AUGUST 2022 SEIFSA representations relating to the increased instances of copper theft and related damages SEIFSA attends the ATVET Strategic industry partnerships summit 2022 More workplaces to face DG reviews to enforce compliance with EE Act TRANSFORMED SEIFSA TRAINING CENTRE IS OPEN AND READY TO PREPARE STUDENTS FOR 4IR Re-Launch of SEIFSA Training Centre
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Using dagga for anxiety resulted unemploymentin Accredited Temporary Employment Service Providers 31 Extension of a Bargaining Council agreement is a key ingredient in ensuring labour market peace, stability and certainty 09 Springboks and Foxes: Two of a kind 32 SEIFSA representations relating to the increased instances of copper theft and related damages 14 SEIFSA sees significant headwinds for the steel sec tor 19 Content How do we navigate the rising gig economy as tem porary employment services in SA? 21 The four-day working week and its impact on South African Labour Law: Are we ready? 24 Cultivating a culture of safety and prevention to curtail occupational injuries and diseases in the workplace 53 Implementing short-time for unforeseen contingencies including power outages - some important considerations 57 CCMA decides that an employer’s vaccination policy is unreasonable and unconstitutional 4665 64 CCMA decides that an employer’s vaccination pol icy is unreasonable and unconstitutional – should employers be concerned? Face masks in public are out - but what about the workplace? 39 Smoke at your own risk’ 41 05 36 Can employers sue for financial losses incurred during a protected strike? 50 SEIFSA attends the TVET Strategic Industry Partnerships Summit 2022 68 More workplaces to face DG reviews to enforce compliance with EE Act 73 4168602082WHATSAPP Understanding New Legislation on Workplace Harassment 44 Transformed SEIFSA Training Centre is open and ready to prepare students for 4IR
Opinions expressed in the articles do not necessarily reflect the views of SEIFSA. Similarly, advertising in this publication does not imply endorsement or approval of any such products or services by SEIFSA. While every attempt is made to ensure the accuracy and correctness of information contained in this publication, SEIFSA accepts no liability for any losses or damages sustained through the use thereof. Articles may only be reproduced with permission. Advertorials When a company logo appears with an article, it indicates that the article has been commissioned by the company. SEIFSA News is distributed free of charge to all companies in the metals and engineering industry. 6 issues published annually.
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Publisher Steel and Engineering Industries Federation of Southern Africa (SEIFSA) Advertising sales@seifsa.co.za or (011) 298-9400 Editor Nuraan Alli Tel: (011) 298 9436 or E-mail: nuraan@seifsa.co.za Design and layout Zandile Ngubeni Tel: (011) 298-9421 or E-mail: zandile@seifsa.co.za ISSN - 1560 - 9049
Forging a new togetherfoward,way
SEIFSA Training Centre
TRANSFORMED SEIFSA TRAINING CENTRE IS OPEN AND READY TO PREPARE STUDENTS FOR 4IR
Higher education and Training,
Mr Zukile Mosheshe Christopher Mvalo Deputy Director General of opened the
Zukile Mosheshe Christopher Mvalo, the Deputy Director-General: Skills Development Branch at the Department of Higher Education and Training, opened the upgraded SEIFSA Training Centre in Benoni, Johannesburg, on Friday, July 22. The renovated centre hopes to go some way to meeting President Cyril Ramaphosa’s call for the private sector to step up and help with job creation, which cannot happen without skills development. In his State of the Nation Address in February 2022, the president said: “The reality in our country – as in most other countries – is that the private sector creates the most Injobs.”his speech at the relaunch of the training centre, SIEFSA CEO Lucio Trentini spoke of the importance of addressing South Africa’s unemployment rate. “There is no doubt that South Africa desperately needs to utilise, absorb and develop local people in industry in order to achieve economic progress and in the process tackle the challenges of unemployment, inequality, poverty and now hunger in our country. In pursuit of this goal, SEIFSA realised a long time ago, that emphasis must be given to training in key technical trades for our youth and Theadults.“ribbon-cutting ceremony that Mvalo presided over opened the doors of the new centre, which, over the past year and a half, has been transformed from an old-style training centre focused mostly on apprenticeships to a state-of-theart Fourth Industrial Revolutionready training centre.
