed at targeting the elimination of poverty, addressing the inequality gap and ensuring that many more South Africans are employed or included in economic activity. (Note this may need approval by competition commission)

STRATEGIC GOAL

INDUSTRY REVIVAL AND INCLUSIVENESS DESIRED IMPACT • •

•

Lobby with labour on a social and employment compact aimed at industry revival strategies. This compact amongst others, must include a plan on achieving extension of collective agreements to all employers and employees. Advocate to government that the awarding of contracts should be only to employers who are members of an employer organisation who are signatories to a collective agreement. Carefully consider what we understand by, and what we ideally seek from, the concept of collective bargaining. A successful system will be one which continues to address problems of minimum standards, inequality and poverty, while also, critically, ensuring the continued survival and growth of businesses and stability in the sector.

SEIFSA NEWS

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COVER STORY

STRATEGIC GOAL

ELECTRICITY/ ENERGY DESIRED IMPACT •

•

Lobby with stakeholders for security of supply, pricing and the role of municipalities in ensuring stable and cost effective electricity supply. Advocate for the expansion of use of own electricity supply and/or alternative energy sources (IPP’s).

STRATEGIC GOAL

EMPOWERMENT DESIRED IMPACT •

•

Define empowerment from the perspective of the M&E Sector that is real, broad-based, sustainable and leads to meaningful transformation. Interrogate the sectors view on compliance requirements and sectorial targets.

STRATEGIC GOAL

IMPORTS, EXPORTS AND INTERNATIONAL TRADE DESIRED IMPACT • •

Identify and encourage opportunities for the sector to export to and import from Africa (e.g. AfCFTA). Identify the various tariff regimes, trade agreements and working with the DTIC to gain a better understanding to communicate to the sector.

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STRATEGIC GOAL

ENGAGEMENT WITH THE ECONOMIC CLUSTER DESIRED IMPACT •

Engage with the Economic Cluster of Government on identified strategic focus areas, to leverage opportunities that will benefit the sector and the membership.

STRATEGIC GOAL

BRICS DESIRED IMPACT •

•

Play a lobbying and advocacy role on the Manufacturing Stream of the BRICS configuration, with the purpose of identifying and communicating business and funding opportunities for the sector. Continue to provide a Secretariat role. Lobby for a seat on the Manufacturing Stream.

10 .

STRATEGIC GOAL

STEEL MASTER PLAN (SMP) DESIRED IMPACT •

Lobby, advocate and formulate an industry focus on the SMP deliverables that unlock opportunities and wins for the sector, rather than allowing the SMP agenda to be driven by the DTIC.

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INDUSTRY NEWS

Exemptions from vaccine requirements in the workplace on the basis of religion, opinion or belief By Talita Laubscher and Alexia Kaplan, South African Employment and Benefit Practice

he Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, which was amended by the Minister of Employment and Labour with effect from 11 June 2021, entitles employers to implement a mandatory vaccination policy for certain categories of employees. However, employers will need to tread carefully when shouldering their responsibilities of maintaining a safe and healthy working environment while still ensuring that they respect the rights of employees who raise concerns around being vaccinated. Legal precedents: Is an employer legally obliged to reasonably accommodate those employees who refuse to be vaccinated? An employer’s right to implement a mandatory vaccination policy is not absolute. As such, employers need to be cautious if they are to avoid claims of unfair discrimination or unfair dismissal, or reputational damage. Employers who decide to implement mandatory vaccination policies must do so if it is necessary to ensure the health and safety of their employees and people with whom they interact. Accordingly, the employer is required to conduct a risk assessment and identify those categories of employees who are regarded as vulnerable (i.e. those over 60 years old and those with underlying comorbidities) and those who, through their work, are at a higher risk of transmission of the virus. This might be the case with front-line staff members who interact

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with members of the public, or those who have close contact with fellow workers. An employer will then have a further legal obligation to reasonably accommodate employees refusing to be vaccinated on medical or constitutional grounds. The constitutional rights that come into play are the right to bodily integrity and the right to religion, conscience or belief. This too is not an absolute obligation and would not apply where the effort and cost involved in accommodating the employees results in unjustifiable hardship. Where an employee objects to the vaccination requirement on religious grounds, employers must take note of the principles that have been developed by our courts when it comes to alleged unfair discrimination on the basis of religious beliefs. There are two seminal Constitutional Court cases. The first is MEC for Education: KwaZulu-Natal and Others v Pillay 2008 (2) BCLR 99 (CC) where the Constitutional Court held that in order to determine if a practice or belief qualifies as religious, a court should ask only whether the claimant professes a sincere belief. Further, in Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) the Court confirmed that it should not be concerned with questions of whether, as a matter of religious doctrine, a particular practice is central to the religion. The question is how central the belief is to the individual’s religious identity. These principles were applied in the employment context in the case of TDF Network Africa (Pty) Ltd v Deidre Beverly Faris [2018] JOL 40638 (LAC). The Labour Appeal Court reiterated that even where individuals

who belong to a particular religion are not obliged to observe a certain practice, they would still be protected where they feel that the particular practice is central to their religious identity. The Court explained that in this assessment evidence of the objective centrality of the practice to the religious community at large would be relevant, but only in so far as it helps answer the primary enquiry, namely whether the employee regards the particular practice as central to her/his religious identity.

A ROADMAP FOR THE WAY FORWARD: WHAT MUST AN EMPLOYER CONSIDER? In assessing a request for a religious exemption, an employer can consider a range of factors, including evidence that speaks to whether the employee is part of a recognised religious group; the objective centrality of the practice to the religious community in question; and, importantly, whether the employee regards the practice as central to her/his religious identity. In this regard, the employer can require proof of past conduct in support of the employee’s religious practice. Where an employee’s prior conduct contradicts the request for accommodation this too would be relevant to consider. For example, if the employee previously had a different vaccination (for example, a yellow fever vaccine for travelling) and now refuses the Covid-19 vaccination because of an alleged religious objection, then it would be reasonable to conclude that the belief is not sincerely held. Where an employer determines that a religious belief sincerely held by the employee prevents her/him from being vaccinated, the employer should take steps to reasonably accommodate the employee, unless this would result in unjustifiable hardship. Examples of potential ways to accommodate an employee that an employer can consider are: • • • •

•

permitting the employee to work offsite or at home; permitting the employee to work in isolation within the workplace, such as in their own separate offices; requiring the employee to work outside of ordinary hours; in instances of limited contact with others in the workplace, requiring that the employee wears a N95 mask; or moving the employee into a position that does not require her/him to be vaccinated (such as a position

that does not require face-to-face contact with coworkers or members of the public).

However, the employer need not accommodate the employee where this would result in unjustifiable hardship or insurmountable operational difficulty or expense for the business. In this case, an employer would probably not be required to create a new job to accommodate the employee.

UNCHARTED TERRITORY AHEAD While the position as it relates to exemptions on the basis of religious grounds is reasonably clear, the position regarding the right to belief and opinion may be more difficult to assess. Here, no definitive guidance exists from our courts on how these rights would be protected. In the recent case of Cape Peninsula University of Technology v Mkhabela (2021) 42 ILJ 2384 (LAC) the Labour Appeal Court held that the combination of the rights of belief, opinion and religion in one section of the Constitution appears to signify protection beyond purely religious views. The Constitution accordingly extends protection beyond the right to belief in a supreme being, and a person’s agnostic or atheistic beliefs would therefore also qualify for protection. In principle, ‘belief’ would relate to something other than facts that can be disproved. What is likely to be protected by section 15 of the Constitution are those deeply held convictions that are uninformed and unaffected by facts such as, for example, moral beliefs against consuming animal products. In the context of a refusal to be vaccinated, an ‘opinion’ or ‘belief’ that the vaccine is not effective might be regarded as a statement of fact rather than a belief, because such statements might be disproved by medical evidence. What is clear is that each case will need to be assessed based on its own facts and an employee’s reasoning for her/his views will need to be given careful consideration. For further information, please contact our South African Employment and Benefits Practice.

SEIFSA NEWS

| JANUARY / FEBRUARY 2022

ASSOCIATION NEWS

Is there a need for TES in SA’s construction industry?

t is without a doubt that many industries have taken a serious knock during the pandemic. Those involved in South Africa’s construction industry had their hands tied, especially at the onset of the pandemic when restrictions severely delayed and even terminated projects. When comparing GDP growth in the first quarter of 2021 to 2020’s fourth quarter, the construction industry landed at the bottom of the pile. Only beating the negatively contributing industries of electricity, gas & water as well as agriculture; the construction industry accounted for only a 0.8% contribution to South Africa’s GDP growth. This is no surprise when South African construction companies had no choice but to scale down on full-time employees in order to stay afloat. As government has changed their lockdown strategy and eased restrictions, a gap has formed in construction labour. The exciting news of developments in the industry, such as the planning of a new “smart” city located near Lanseria, Johannesburg, proves there is room for Temporary Employment Service (TES) providers to nurture the industry back to health. Permanent, full-time employees are often ill-suited to project-based industries. While there is investment and stimulation in the construction industry, the labour

force needs to expand fast while companies try to shield against the uncertainty of the pandemic and possible project disruptions or terminations. Therefore, the approach to employment needs to be carefully honed for optimal results. Time is money, especially when construction costs rack up daily with equipment and machine hiring. TES providers can support the construction industry by offering flexible employment solutions to get projects up and running quickly when time is of the essence. However, TES providers are only excellently positioned to supply blue- and white-collar workers efficiently to construction projects when they act within compliance. The Temporary Employment Services Division (TESD) was established exactly for this purpose, to ensure good practice and compliance with SA labour regulations. While having members in various sectors, the TESD has a close connection to the construction industry, affiliated with the Constructional Engineering Association (CEA(SA). When construction companies chose TESD members for TES, they can be assured that they are putting their trust in a division who knows their industry and making use of TES providers who are invested in their growth.

LATE MR. DAVID ALDRIDGE

t is with the sadness to inform you that our Mr. David Aldridge, (Managing Director) passed away on Thursday, 20 January 2022.

He passed away very peacefully and with great dignity, just as he lived his life. Dave’s valiant fight with cancer is now over, and has earned his peace. Professionalism, honesty, integrity, commitment, enthusiasm and passion – to name a few, Dave had all of these qualities in abundance – but above all, he was truly a really nice guy! We enjoyed and loved working

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with Dave as much as, we know, he loved working with us. From all perspectives of life at FEW, not having Dave around anymore leaves a gaping hole in our business and as importantly, in our lives. On behalf of FEW Management and staff we wish to convey our sincere condolences to Dave’s wife Paddy, his family and friends.

ACCREDITED

TEMPORARY EMPLOYMENT SERVICE PROVIDERS

Accredited Temporary Employment Service Providers as at 20 January 2022

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Adcorp Blu a division of Adcorp Staffing Solutions (Pty) Ltd Adcorp BLU a division of Adcorp Workforce Solutions (Pty) Ltd AMT Africa Recruitment AMT Placement Services Bathusi Staffing Services (Pty) Ltd CAP Personnel Placements (Pty) Ltd CDR Contracts (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 Gee 2 Kay (Pty) Ltd Global Isizwe Placements (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 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

SEIFSA NEWS

| JANUARY / FEBRUARY 2022

ASSOCIATION NEWS

Eaton appoints Godfrey Marema as South African MD Eaton South Africa MD Godfrey Marema

Godfrey is an executive committee member of the EEAIA, an association Federated to SEIFSA

ower equipment and management company Eaton has appointed Godfrey Marema as plant manager and MD for South Africa.

He will be responsible for managing and working with the team to meet and exceed operational results to grow the business, coordinate local leadership efforts and drive stakeholder engagement; improve profitability, mainly in sub-Saharan Africa; and ensure Eaton meets all legislative compliance. “I’ve been working with the Eaton team over the past month and look forward to helping drive the company’s growth on the African continent. Eaton is known for its culture of ethics, transparency and passion for inclusion and diversity, which is a cornerstone to doing business locally. I’m excited to work with such passionate and dedicated individuals,” he says. Marema has more than 20 years’ experience in management, manufacturing, sales and marketing in the automotive, chemical and electronics industries. Prior to taking on this role, he held several key management positions including COO for a multinational electronics company Landis+Gyr, where

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he was tasked with leading a cross-disciplinary team and the company’s operations, while streamlining the supply chain model. A key achievement was working with the CEO and board of directors to draft and implement a company-wide business turnaround strategy using lean principles mainly in the factory shopfloor. Marema is a chemical engineer graduate from the University of Cape Town, and a Sainsbury scholar. He has a proven record in leading teams and ensuring that company targets are met, which will be an instrumental addition to the Eaton Africa team, Eaton says. “I am passionate about people development and creating a high-performance culture in teams that I work with. My knowledge on lean concepts and experience implementing and executing them will be beneficial towards our ‘simplify for growth’ strategy,” he adds. Marema also serves as metal and steel industries association Electrical Engineering and Allied Industries Association vice chairperson.

SEIFSA NEWS

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EMPLOYMENT LAW

What constitutes a “benefit” in terms of section 186(2) of the Labour Relations Act?

Section 186(2)(a) of the Labour Relations Act 66, 1995 (“the LRA”) provides, inter aliathat the unfair conduct of an employer relating to the demotion of an employee or relating to the provision of a “benefit” to an employee constitutes an unfair labour practice.

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hat constitutes a benefit for this provision has been considered by numerous arbitration awards and court decisions, often in contradictory terms. In HOSPERSA & another v Northern Cape Provincial Administration, the Labour Appeal Court (“LAC”) adopted a narrow approach as to what constituted a benefit – it had to be something that an employee is entitled to in terms of a contract of employment or collective agreement, or entitled to in terms of a statute. In effect, the LAC sought to maintain the distinction between “disputes over rights” and a “disputes of interest”. The former is capable of adjudication or arbitration, the latter being resolved through collective bargaining.

In the LAC, the employer argued, inter alia, that an unfair labour practice could only be claimed if a “prior right” had been infringed In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (“Appollo Tyres”) the LAC adopted a far wider interpretation. It rejected the view that a benefit was limited to contractual or statutory entitlement in the following terms – “In my view, the better approach would be to interpret the term ‘benefit’ to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer’s discretion. In my judgment ‘benefit’ in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer’s discretion.” In its recent decision in of Department of Defence v Ruth Farre, the LAC referred with approval to Apollo Tyres in the situation where the employee claimed that the employer had committed an unfair labour practice by demoting her. In this matter the employee concerned, Ms. Ruth Farre had her job reclassified on the strength of the argument that her job was one of a scientific or technical nature, rather than one of an administrative nature. This meant a salary increase. However, at a later date, the decision to reclassify her job as one of a technical nature was rescinded and

the original classification of the job as being of an administrative nature was reinstated. To add insult to injury, she was required to repay the salary that she had allegedly been overpaid during the period that her job had been classified as being of a scientific or technical nature. She then referred an unfair labour practice dispute to the relevant bargaining council arguing that she had been unfairly demoted. The bargaining council found that the employer had committed an unfair labour practice and ordered the employer to restore Ms Farre’s position retrospectively. The employer was unsuccessful in its application to the Labour Court to have the award reviewed and set aside, but was granted leave to appeal to the LAC.

THE LABOUR APPEAL COURT In the LAC, the employer argued, inter alia, that an unfair labour practice could only be claimed if a “prior right” had been infringed – this echoing the approach adopted in the HOSPERSA decision. The LAC, regarding Apollo Tyres decision, rejected this argument. It stated that – “[24] … That she was then ‘transferred’ back to her previous post with the concomitant reduction of salary and obligation to repay ZAR178 88.98 constituted the kind of practice that falls within the scope of principle of an unfair labour practice which does not depend on a priori right as opposed to the assessment of the conduct of the appellant causing significant unfairness to a dedicated employee”.