Lucio Trentini, SEIFSA CEO “Lucio Trentini spoke of the importance of addressing South Africa’s unemployment rate. “There is no doubt that South Africa desperately needs to utilise, absorb and develop local people in industry in order to achieve economic progress and in the process tackle the challenges of unemployment, inequality, poverty and now hunger in our country
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“The centre has been completely rebranded, with new buildings and new equipment, as the old centre was very outdated. We invited our clients and stakeholders to come and experience the new centre, which is nothing like the old one. It has all new offerings, and is physically completely different building,” says SEIFSA Training Centre director Preggy Chetty. The upgrade sets the centre apart from other South African training centres as it offers multidisciplinary expertise in engineering, high-end artisan and technical development, human capital, strategy, project and programme management, consulting, accreditation, and entrepreneurship and small business incubation capabilities.
THE CAPACITYCENTTRE
“We are always there in the background,” says Chetty. But this is not the only leap – the new, improved SEIFSA Training Centre also offers 4IR-related skills such as robotics and 3D printing to meet industry demands. These skills will be taught using e-learning, virtual reality and e-assessments. The SEIFSA Training Centre is run in partnership with Thuthukisa, a specialist advisory, consulting, projects management skills programmes delivery company. The centre has the capacity to train 250 people per day and offers apprenticeships in 10 trades. The training centre is a Department of Higher Education and NAMB-registered Trade Test centre and has trade-tested more than 400 candidates per year, since 2014.
7 Chetty is adamant that the skills training that the centre provides is meant as a steppingstone to finding work. “We can train people, but, if they cannot get jobs, then we need to do more,” he says.
250 PEOPLE per day 10 per>400TRADESCANDINDATEyearsince2014
“The big leap is around going into business incubation, though the core of the business remains apprenticeships,” says Chetty. The new innovation hub and business incubation facilities will take newly qualified welders and boiler makers, for example, through the process of setting up their own small businesses with the support of the SEIFSA Training Centre, along with access to its facilities and help with securing contracts.
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The starting point in responding to these criticisms is to acknowledge that the extension of a bargaining council’s collective agreement is not unconstitutional. This view was upheld by Judge John Murphy on behalf of a full bench of the North Gauteng (Pretoria) High Court in the 2016 Free Market Foundation (FMF) v Minister of Labour & Others Judgment.
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A lot has been written about the extension of collective agreements and particularly those covering terms and condition of employment in the metals and engineering industries.
The argument that collective agreements adversely affect non-party employers by requiring them to pay higher wages than they would otherwise have done may well be correct, but the question is whether our critics can take the same narrow view. Labour law is derived from our Constitution, which is dedicated to the achievement of social justice. Fundamental to this, as Marikana reminded us, is the reduction of inequality.
Extension of a Bargaining Council Agreement is a Key Ingredient in Ensuring Labour Market Peace, Stability and Certainty
Twenty-seven years on, the system stands accused as being unfair. In reality, arguments supportive of this view are, at best, inconclusive or, at worst, speculative. No less contentious is the belief that the extension of bargaining council agreements is a significant barrier to job creation and that the millions of unemployed South Africans stand to gain employment if collective bargaining – and, implicitly, the extension of collective agreements – was done away with. Interestingly, less than a third of South Africa’s workforce is subject to bargaining council agreements and less than 5% is affected by extended agreements, thus leaving the greater part of the economy free from this real or imagined evil.
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“ The point is that Section 32 of the Labour Relations Act (LRA) expressly empowers – indeed, requires –Bargaining Councils and the Minister of Employment and Labour to follow a specific procedure for extending bargaining council agreements
Add to this the right to strike, which is constitutionally entrenched, for the very purpose of allowing workers to exercise economic pressure – in other words, forcing employers to pay higher wages than they would otherwise have done – and it becomes less obvious why collective bargaining aimed at achieving the same outcomes should be regarded as being reprehensible.
The point is that Section 32 of the Labour Relations Act (LRA) expressly empowers –indeed, requires – Bargaining Councils and the Minister of Employment and Labour to follow a specific procedure for extending bargaining council agreements. This procedure was agreed upon in 1995 by the parties to NEDLAC, including the representatives of business.