COMMENT The Farre decision is authority for the view that the approach adopted in Appollo Tyres also applies in the case of demotion disputes. An employee need not show an entitlement that arises ex contractu or ex lege to be retained in a post.

Reviewed by Peter le Roux | Employment | Executive Consultant Themba Maduna Employment | Candidate Legal Practitioner

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EMPLOYMENT LAW

Interfering In Domestic Employment Matters By The EFF : The Labour Court Responds By Rod Harper: Partner and Head: Employment Law, Benefits, Industrial Relations & Discrimination, CHM Legal

INTRODUCTION

employment matters and the employer should decline to both discuss the issue with the political party and should not give it access to its premises.

s an employer could you imagine a scenario where, following a decision to dismiss an employee for serious misconduct, a political party such as the Republican or Democratic Parties of the USA or the Conservative or Labour parties of the UK, on behalf of the employee, contacts the employer and demands that it be given an audience by the employer to discuss the dismissal and simply ignores the dispute resolution processes set out in the Labour Relations Act (“the LRA”). You would probably answer that such a demand would be impossible, ludicrous, inappropriate, in breach of the LRA and so on. You would say that it is not the role of a political party to interfere in domestic

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In South Africa some employees have complained to political parties about their problems at the workplace and about the poor quality of service provided by certain Unions. The Economic Freedom Fighters (“the EFF”) in response to this perceived vacuum at the workplace and because it does not have a significant relationship with a Union saw an opportunity and on occasions has elected to take over Union functions. The EFF accordingly set up a labour desk and sought to engage with employers. As a consequence of there being fundamental flaws in the Labour Relations Act,

employers have had to deal with majority and minority Unions, challenges by and between competing Unions, generally a proliferation of Unions and now a political party. It appears that very little attention was given to the provisions of the Labour Relations Act by the EFF in respect of its participation at the workplace. It therefore became inevitable that an employer would respond to the EFF’s efforts to enter the workplace by referring complaints to the Labour Court.

CASE ON POINT In Brightstone Trading 3 CC t/a Gordon Road Spar v Economic Freedom Fighters and Others ILJ (2021) 42 page 1953 in summary the facts were as follows:An aggrieved employee of the Spar sought the assistance of the EFF; The local regional secretary of the EFF addressed a letter to the Company setting out several demands relating to working conditions; The EFF requested a meeting with management and arrogantly recorded that it would not accept any objection on the basis that it should not represent its members and the workers; Members of the EFF then entered the premises and engaged in intimidation which included threatening staff and customers and barricading the store; On a second occasion the EFF engaged in a violent protest. The Spar approached the Labour Court for an interdict prohibiting violent and unlawful conduct; On two occasions the customers fled the store and on the second occasion the store closed for the safety of the public and the employees of the Spar; Evidence was given that an official of the EFF indicated that its members would burn down the Spar; At the hearing the EFF attempted to deny responsibility on the basis that it had not authorized the protestors to act on its behalf; The Spar relied on the concept of ostensible authority (not direct authority) to prove its case and the Labour Court found that it had proven its case;

• •

•

the EFF had to hold its members accountable when the members acted in breach of the EFF constitution; The Company was entitled to expect the EFF to not become involved in employment matters and that its employees should comply with the provisions of the LRA; The EFF was interdicted from carrying out the unlawful action and costs were awarded against the EFF.

This judgment of the Labour Court accords with the earlier judgments in Calgan Lounge (Pty) Ltd v NUFAWUSA & Others (2019) 40 ILJ 342 (LC) and Langplaas Boerdery CC & Others v Matshini & Others (2021) 42 ILJ 1210 (LC). In those judgments, the Labour Court held explicitly that the EFF (or any other political party) had no business engaging in workplace issues.

CONCLUSION Employers should not engage with political parties on domestic industrial relations issues. Employers should refer them to the LRA which indicates that registered Unions should deal with industrial relations issues. Employees should be advised that political parties are not entitled to assume the functions of Unions. Where a political party attempts to “bully” an employer in relation to dealing with it, you should consult us in order to obtain advice. Often a strong letter sent to the political party solves the problem. It is to be hoped that the EFF now accepts that it should not become involved in domestic industrial relations matters.

ESSENTIAL SERVICE APPLICATIONS Clients are reminded that operations or part of those operations may constitute essential, minimum or maintenance services in terms of sections 71, 72 and 75 of the LRA. CHM is currently acting for clients who wish their operations to be so designated. An advantage is that strikes are replaced by arbitrations. Please contact us should you wish to discuss this option.

The Labour Court found that:-

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| JANUARY / FEBRUARY 2022

EMPLOYMENT LAW

What is required of an employee to prove an equal pay for equal work claim? In South Africa, employers are statutorily prohibited from unfairly discriminating against employees. In a recent Labour Appeal Court (“LAC”) decision, Mdunjeni-Ncula v MEC, Department of Health and Another, the application of the so-called equal pay provision was considered in some detail. LEGAL FRAMEWORK The relevant statutory provisions prohibiting unfair discrimination are encapsulated in section 6(1) and section 6(4) of the Employment Equity Act, 1998 (“EEA”). Section 6(1) of the EEA provides the following: “No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or any other arbitrary ground.” The phrase “any employment policy or practice” is widely defined and encompasses a wide range of employer practices that could be alleged to constitute unfair discrimination. Section 6(4) of the EEA, the so-called equal pay provision, is narrower in scope. It prohibits discrimination in respect of “a difference in terms and conditions of employment” only. It reads as follows -

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“A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in sub-section 1, is unfair discrimination.” This section requires a comparator. An employee must identify a person who is employed by the same employer, who is doing the same or similar work, or work of equal value, and who enjoys more favourable terms and conditions of employment. But even if a suitable comparator is found, the difference in terms and conditions of employment may not be based on a discriminatory ground or may be justified.

THE FACTS In Mdunjeni-Ncula, the Department of Health, Eastern Cape (“the Department”) advertised a position of Senior Legal Administrative Officer at a salary range between ZAR317 241.00 and ZAR771 078.00 per annum. The applicant employee applied for this position and was shortlisted and subsequently interviewed. She was offered the position at a salary of ZAR340 716 per annum. She accepted the offer on condition that she

would be remunerated at an amount of ZAR658 998.50 per annum. Her counter-offer was not accepted by the Department but, on 1 December 2014, she nevertheless reported for duty. However, she continued to request a review of her salary. Following an attempt to resolve the issue internally, the Department offered her a revised salary of ZAR361 623.00 per annum. She claimed that the payment of this salary constituted unfair discrimination on the grounds of gender. In support of her allegation, she referred to three comparators, who were all males. In the first instance, she cited an offer of employment at a salary of ZAR532 278.00 made to a Mr Ganyaza. The employee contended that she and Mr Ganyaza both met the minimum requirements relevant for the post and the only thing that separated the two of them was their gender difference. Significantly, however, Mr Ganyaza declined the offer of employment. Secondly, the employee referred to an offer of employment made to Mr Manxiwa in the amount of ZAR340 716.00. Mr Manxiwa was not happy with the offer and requested an increase in remuneration. As a result, Mr Manxiwa was provided with a revised offer of ZAR610 716.00 per annum. The third comparator was a certain Mr Ngozi who was the employee’s subordinate in the workplace but who received a higher salary than the employee. Once again, the allegation was made that the difference in remuneration was based on gender. It appeared, however, that Mr Ngozi had been in the employ of the State from 1983 and had been a legal administrative officer since 2003. According to the Department, it was his length of service that resulted in him earning a higher salary. The LAC held that the facts did not show that any of the three comparators mentioned by the employee justified the conclusion that the salary differentiation was based on a prohibited ground of discrimination. In the first case, Mr Ganyaza was never employed by the Department. He was therefore not a suitable comparator. In the other two cases, the LAC appears to have accepted that Mr Manxiwa and Mr Ngozi were valid comparators, but nevertheless still found that there had been no unfair discrimination. In the case of Mr Manxiwa, the offer made was “unlawful” in the sense that it was higher than the salary prescribed for the post in terms of the employer’s policies. The LAC held that

it can hardly be argued that a revised salary offer, which was unlawful, can be used as a basis to ground a case of discrimination of the basis gender. In the case of Mr Ngozi, the LAC found that the difference in salary was justified on the basis of his length of service. This was manifestly a rational ground for the difference in remuneration. The LAC summarised its findings as follows: “In summary, the appellant’s case was based on three alleged comparators which I have analysed in this judgment. None of these cases provides the requisite evidence to show that any differentiation in salary between the appellant and any of the three cases was based on discrimination sourced on the ground of gender or sex. In one case an individual had not been employed by the Department. In another, the claim of differentiation was based on an unlawful act and in the third, the differentiation was based on length of service.”