Collective bargaining is a cornerstone of the system and the reduction of disproportionate income differentials is one of its purposes.
Collective bargaining at industry level, as the Court put it in the Free Market Foundation (FMF) v Minister of Labour & Others, “will be undermined if bargaining agents in a majoritarian setting were uncertain at the outset of negotiations about whether or not their agreements would be extended.”
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That is precisely what Parliament, in enacting Section 32 of the LRA, set out to achieve: in essence, to oblige the Minister to extend a bargaining council agreement at the behest of the parties (i.e., employers and trade unions), provided the formal requirements set out in Section 32 are met. In particular, these requirements are that: one or more registered trade union/s whose members constitute the majority of the members of the trade unions that are party to the bargaining council vote in favour of the extension, and one or more registered employers’ organisations, whose members employ the majority of the employees employed by the members of the employers’ organisations that are party to or a registered with the bargaining council, vote in favour of the extension.
Collective bargaining at industry level “will be undermined if bargaining agents in a majoritarian setting were uncertain at the outset of negotiations about whether or not their agreements would be extended.”
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According to the latest Department of Employment and Labour determination of the representativeness of the Metals and Engineering Industries Bargaining Council, issued in terms of Section 49 of the LRA, the following Representative Determination is made:
National Employers Association of South Africa (NEASA) Plastics Converters Association of South Africa (PCA-SA) the South African Engineers and Founders Association the(SAEFA)Confederation of Employers Organisation (CEO) the South African United Commercial and Allied Employers Organisation (SAUEO) Federated Employers Organisation of SA (FEOSA) Determination of the representativeness of the Metals and Engineering Industries Bargaining Council, issued in terms of Section 49 of the LRA, the following Representative Determination is made:
• the SEIFSA-affiliated employer Associations alone represent 56,15%, the National Employers Association of South Africa (NEASA) represents 19,15%, the Plastics Converters Association of South Africa (PCA-SA) represents 10,81%, the South African Engineers and Founders Association (SAEFA) represents 6,0%, the Confederation of Employers Organisation (CEO) represents 4,60%, the South African United Commercial and Allied Employers Organisation (SAUEO) represents 2.56% and the Federated Employers Organisation of SA (FEOSA) represents 0,73% of these employees. 16% 33% 28% 9% 5% 3% 3% 2% 1% trade unions party to or registered with the Bargaining theCouncilmembers of the employers’ organisations that are party to or registered with the Bargaining Council SEIFSA-affiliated employer Associations
• of the 468 874 employees in the industry, a total of 308 605 (65,81%) of them are employed by the members of the employers’ organisations that are party to or registered with the Bargaining Council;
• the trade unions party to or registered with the Bargaining Council represent 153 873 (32,81%) out of 468 874 employees engaged in the industry;
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After all, this is the legislative model the social partners agreed on in 1995 and which Parliament duly enacted. Preventing, delaying and/or litigating against extension may delay the implementation of higher wage increases for non-parties, but the indirect effects are no less important.
For the affected workers and their family members, this would almost certainly translate into greater distress. It is hard to reconcile this with the goal of social justice. Lucio Trentini Chief Executive Officer Steel and Engineering Industries Federation of Southern Africa (SEIFSA).
After a bruising round of collective barraging last year culminating in a three-week strike that cost the industry in excess of R300m in lost wages per week and well over R600m in lost revenue, all five trade unions, who sit on the Bargaining Council, signed the 2021-2024 Settlement Agreement supporting its extension to non-party employers and employees. In terms of current law and in-line with a Section 32 of the LRA, where an agreement is negotiated and concluded by bargaining agents who represent and employ the majority of employees falling within the bargaining council’s coverage, the extension of a bargaining council agreement is seen as a reasonable and necessary mechanism of collective bargaining and is a key ingredient in ensuring labour market peace, stability and certainty.