COMMENT This LAC decision is uncontroversial but nevertheless of some interest. Section 6(1) of the EEA prohibits discrimination on a wide range of grounds including any “arbitrary ground”. Despite the fact that the employee’s case was not based on an allegation that she was discriminated against on an arbitrary ground, the Court deemed it necessary to consider what constituted an arbitrary ground. This question has been the subject of some controversy as a wide interpretation of an arbitrary ground would extend the scope of the prohibition against unfair discrimination. In Naidoo & Others v Parliament of the Republic of SA, the LAC limited the scope of this ground by finding that an arbitrary ground is one that impairs an employee’s human dignity or has an adverse effect on an employee in a comparable or similar manner. In this decision, a differently constituted Court cast doubt on this approach but instead found that it was not necessary to decide this particular question in the present case. It seems that at least some judges of the LAC will be prepared to reconsider the finding in the Naidoo decision. Reviewed by Peter le Roux, an Executive Consultant in ENSafrica’s Employment department.

Siphile Hlwatika Employment | Associate shlwatika@ensafrica.com

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| JANUARY / FEBRUARY 2022

EMPLOYMENT LAW

Zero Tolerance Disciplinary Offences The application of zero tolerance policies has become something that employers, particularly in work environments that require the utmost safety compliance, use to ensure that safety standards are adhered to. In its recent decision in Air Products South Africa (Pty) Ltd v Matee and others the Labour Court had to answer the question whether an employee’s failure to adhere to an employer’s zero tolerance policy rendered the employee’s dismissal substantively fair.

THE FACTS

n this case, the employer, Air Products South Africa, sought to review and set aside an arbitration award in which the commissioner had found the dismissal of the employee substantively unfair. Air Products is in the business of manufacturing and distributing substances including, oxygen, nitrogen, hydrogen and carbon dioxide. These gasses are manufactured and stored in highly pressurised storage units at Air Products facilities. Due to the highly hazardous environment for the employees, contractors and the surrounding community, Air Products adopts strict protocols, policies and procedures including a zero tolerance approach to alcohol. In terms of the policy, employees can take a voluntary breathalyser test if they believe that they could be under the influence of alcohol. Should a test be positive, the employee can elect to return home, in which case the employee will be charged with absenteeism. In circumstances where the employee elects not to take the voluntary test, and enters the employer’s premises, the employee could be subjected to a test by a security guard. If an employee tests positive, the employee will be required to take a second test 20 minutes after the first test. Should the second test also return positive, the employee will be

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sent to a medical facility where a blood sample will be drawn for testing. If the blood test shows that the employee has alcohol in his blood the employee could be subjected to a disciplinary hearing. The employee in this matter agreed to take a breathalyser test when he reported for work at the Air Products’ facility gate at 6:50am. The result indicated that there was alcohol in his bloodstream. This was confirmed by a second test conducted approximately 20 minutes later. He then signed a consent form to have a health practitioner conduct a blood test at a laboratory, the results of which indicated that the employee, had a blood alcohol level of 0.03g/dl. The employee was suspended and a disciplinary hearing was convened. He pleaded guilty to the charges levelled against him and was dismissed. Aggrieved by his dismissal the employee referred a dispute to the relevant bargaining council to challenge the substantive fairness of his dismissal.

WAS THE DISMISSAL FAIR? At the arbitration the employee stated that the positive test for alcohol was due to the fact that he had consumed alcohol the previous day and that

the sanction of dismissal was too harsh. Air Products justified the dismissal with reference to its zero tolerance policy. The arbitrator found the dismissal to be unfair on the basis that Air Products had not shown that the employee’s use of alcohol had resulted in the impairment of the employee’s faculties to such an extent that he could not perform his duties.

LABOUR COURT’S FINDINGS Air Products applied to the Labour Court to have the award reviewed and set aside. It argued that the award was reviewable on the basis that the arbitrator had misconstrued the nature of the enquiry he was supposed undertake. The question the arbitrator was called upon to assess was whether Air Products’ circumstances necessitated the adoption of a zero-tolerance policy and whether the dismissal was appropriate and proportional to the offence; not whether the employee’s ability to work had been impaired. The Court accepted Air Product’s arguments and set aside the award. Typically, if the Court sets an award aside, it will refer the matter back to the CCMA or the relevant bargaining council so that the arbitration can be conducted again. However, in this case the Court was prepared to consider the merits of the case itself. It upheld the validity of the zero tolerance policy. It found that the zero-tolerance policy was justifiable in the light of Air Products operational requirements and obligatory in terms of the Employment Equity Act as well as the Occupational Health and Safety Act. The employee did not lead evidence to contradict Air Products’ evidence that its workplace was dangerous and that the rule was justifiable. The policy was reasonable when the employee’s roles and responsibilities were taken into account and considering that the employee was working on a dangerous site. The Labour Court also referred to its decisions in Superstone Mining (Pty) Ltd v CCMA & others, and Assmang Ltd v CCMA & 2 others where the court accepted that health and safety considerations could justify a zero tolerance policy.

ZERO TOLERANCE POLICIES SHOULD BE REASONABLE

prove that the dismissal was appropriate and proportional to the offence. The justification for such a policy will usually be the employer’s operational requirements. It is also evident from the decision in Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others, to which the Court referred to with approval, that the Labour Court will scrutinise such a policy to see that it is justified. This is evident from the following excerpt from the decision – “[17] It is also necessary to make some further remarks as regards dismissal for a first offence i.e. a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach. [18] But the law does not allow an employer to adopt a zero tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners. A zero tolerance policy would be appropriate where, for example, the stock is gold but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin”.

Reviewed by Peter le Roux | Employment | Executive Consultant Jayson Kent Employment | Senior Associate jkent@ENSafrica.com +27 76 731 8900 Bonolo Mafa Employment | Associate bmafa@ENSafrica.com

From the above it is evident that employers may be able to justify the implementation of zero tolerance policies, provided that the policy is reasonable and justifiable in its application to the circumstances of the employer’s operations. The employer will also have to

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EMPLOYMENT LAW

Can employers require unvaccinated employees to take PCR COVID-19 tests regularly. . . at their own cost? P

ractically, how far can employers with mandatory vaccination policies go to ensure healthy and safe workplaces and to accommodate unvaccinated employees? Can employers require their unvaccinated employees to produce polymerase chain reaction (“PCR”) negative test results periodically… at their own cost? We discuss the key considerations for employers grappling with this question. At face value, requiring unvaccinated employees to produce negative COVID-19 test results regularly, rather than being fully vaccinated, appears to be justifiable as a reasonable accommodation measure to minimise COVID-19 health and safety risks in the workplace. This would likely be contingent on several factors, including: • • •

the efficacy of the test – there are many different tests available the most effective being the PCR test; the period of validity of the test; and the frequency with which employees are required to produce the test results.