Purchase the Main Ag Handbookreement2022 sales@seifsa.co.za Order www.seifsa.co.zaNow Industrial Relations Services Receive the following COMPLIMENTARY - Main Agreement Wall Chart - UpdatedPolicyDisciplinaryandCode - incorporating the Code of Good Practice on prevention and elimination of harassment in the workplace - Code of Goof Practice in Managing COVID-19 in the Workplace
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The Steel and Engineering Industries Federation of Southern Africa (SEIFSA) is the principal advocate for companies operating in the metals and engineering sector. SEIFSA as a federation represents 18 Employer Associations, who collectively represent in excess of 1200 companies. These companies employ over 170 000 employees in the sector. The metals and engineering sector constitutes 25.6% of the total manufacturing sector. The sector is an integral part of the global and domestic economy and a crucial supplier of inputs into sectors such as mining, the automotive sector, construction and other manufacturing industries.
By Tafadzwa Chibanguza, SEIFSA COO
SEIFSA representations relating to the increased instances of copper theft and related damages
Affiliated member companies have also reported instances where they are called out, on a regular basis, to repair power transformers and other equipment that has been vandalised for copper or brass. A recent example is one where the brass drain valve on a 20MVA transformer was smashed off and the oil drained out, which led to the transformer failing. The batteries on the battery tripping unit (BTU) had also been stolen therefore the circuit breaker did not trip the system resulting in the switchgear blowing up and burning down an entire substation. The tragedy of this case is that R7 million worth of infrastructure damage was caused for the sake of a piece of brass that was possibly sold for R50 as scrap Regularmetal.instances of copper cables and even the windings of transformers being stolen have been reported by affiliated member companies. The value of the copper stolen is minimal in comparison to the cost of replacement, downtime and damage to other related equipment. It is also a fact that as soon as the power is off the criminals are aware that it is safe to cut into other cables. Theft is not limited to copper and brass. The barriers on the roads and traffic light poles are also prime examples. High mast light poles are also damaged because the covers over the cable entries get stolen which means that they are critically weakened and, in many instances, they collapse, which in turn expose open operational electrical circuits to the general public and more concerning children. Members are also coming across instances where infrastructure is being damaged, seemingly for the express purpose of being able to provide an alternative service. If the water works are inoperable then water tankers have to be contracted to supply water to the community. It would seem therefore that it could well be in the best interests of the suppliers of the water tankers to ensure that the water works is out of operation. These ongoing and ever-increasing incidents of copper and brass theft and infrastructure damage are having a devastating effect on the country, the economy at large, security of personnel and individual businesses operating in the country.
BACKGROUND AND CHALLENGES SEIFSA affiliated member companies have reported an alarming increase in armedrobberies which are occurring on a daily basis where copper is the prime target. Therehave been numerous instances where armed robbers get away with large amounts of copper worth between R 400 000.00 and R 500 000.00. This is despite companies having invested in security systems on their premises in the form of alarms, cameras and armed response services. In some instances, employees have been held hostage and other items such as laptops, tools and cash are also stolen. The perpetrators are highly organised in carrying out these criminal activities, which they execute with the greatest of The specialist sophisticatedandnatureoftheseactscallforanequallevelofintervention from the State. The illicit export of copper is driving the theft of copper in South Africa and the destruction of infrastructure in this regard must be considered as treason.
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• SEIFSA on behalf of its membership would therefore wish to propose three key and urgent interventions that will significantly contribute to curbing these devastating trends:
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• This will provide for better control of the ownership and trade of the metal under a single regulator, the South African Diamond and Precious Metals Regulator, who is empowered by the act to “implement, administer and control all matters relating to the acquisition, possession, smelting, refining, fabrication, use and disposal of precious metals”;
• Importantly, the fact that it is illegal to deal in cash for precious metals, will also act as a deterrent for the illicit trade of copper.
• The offences and penalties associated with the illegal possession and trade of precious metals will also act as a deterrent to copper theft.
• Particularly important in curbing theft of copper are the powers afforded to the South African Police Service (SAPS) under the act to inspect, search and seize “at any reasonable time, without prior notice” suspected criminal activity relating to the illegal possession of a precious metal (section 16 of the act); and
• The prohibitions relating to the acquisition, possession or disposal of precious metals as contemplated in sections 4 and 5 of the Act, will provide a framework under which the copper will be regulated;
1. The reclassification of copper as a precious metal • Section 1(b) of the Precious Metals Act (No 37 of 2005) indicates that the Minister of Minerals and Energy is empowered to declare “any other metal” to be a precious metal for the purposes of the act, along with the ores associated with the metal;
It is proposed that the terms of reference of this dedicated and focused Task Force should be on gathering intelligence and clamping down on criminal syndicates operating in the copper and scrap metal markets. Making the public and business community aware of such a Task Force will make it far easier for industry, citizens and communities to report metal theft to a dedicated entity. Business wants to play its part. We accept that the state alone is unlikely to solve this problem. Nevertheless, the state through the various Ministries listed above collectively does have the legislative power to enact both proposals and in return, our affiliated membership, spread through the length and breadth of our country will play its part. infrastructure, which is often perpetrated for the express purpose of copper (metal) theft is the Critical Infrastructure Protection Act of 2019, which repealed the National Key Points Act of 1980. This act provides procedures for declaring certain infrastructure as critical, who should protect it and the sanctions associated with damage to the critical infrastructure. However, the act has only recently been partially brought into operation with effect from the 30 of April 2022. Presently, only start-up activities such as appointing governing committees and deciding on criteria for declaring infrastructure as critical has been completed. Considering that it has taken almost three-years to get to this point, would imply that getting the full act into force would take several years. SEIFSA submits that given the magnitude of infrastructure damage currently being to have critical infrastructure being unprotected and the added advantage will be the contribution of this act to limiting cable and metal theft. In closing we wish to stress that the reclassification of copper as a precious metal will provide for the metal to be regulated under an administrative and institutional arrangement that already exists. The extent of infrastructure damage, theft, cost, injury and loss of life to the industry requires immediate and urgent intervention.
2. The establishment of a dedicated infrastructure, copper and scrap metal task force
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It is therefore SEIFSA’s submission, on behalf of the affiliated membership, that this approach is the fastest avenue to try and curb this devastating trend. We pray that this proposal will receive your urgent and favourable attention. SEIFSA and key representatives from business will make themselves available to engage further
19 Contents Page Training and consulancy The EC Division publishes annual/quarterly State of the Metals and Engineering Sector Reports and monthly Price Movements Reports. Flagship product of PIPS ( Price and Index Pages ) We can consult and train on any of the matters of Economic and Commercial below: • Theory and Calculation of Contract Price Adjustment; • Research • Insight & analysis • International trade analysis • Economic impact assessments • Commercial contracts • Statistical analysis • Trends evaluation Economic and Commercial Services Contact our expert LET US TAKE CARE OF YOUR ECONOMIC AND COMMERCIAL NEEDS TRAINING CONSULTANCY PUBLICATIONS Palesa Molise palesa@seifsa.co.zaEconomist Eleen Snyman Economic and Commercial eleen@seifsa.co.zaOfficer
HEADWINDSSIGNIFICANTFORTHESTEELSECTOR
It’s been a challenging time for the metals and engineering industries recovering from the effects of the COVID-19 pandemic, unprecedented inflation, rising fuel prices, devasting floods and persistent loadshedding. All businesses have been impacted by these events.
-1,1% in Q2 2022 -1,3% in Q2 2022 By Tafadzwa Chibanguza, SEIFSA COO
In the spectrum of leading, coinciding and lagging economic indicators, the metals and engineering sector is classified as coinciding. That is, its performance is indicative of the prevailing economic fundamentals. It is also extremely sensitive to these prevailing global and domestic economic events. To this end, our estimates already point to production in the sector contracting by between -1.1% to -1.3% in Q2 2022, with notable downside risks for the full year’s outlook.
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The global economic outlook has deteriorated significantly since Russia invaded Ukraine. Growth forecasts have been revised lower with each iteration while inflation has been revised upwards. During Q1 2022, inflationary pressures were already building in the global economy, however, this was initially driven by aggregate demand increasing faster than supply chains could respond. The invasion of Ukraine by Russia in February 2022 set the proverbial cat amongst the pigeons in economic and inflation terms. SEES
SEIFSA
the global headwinds are weak domestic fundamentals that are also feeding into the outlook. The energy crisis, which was the worst on record in Q2 2022, is a major constraint and risk to the outlook. Electricity availability is an essential input into the metals and engi neering sector. The sector is comprised of energy intensive users of electricity who have to cut production due to electricity curtailment. Whilst the sector also comprises producers that are less energy intensive, load-shedding causes a complete halt to operations.