Accordingly, the frequency and efficacy of the chosen test must achieve the desired purpose of ensuring a healthy and safe work environment as far as reasonably practicable. If an employer only requires employees to test negative every two weeks, this is unlikely to ensure a healthy and safe environment where the employees are in-office every day and in circumstances where a negative test may only be valid for 72 hours. The question of whether the production of a negative test is one aspect that an employer must consider when implementing a testing regime. However, the question on most employers’ minds is who will pay? Seemingly a knee-jerk reaction is to require employees to pay where

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they have refused the vaccination. It may be more tricky than that, though. Of course, where unvaccinated employees are happy to pay for the tests themselves, there is unlikely to be an issue. It may also be possible for employers and unvaccinated employees to agree to a payment plan in terms of which the costs of the tests may be split between the parties. Where discord is created by requiring employees to pay for testing solely, employers should expect legal challenges. What is the position in the Consolidated Direction on Occupational Health and Safety in Certain Workplaces (“Consolidated “Consolidated Direction”)? Direction” The Consolidated Direction is not specific or prescriptive on the issue of payment for COVID-19 testing. In fact, it deals fairly cursorily with the topic. While this might indicate that an employer is free to approach accommodation as it deems fit, other considerations need to be taken into account, for example: •

The employer holds the primary obligation to provide a healthy and safe working environment; and • The Courts’ approach to an employer using cost considerations as a reason not to implement an accommodation. In respect of the latter, our Courts have set a high standard for employers when considering the accommodation of employees. For example, in Standard Bank of South Africa v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Court was called on to review a CCMA commissioner’s decision

that the dismissal of an employee, who was injured at work and could no longer perform her normal duties, on the grounds of incapacity was unfair. In attempts to accommodate the employee before she was dismissed, the Bank had sought medical advice, sent the employee home when she was in pain, kept the employee at the same salary level for more than two years, explored and offered the employee alternative jobs, and gave the employee four months’ sick leave to help her recover. However, the Labour Court held that although “the Bank was [seemingly] patient, tolerant and even charitable towards [the employee]”, these measures were insufficient because the Bank had not, among other things: • •

given the employee a headset to operate the telephones comfortably and a comfortable chair or adjusted the employee’s workstation.

The Labour Court found that the cost of implementing the type of reasonable accommodation that was being sought (being the headset, chair and adaptation of the workstation) would have been so “infinitesimal” as to not constitute undue hardship when juxtaposed with the resources at the command of the Bank. As a result, the Labour Court found that the incapacity dismissal was unfair and that the Bank had unfairly discriminated against the employee. Consequently, for an employer to escape paying for a reasonable accommodation (such as COVID-19 testing) it would need to show that by doing so, it would cause the employer undue or unjustifiable hardship. The Employment Equity Act, 1998 Code of Good Practice on the Employment of Persons with Disabilities

(“EEA Code”) defines “(u)njustifiable hardship” as “action that requires significant or considerable difficulty or expense...” The EEA Code also acknowledges that an accommodation that is an unjustifiable hardship for one employer at a specific time may not be so for another or for the same employer at a different time. This means that each employer will need to consider whether it can afford to implement COVID-19 testing. This will likely require an evaluation of the type of tests available, their costs, the number of employees to be accommodated and the frequency of the tests. If the cost of implementing COVID-19 tests is within an employer’s means, then they would likely be hard-pressed to justify requiring employees to pay for the test. If it is the case that it will cause the employer unjustifiable hardship, it might be justified in offering employee-funded testing to the employee as an alternative to dismissal (in circumstances where there are no other reasonable accommodations that can be made). Similarly, it might be justifiable that the costs are shared between the employer and employee. Ultimately, employers should guard against too robust of an approach when navigating legitimate objections to vaccinations as it might be seen as punitive. The legal framework relating to reasonable accommodation holds employers to a fairly high threshold which ordinarily requires the employers to foot the bill for any accommodation offered.

Lauren Salt Employment | Executive lsalt@ENSafrica.com - +27 84 509 6494 Jessie Gertzen Employment | Candidate Legal Practitioner jgertzen@ENSafrica.com

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| JANUARY / FEBRUARY 2022

EMPLOYMENT LAW

Dismissals and resignation should not be dressed up as voluntary retrenchment By Amanda Visser, Moneyweb

outh Africa is experiencing its biggest unemployment crisis in decades and retrenchments are bound to continue this year. The tax dispensation on ‘severance benefits’ is purposefully lenient to assist those affected – but tax experts warn that employers who use the beneficial tax treatment of a retrenchment lump sum as a carrot to get rid of unwanted employees who receive a golden handshake, resign or are dismissed are committing tax fraud.

A submission relating to the unfairness of the beneficial tax treatment in the case of a ‘voluntary retrenchment’ lump sum payment was met with surprise during a National Treasury workshop at the end of last year. The submission was raised during discussions on technical tax proposals for possible inclusion in Annexure C of the 2022 Budget Review in February.

A participant in the workshop remarked that the difference between voluntary and involuntary retrenchment is the difference between jumping from a sinking ship, or being pushed.

The tax treatment of a severance benefit is based on the retirement lump sum tax table, where the first R500 000 of the retrenchment lump sum is tax-free. The maximum amount of tax payable is 36% compared to the top marginal personal income tax rate of 45% in the case of a resignation or termination.

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The technical matters relate to current tax legislation that require correction. A participant in the workshop remarked that the difference between voluntary and involuntary retrenchment is the difference between jumping from a sinking ship, or being pushed.

“Nobody wakes up one morning and tells [their] employer [they] want to be retrenched,” he said. Aneria Bouwer, senior consultant at Bowmans, says the test from a tax perspective (to qualify for the beneficial severance tax rates) is whether a person’s position has become redundant. There is no mention in the tax or labour laws of voluntary or involuntary retrenchment. The retrenchment process in terms of the labour law is quite a formalistic process. In the first phase the employer may consult with individuals who are selected for potential retrenchment on ways to mitigate the adverse effects of the retrenchment. The consultation may include a ‘sweetener’ in the form of a bigger lump sum if the employee elects to leave voluntarily.

“Nobody wakes up one morning and tells [their] employer [they] want to be retrenched,” he said. In terms of the process the employer has to apply for a directive from the South African Revenue Service (Sars) to indicate that the lump sum payment on termination is a severance benefit. The Sars application form differentiates between voluntary or involuntary retrenchment, and that is where the confusion may come in, says Bouwer. Beatrie Gouws, head of strategic development and stakeholder management at the South African Institute of Taxation, says about five years ago some Sars officials started to adopt the approach that the first-phase retrenchments were voluntary, and therefore did not qualify for the severance benefit tax treatment. For a while the workers who left voluntarily were taxed on the normal income tax rates for individuals as opposed to the beneficial tax rates received by workers who were involuntarily retrenched.

There was a huge outcry and Sars changed its view that all workers who were affected by a general reduction in personnel should receive the same tax treatment on their severance payments. It was not dependent on the phase of the retrenchment process. Bouwer says the potential for abuse is wider in the case of voluntary terminations as the process is not as formalistic as with compulsory (involuntary) retrenchment. Often when a termination is negotiated with an employee there is a temptation to treat it as a retrenchment because it is seen as a “win-win situation”. The employee sees the lower tax cost and the employer sidesteps the formalistic termination of employment process. Bouwer says employers must be able to show that the voluntary retrenchment payment qualifies as a severance benefit by reason of redundancy. Where an employer and employee conclude a “mutual termination agreement” preceded by complaints regarding the employee’s performance or conduct it will not be considered a redundancy. Gouws reminds employers and employees that leave pay and pro-rata bonuses do not form part of a severance benefit tax calculation. They are subject to tax at normal rates applicable to individuals. Bouwer says the promise of the tax-free lump sum often appears to be a “quick fix” when a person stands to be retrenched, but: “It is important to realise that when you have used the [tax-free] benefit, it is no longer available at a later stage – including in retirement.” Employees who are retrenched for a second time must therefore consider what their first lump sum payment was. Only if it was less than R500 000 will it be taken into account in the severance pay tax calculation.

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INDUSTRIAL RELATIONS AND LEGAL SERVICES

Retrenchments, shorttime and lay-offs – some important considerations Fortunately we are experiencing a slight economic upswing, after constrictions as a result of various local and global lockdown regulations in 2020 and 2021, however, considering the economic and business challenges that companies have had to face, on the back of the resultant restricted global economic activity, companies may be dealing with the severe constraints that force them to consider mechanisms to attempt to rectify the situation.

any companies are having to adopt strategies to keep their companies viable, during difficult trading and economic times, and often companies are faced with little alternative but to implement strategies to reduce costs. Some of these strategies are not easy to implement and management only implements them as an option of last resort, and as an option to ensure the company survival.

The lessor used lay-off is easier to implement, and leads to the temporary unpaid suspension from work of employees from at least one week for up to 8 weeks. It is legally permissible to have more than one lay-off period, whether they run concurrently of not. Importantly this is not a termination but a unpaid suspension. There are no costs to implement the suspension, no severance pay and no payment made during the lay-off period.

The Main Agreement provides strategies which companies often consider during difficult times, these include:

Short-time is widely known and used as a means to avoid retrenchments and lay-offs, it is not complicated to implement and there are no costs associated to implement the short-time. The short-time allows the employer to reduce the days per week and/or the hours per day and employees are only paid for the hours that they work. In extreme situations of financial crises and where there is no work it is possible to reduce the working hours from 40 in a week to a minimum of 4 consecutive hours per week.

• • • • •

Retrenchment – Annexure A of the Main Agreement Lay-off, including job rotation – Annexure A of the Main Agreement Short-time – Section 7 of the Main Agreement Flexible working time arrangements – Section 4 of the Main Agreement Exemption from wage increases and the leave enhancement pay – Section 23 of the Main Agreement

It must be noted that all of these processes include a notification and consultation process. Retrenchments as you know is a permanent termination from the work place and it can prove to be a very costly exercise once all the severance payments have been made.

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Obviously it is important to be fully aware of the procedures to be followed to implement these strategies and to ensure that they are implemented fairly according to the requirements of the Main Agreement. Seifsa provides a consultation service on all of these, whether over the phone, email or at your company, whether representing the company during these consultations or simply guiding the company and giving advice. Seifsa also provides a half day training course on these matters, whether conducted in-house at your company or at one of our public courses.

THE DECISION TO RETRENCH Looking at the questions that are asked by employers and employees regarding retrenchments, there is at times a lack of understanding of the rights of employees in terms of section 189 / 189(a) of the Labour Relations Act, which the Main Agreement reflects in Annexure A. Some employers are under the impression that retrenching an employee is as simple as issuing a notice of termination of the employment relationship based on the operational requirements of the company. Another common mistake is to selectively nominate “problem” employees for retrenchment instead of using a fair selection criteria such as the LIFO (Last In First Out) combined with retaining essential skills, that are required to ensure the successful future operation of the company. However, it is best to be forewarned that such misunderstanding which could lead to the incorrect application of the acceptable processes, and could result in retrenched employees alleging unfair terminations and referring the dispute to the CCMA or to the labour court if more than one employee was retrenched. Compensation of up to 12 months of the employee’s normal remuneration may be awarded for not following a fair procedure and or retrenching for a reason that is not deemed fair, which could also lead to re-instatement, (procedural and substantive fairness).

THE CONSULTATION PROCESS The consultation process can at times be a long and complex one, and it is best to get assistance from someone who is skilled in these processes. The LRA places an obligation on employers to engage in a meaningful joint consensus-seeking process in an attempt to reach consensus on, inter alia, appropriate measures to avoid and/or minimise the number of dismissals. Implementation of s189 often results in changes in terms and conditions of employment. Such changes are justified if they are made in the course of a bona fide retrenchment exercise and as an alternative to retrenchment.

WHAT INFORMATION MUST BE DISCLOSED TO AFFECTED EMPLOYEES (SECTION 189(3))? The employer must issue a written notice inviting the other consulting party to consult with it and disclose in writing all relevant information, including, but not limited to• •

•

In order to ensure fairness towards both employer and employee, it is necessary to better understand section 189 of the Labour Relations Act.

•

WHEN MAY AN EMPLOYER RETRENCH EMPLOYEES?

• •

•

• Employers may dismiss employees based on their operational requirement as defined in section 213 of the Labour Relations Act. “Operational requirements” means requirements based on the economic, technological, structural or similar needs of an employer. It must be remembered that the onus will be on the employer to prove that a genuine operational requirement existed. The employer cannot merely claim that for instance the company was not making money and as such had to retrench employees; the employer will have to produce evidence of such a financial crisis.

• •

the reasons for the proposed dismissals; the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives; the number of employees likely to be affected and the job categories in which they are employed; the proposed method for selecting which employees to dismiss; the time when, or the period during which, the dismissals are likely to take effect; the severance pay proposed; any assistance that the employer proposes to offer to the employees likely to be dismissed; the possibility of the future re-employment of the employees who are dismissed; the number of employees employed by the employer; and the number of employees that the employer has dismissed for reasons based on its operation requirements in the preceding 12 months.

The employer must allow the other consulting party an opportunity during consultation to make representations about any matter dealt with above, as well as any other matter relating to the proposed dismissals/retrenchments. The employer must consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing. If any representation is made in writing, the employer must respond in writing.

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Of interest the Labour Appeal Court (LAC) went further to impose a duty on an employer to take all steps to avoid dismissals. Although the case concerned the redundancy of a position, the principles remain relevant. In Oosthuizen v Telkom SA Ltd (2007) 28 ILJ 2531 (LAC) the LAC found as follows at para 8: ‘In my view an employer has an obligation not to dismiss an employee for operational requirements if that employer has work which such employee can perform either without any additional training or with minimal training. This is because that is a measure that can be employed to avoid the dismissal and the employer has an obligation to take appropriate measures to avoid an employee’s dismissal for operational requirements. … In such a case the dismissal is a dismissal that could have been avoided. A dismissal that could have been avoided but was not avoided is a dismissal that is without a fair reason’ (my italics). The judgment above places a duty on an employer to implement alternatives which are likely to save jobs. Conversely, an employer that neglects or refuses to implement alternatives could be said to have acted unfairly.

WHEN SEVERANCE PAY IS NOT OBLIGATORY Of significant interest, the employer does not have to pay severance pay if an employee unreasonably refuses to accept an offer of employment with the current employer or another employer (sections 41(2), 41(4) of the Basic Conditions of Employment Act). This has also been confirmed in a ruling of the LAC in matter between Astrapak and CEPPWAWU. A further question, however, arises in regard to whether the alternative that will be implemented needs to be reasonable. Section 41(4) of the Basic Conditions of Employment Act 75 of 1997, as amended (the BCEA) relieves an employer of the duty to pay severance pay in circumstances where the employee who is dismissed for operational requirements ‘unreasonably refuses to accept the employer’s offer of alternative employment’. In Irvin and Johnson Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 935 (LAC) the LAC found that the purpose of this provision was to promote employment and to incentivise employers to take the necessary steps to provide alternative employment for all employees facing dismissal for operational requirements. While this provision clearly underscores the importance of job

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preservation, it is also important to point out that an employee’s refusal of an unreasonable offer of alternative employment would not absolve the employer from having to pay a severance package. The LC, as a court of fairness and equity, will inevitably inquire into the fairness and reasonableness of the employer’s chosen alternative as well as the final decision to implement the alternative unilaterally.

STAY IN TOUCH WITH YOUR EXPERTS Members should feel free to discuss any course of action with SEIFSA’s Industrial Relations and Legal Services Division staff members, who are available to provide advice or assistance at the consultative meetings to Management in this regard. They can be reached on (011) 298-9400. (To note that training is provided in these areas, whether in-house or on-line webinars.)