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The state of local government and the lack of service de livery is another major constraint. Companies in the metals and engineering sector are spread across the length and breadth of the country and are adversely affected by service delivery failure at local government level. The in efficiencies of local government breed costs for producers eroding their competitiveness. It goes without saying that, now, more than ever before a national strategy on industrialisation is needed to stabilise and reignite the metals and engineering sector, which must include an aggressive infrastructure programme and a dedicated focus on economic reform rolled-out in partnership with the private sector. To borrow the adage that a rising tide lifts all boats, means that the inverse is also true. In a less supportive global economic environment with headwinds intensifying, domestic economic policy and reform has to do a lot more heavier lifting to support the economy. With a fragile global environment, a sluggish local economy, an outlook for the remainder of the year and into 2023 remaining uncertain and the prospects of things getting worse before improving now would be a good time to adopt a more frugal outlook.
This view is informed by a number themes that are shaping the global and domestic economic fundamentals. These include the aggressive monetary policy tightening in the US, in response to multi-year record inflation outcomes recorded in that country. The on-going Russia-Ukraine war and its implications for the European Union. A concerning development is the weaponizing of gas supply by Russia to Germany, which will have recessionary consequences for Germany, the largest economy in the EU and South Africa’s second largest trading partner. The dominance of Russia and Ukraine in the food inputs and commodity complex is driving inflationary pressure globally, reinforcing the need for central banks around the world to increase interest rates. China’s aggressive zero-covid policy, in which the last round of lockdowns has affected the economic hubs of Shanghai and Beijing have contributed to a slowing global economy.
Compoundingriod.
These themes will continue to dominate the global eco nomic narrative and the slowing of global economic growth. Steel production is highly correlated with eco nomic growth and the early warnings signs of a slowing growth rate are evident in the reduction of iron ore prices, a key ingredient in steel production. In dollar terms iron ore price have decreased 28.6% year to date 2022 and down 49.3% year-on-year to July 2022. This is despite a reduction in sea-borne supply from Ukraine. Domestically basic iron and steel sales declined by 8.1% year to date, other fabricated metals declined 8.5% and structural steel products declined 1% over the same pe-
HOW DO WE NAVIGATE THE RISING Gig Economy as Temporary Employment Services in SA?
Unblurring the lines The gig economy is a labour market made up of freelance work, as opposed to permanent, in-house jobs. As work tends to be temporary or project-based; gig workers are independently hired to complete a specific project for a specific period. While seeming like TES work, gig work is not to be confused with TES. There are online platforms where gig workers privately offer their services and get into contracts with busi nesses. TES or labour broking involves companies or the end users employing a temporary workforce through TES companies, which are agencies that provide these workers for a short period of time. Both these types of arrangements are often called alternative or non-standard work arrangements as opposed to traditional, permanent employment. More and more South African workers are opting for the “non-standard” approach to making ends meet. Many of these are looking towards TES pro viders to protect their interests and rights in business relationships. Albie Rheeder, from the Tem
The Temporary Employment Services (TES) industry is adapting to a changing labour market. The Fourth Industrial Revolution has ushered in exciting developments such as the everyday use of artificial intelligence, wireless digital technologies, robotics, a constantly expanding internet as well as a fusing of digital and physical worlds.
Undoubtedly, these have played a major role in giving rise to new business models which are cur rently affecting the nature of work and employment relationships worldwide. While the success ful adoption of these technologies is promising for businesses and consumers, it has also presented new challenges to the labour market. It has brought with it economic disruption with uncertain consequencessocio-economicforAfrica.