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Proposed Amendments to the Employment Equity Amendment Bill Critical for organisations are the amendments that were tabled and approved by Cabinet in February 2020 concerning the Employment Equity Act. In July 2020, the Minister of Employment and Labour published that the Bill would go to the National Assembly to start the Parliamentary process. The National Assembly then put the Bill out for the public to comment and the process is coming to finalisation.

WHAT DO THE AMENDMENTS PROPOSE? The most significant amendment to the proposed Employment Equity Act is section 15 which empowers the Minister of Employment and Labour to prescribe numerical targets for sectors at all occupational levels to ensure the equitable representation of suitably qualified people from designated groups. This is followed by section 42, which deals with the assessment of organisational compliance. Specifically, section 42 deals with if the employer is complying with numerical targets prescribed in that sector by the Minister. Finally, section 53(6) is a list of five criteria that an employer must meet to obtain a compliance certificate. Key to this is section 53, which has always been in the Employment Equity Act but has not been operational. It will be put into effect by these amendments. This will mean that State contracts may only be issued to employers who have been certified as being compliant with the obligations under the Employment Equity Act. One of these is the requirement to achieve the above numeral sector targets prescribed by the Minister.

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WHAT DOES NOT ATTAINING A COMPLIANCE CERTIFICATE MEAN?

THE FIVE COMPLIANCE CRITERIA IN SECTION 53 Interestingly if one looks at section 53 of the Bill, there are five criteria of compliance for a certificate of compliance: 1. The employer has complied with a numerical target set in section 15A that applies to that employer. 2. If an employer has not complied with any target set, the employer has raised a reasonable ground to justify its failure to comply as contemplated by section 42(4). 3. The employer has submitted a report in terms of section 21. 4. There has been no finding by the CCMA or a court within the previous one year/ twelve months that the employer breached the prohibition on unfair discrimination in chapter 2. 5. The CCMA has not issued an award against the employer in the previous one year/ twelve months for failing to pay the National Minimum Wage.

Not attaining a compliance certificate would mean that these companies would not be able to do business with the State. Currently, BBB-EE status is measured in terms of the Preferential Procurement Framework Act in relation to a 10% and 20% evaluation of the total score. This is dependent on the monetary amount of the tender. Should this amendment go through it will have far-reaching implications for those sectors that have not achieved these targets and are not getting a certificate. What is critical is that section 42 is not definitive enough and does not contain a clause that would recognise reasonable steps towards the employer achieving the applicable targets.

Of utmost importance is that employers should have proper compliance checklists to ensure that they are ready to provide reasonable justifiable grounds should they not achieve numerical targets. These checklist should stand up against potential litigation processes that are likely to be triggered by those not compliant with the sector targets. These amendments will have far reaching when they are passed into law and potentially some significant unintended outcomes.

By Jonathan Goldberg and Thembi Chagonda: Global Business Solutions

In terms of section 64, the draft regulations make provision for a designated employer who applies for a certificate of compliance - but has not achieved the applicable targets - to record justifiable reasons for not doing so. However, it is not good enough to have this in the regulations as it needs to be in the Act. In addition, it actively empowers the Minister to delegate his authority of compliance to inspectors. This could lead to far-reaching powers for inspectors. Jonathan Goldberg

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ECONOMIC AND COMMERCIAL SERVICES

Global resources and energy overview This articles was published in SAISI Steelmatter Newsletter, January 2022

Recent Chinese power shortages have been a dominant influence on global resource and energy commodity prices. As a major global metal refiner, the power shortages have seen Chinese (base and ferrous) metal output cut back.

hina’s property sector has slowed noticeably, cutting metal usage, but the Chinese authorities now appear to be taking steps to stabilise the sector.

from major steel producing nations, and problems with Mongolian supply, have seen Australian metallurgical coal prices reach record highs, with monthly export earnings now easily exceeding pre-Covid-19 levels.

There have been a few significant policy developments with the potential to have a noticeable impact on the global resources and energy sector.

The price for 62% Fe iron ore was $133.70 per tonne, delivered to the Chinese port, on 24 January 2022. The recent low was $79 per tonne in February 2020. The lowest point was $37 per tonne in December 2016, while the peak was about $233 per tonne in May 2021.

After policy action to bring down iron ore prices in the middle of 2021, in October China’s government instructed the nation’s coal miners to lift output and imposed a thermal coal price cap.

The US Congress passed a US$1.2 trillion infrastructure programme, which will have a stimulatory effect on US economic growth domestically and have flow-on effects offshore. The global economic recovery and constrained supply saw iron ore prices exceed US$230/tonne in the middle of 2021 but sharp reductions in Chinese steel production contributed to large price declines in the second half of 2021. The ongoing recovery in Brazilian supply is set to impact adversely on prices. Thermal coal prices surged in China in October 2021, as critical shortages emerged in many major consuming nations. Seaborne thermal coal prices rose to their highest level in more than a decade. High demand

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The world export price for hot-rolled coil realised at $800 per tonne on 26 January 2022, FOB the port of export. This is lower than the high of about $1 120 per tonne in July 2008 but higher than the low of $272 per tonne in February 2016. In comparison, the Chinese mills’ domestic spot hot-rolled coil price, ex-works excluding the 13% value added tax, on 25 January 2022 was $651 per tonne versus the recent low of $402 per tonne in April 2020; and the even lower $231 per tonne in December 2015. The Capesize daily round-trip rate from the Atlantic Basin to the Pacific was $4 200 on 20 January 2022. This price was far below the brief high of $41 636 in December 2013; yet, well above the low of $1 379 in February 2020. The Panamax daily round voyage TransAtlantic rate was $17 565 on 20 January 2022 versus the low of $1 390 in February 2016. The “spread” between the Capesize and Panamax rate was $17 565.

GLOBAL RESOURCES AND ENERGY OVERVIEW

With energy inventories lower than normal, the severity of the remainder of the Northern Hemisphere winter will have a critical influence on energy markets in the short term. The La Nina weather pattern will likely impact on the demand and supply of coal and other energy products. The risks to the elevated commodity prices are skewed to the downside. They include a much faster than expected decline in coal prices. There is also potential for a further rise in global inflation and a risk of higher interest rates in response.

Covid-19 vaccines to the world’s population, could also pose significant risks. Lower global steel production in recent months reflects a moderation of economic (and industrial output) growth rates to lower, longer-run trend levels, as well as production cuts and weakened steel demand in China. A slower pace for the global recovery from the second half of 2021 is likely to see more moderate growth in steel demand from 2022.

Uncertainties associated with new strains of the coronavirus, and the risk of delays in the rollout of

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ECONOMIC AND COMMERCIAL SERVICES

Steelmakingfacts

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INTERNATIONAL STEEL PRICES ACCORDING TO THE LONDON METAL EXCHANGE:

•

The cash settled futures on hotrolled coil, fob China, decreased by 2,8%in December 2 0 2 1 compared with November 2021

•

The cash settled futures on reinforcing bar decreased by 4,0%in December 2021 compared with November 2021

•

The cash settled futures for steel scrap decreased by 5,7% in December 2021 compared with November 2021.

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WORLD IRON PRICE According to the World Bank the cfr spot price on iron ore increased by 21,5% in December 2021 compared with November 2021. Metal prices have been supported throughout 2021 by supply curtailments due to energy shortages and shipping bottlenecks as well as strong demand. The exception is iron ore, where a rebound of exports from key producers and cuts of steel production by China pushed prices back to pre-pandemic levels. The impacts of the Omicron wave and the Evergrande crisis, however, pose significant downside price risks in the short term.

SOUTH AFRICAN STEEL PLANT PERFORMANCE AVERAGE CAPACITY UTILISATION According to a survey among SAISI members, the steel mills’ average capacity utilisation was above 80% in December 2021. This is a two percentage point higher than the previous month, notwithstanding the weaker steel demand. The low steel off-take from local mills might influence production utilisation, which may impact favourable steel availability in the months ahead.

delivering within two weeks of order placement. The same performance is expected to apply in January and February 2022. Almost all the production units are in production with limited maintenance shutdowns. SURVEY PERIOD: CURRENT AND FEBRUARY 2022

South African Steel Mill’s Average Capacity Utilisation (%)

AVERAGE ON-TIME DELIVERY PERFORMANCE All the steel mills are supplying within their stated delivery lead-times. The average on-time delivery performance remained unchanged at two to four weeks during December 2021, with some mills

The average On-Time-Delivery Performance of the South African Steel Mills >4 weeks

2>4 weeks

>2 weeks

on time

delivery performance

BASIC IRON AND STEEL PRODUCTS - VALUE OF SALES - STATS SA

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TRADE-PRIMARY STEEL PRODUCTS AND ARTICLES OF STEEL PRODUCTS PRIMARY STEEL PRODUCT TRADE IMPORTS:: IMPORTS South Africa’s primary steel product imports, including drawn wire and rails, according to data released by the South African Revenue Service, increased by 54,1% in the first 11 months of 2021 compared with the corresponding period in 2020. The local market imports more than 25% of all steel used in the country.

EXPORTS: The exports of primary steel products, according to SARS data, increased by 11,2% in the first 11 months of 2021 compared with the corresponding period in 2020.

ARTICLES OF STEEL TRADE IMPORTS: The imports of articles of steel, according to SARS data, increased by 35,9% in the first 11 months of 2021 compared with the corresponding period in 2020. Finished product imports are creating a flat steel demand for 2022Q1.

EXPORTS: The exports of articles of steel, according to SARS data, increased by 9,2% in the first 11 months of 2021 compared with the corresponding period in 2020.

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STEEL DEMAND DRIVERS ACCORDING TO STATS SA:

Manufacturing production increased by 7,0% in the period January to November 2021 compared with the same period in 2020.

The value of recorded buildings completed (at constant 2015 prices) increased by 15% in the period January to October 2021 compared with the same period in 2020.

Mining production increased by 13,0% in the period January to October 2021 c ompared with the same period in 2020.

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ECONOMIC AND COMMERCIAL SERVICES

Covid-19 complications give SA steel sector a shot in the arm Global demand and pricing drive sector’s recovery, with local infrastructure plans offering another major boost

he South African steel sector may not be shooting the lights out, but it is in its best position in at least a decade from a supply and potential demand perspective thanks to a confluence of global and local factors. Demand for steel around the world is steadily improving as markets recover from lockdown restrictions, and the supply chain disruptions which resulted in shortages of the metal have supported prices and production. SA’s planned multibillion-rand infrastructure rollout and other public projects have the potential to provide a significant boost to the industry’s fortunes in the next few years. Charles Dednam, secretary-general of the South African Iron and Steel Institute (SAISI), says he is optimistic about the prospects for the industry. “The steel industry is in a healthy and very good position, possibly the best it has been in for the last decade,” says Dednam, who has more than 40 years’ experience in the sector. Rewind a few years and the country’s steel producers were battling due to a struggling economy, with several well-known names such as Cisco Steel and Evraz Highveld Steel & Vanadium being forced into business rescue. Dednam says the picture has changed for the better with the pandemic and resultant shortages ultimately working in the market’s favour. He says the total crude steel production in SA is on average about 400,000 tons a month and is “more or less back at the levels the country was at before the Covid pandemic started”.

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“Steel availability in South Africa is probably the best we’ve had in a very long time, following the shortages that were created by Covid.” The lockdowns around the world created supply chain crunches as economies started reducing restrictions, resulting in a lot of pent-up demand for steel. “This helped production catch up and because of the shortage of steel due to supply chain constraints, import orders started increasing, albeit with a long lead time given this was a global issue.” Dednam says international steel pricing has contributed “quite a lot to the welfare of the steel mills in general”. “What helped them were the backlogs around the world which created a shortfall in supply and that also helped them to push up prices to some extent.” He says last year hot rolled steel coil prices rose to more than $1,000 (more than R15,000) a ton and though this had dropped back down to $800 to $900 expectations were they would again start moving upwards. Dednam says that as it now stands, SA has a total steel-making capability of about 8.5Mt a year, with the potential for this to increase to more than 9Mt. Demand for steel last year saw about 4.5Mt of this potential realised. Taking into account that about 25% of steel is imported into SA, local steel mills probably produced in the region of about 3.6Mt. He says demand is picking up. “We expect to see 5.2Mt realised this year and that is quite a nice number, so we will see better demand this year. It may not be spectacular but it is definitely better than last year.”

Rewind a few years and the country’s steel producers were battling due to a struggling economy, with several wellknown names such as Cisco Steel and Evraz Highveld Steel & Vanadium being forced into business rescue.

Other factors that should help fuel demand are in place. Investec economist Lara Hodes says global manufacturing remains robust, with the JPMorgan global PMI index in expansionary territory in December. This is “supportive of industrial metals” such as steel and iron. Dednam says that China cutting back on its total steel production as its construction boom softens is expected to offer further support to SA and other producers, whose mills could pick up the shortfall. Another key reason China is cutting production is global pressure to curb pollution as the steel sector produces 10%-20% of its carbon emissions, he says. Locally, Dednam says though not much is happening yet with the government’s planned new infrastructure projects, when they do get off the ground they have the potential to give the market a significant boost. And while the market waits for this, there are a “lot of projects in the housing market happening, a lot of projects in the light manufacturing areas”. “I see some of the infrastructure is being fixed and we have seen some road projects. Projects such as the Durban port expansion are also happening. There is still a lot more to do. I don’t see any fireworks going forward, but I see a steady pick-up in demand.” He says the renewable energy sector is also expected to be a source of development in the years ahead. Azar Jammine, chief economist and director at Econometrix, says that “with a couple of provisos” he agrees that the steel sector is in a much better position now than it has been for years and that the government’s infrastructure rollout, if it gathers momentum, could provide another big boost. “The first thing is that of course the iron and steel industry, from an export point of view, has benefited a

lot in the last year or two from the boom in commodity prices. We are in a far better situation from an export point of view than previously. Secondly, in a way one can argue that the worst is over and that things cannot possibly get any worse in South Africa in terms of demand for iron and steel than they have been in the last couple of years.” For Jammine, the “big issue” is the planned infrastructure rollout by government. “No question there is a big pipeline and there have been two announcements regarding infrastructure projects. The first was in October 2020 when President Cyril Ramaphosa publicised his economic recovery and reconstruction programme, which incorporated a programme of 51 infrastructure projects worth R340bn. The second was announced in the medium-term budget policy statement in November where it was suggested there was a further programme of 56 extra projects worth R559bn. “If you add the two together you are talking about infrastructure projects worth R900bn. That is going to be spread out over a number of years but that gives you the order of magnitude of what actually can be achieved if these projects that have been planned together with the private sector do materialise. The big proviso is, will they see the light of day?” Jammine says only a few of these projects have so far got going and he is concerned that with the ANC’s national elective conference taking place later this year there may be too much of a focus by the government on politics rather than getting the infrastructure projects off the ground.

Nick Wilson Senior Reporter Business Times

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Articles inside

Proposed Amendments to the Employment Equity Amendment Bill

Retrenchments, short-time and lay-offs – some important considerations

Global resources and energy overview

Dismissals and resignation should not be dressed up as voluntary retrenchment

Can employers require unvaccinated employees to take PCR COVID-19 tests regularly. . . at their own cost?

What constitutes a “benefit” in terms of section 186(2) of the Labour Relations Act?

Interfering In Domestic Employment Matters By The EFF: The Labour Court Responds

What is required of an employee to prove an equal pay for equal work claim?

Is there a need for TES in SA’s construction industry?

Eaton appoints Godfrey Marema as South African MD

Zero Tolerance Disciplinary Offences

Exemptions from vaccine requirements in the workplace on the basis of religion, opinion or belief

Accredited Temporary Employment Servive Providers