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“The inclusion of digital platforms in the act means that businesses like e-hailing services, will need to adapt their models to comply with the changes.” Rheeder goes on to pose the question whether a young entrepreneur that has conceptualised an application which provides a service for South African companies and creates the required employment opportunities be required to report the freelance foreign gig worker in the Baltic states and India that do the development? Do these need to be recorded as employees or workers? “Only time will tell if these international corporations shy away from bringing new technologies and if the act wants to create opportunities for South African citizens,” adds Rheeder. The TES industry helps to boost the economy by creating employment and supporting end users by efficiently providing a supply of shortterm labour. The industry will need to evolve with the modern times and updated regulations to continue benefiting the South African economy. In the interim, the Temporary Employment Services Division (TESD) is providing TES companies with a stakeholder forum to potentially help regulate this specialised industry, helping their members to serve the needs of the client and to protect the rights of the TES candidate, like the gig worker, in a legally compliant environment. The division continues to increase awareness for and supports in dustry compliancy. It is essential that TES providers comply with all current requirements. In terms of the proposed draft and amendment, good practice requires that there is no missing docu mentation for foreign workers and that the job application is relevant to the skills on an issued permits for temporary workers who are foreigners in South Africa.
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porary Employment Services Division (TESD), remarks that the recently proposed amendments to Draft National Labour Migration Policy and the Employment Services Amendment Bill raises pertinent questions for the digital labour market utilising these gig workers.
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Adapting to an evolving labour market
24 Contents PageLET US TAKE CARE OF YOUR HUMAN CAPITAL AND SKILLS DEVELOPMENT NEEDS TRAINING CONSULTANCY PUBLICATIONS Training and consulancy Human Capital and Skills Development Consultancy Publications Visit our website for a range of Human Capital and Skills Development publications. Contact our expert The HC & SD Division has a network of Alliance Partners with a national footprint. Zizile Lushaba Human Capital & Skills Development zizile@seifsa.co.zaExecutive We can consult and train on any of the matters of Human Capital and Skills Development below: • Skills Development Facilitator (SDF), Facilitator, Supervisory, Assessor, Moderator; • Skills development Committee Training; • How to earn maximum B-BBEE points through skills development; • Workplace Skills Plan (WSP); • Employment Equity Committee training and submission training; • Change Management; • Diversity and Social inclusion; • Performance Management; • Talent Management & Succession planning training; • Self-motivated teams; • HR Audit.
If there is one thing we can learn from the COVID-19 pandemic, it is that many employees can work from anywhere and the “normal” 9 to 5 is no longer palatable to the upcoming workforce.
25 Contents Page The Arecanonandworkingfour-dayweekitsimpactSouthAfri-labourlaw:weready?
Over the past two years, many employers have had to reassess their working arrangement as a result of the pandemic. COVID-19 served as a test run on what the “new normal” has to offer in respect of the employment relationship and some work ing conditions. This has resulted in many employers successfully implementing a hy brid working arrangement and, in some instances, even requiring their employees to work from home indefinitely. Many employers have indicated that they have experienced an increase in produc tivity and less stressed employees. On the flip side, however, employees have been unable to shut down and find themselves working round the clock and over and above their normal working hours. Considering the above, does this mean that South Africa is ready for a four-day working week post COVID-19? Countries like Belgium and the UK have been able to successfully implement a fourday working week. However, given that South Africa is highly regulated in respect of its labour and employment laws, it has been argued that it would not be as seam less or easy an exercise to implement in comparison to these countries. South Africa has numerous bargaining councils and sectorial agreements that regulate basic conditions of employment in the different sectors and include, inter alia, working hours. In order to be able to im plement a four-day working week model, these agreements will have to be amended and their terms renegotiated to align with such a model. This means an employer cannot change the terms and conditions of employment as recorded in these agreements without
Employers will also have to consider the applicable legislation and agreements regulating their sector and engage in a con sultative process with the relevant stakeholders.
Although“ a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their respective sector and industry in order to establish whether it would be practicable or even feasible for its business model
Although a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their re spective sector and industry in order to establish whether it would be practicable or even feasible for its business model.
In addition to this, the relevant labour and employment laws will have to be amended to cater for the working model from a regulatory point of view. Employers will need to consider their health and safety obligations towards employees in terms of the Occupational Health and Safety Act 85 of 1993, which requires an employer to, among other things, do everything rea sonably practicable to protect employees’ health and safety in the workplace. In this regard, an employer’s obligations to en sure the health and safety of its employees extends to where the employee is working outside of the conventionally under stood workplace, including a home office.
first consulting the relevant stakeholders, which include trade unions, workplace forums and individual employees.
This is a process that is consultative and which must result in consensus being reached on all aspects related to the arrangement. A failure to obtain consent prior to implementing the working model may result in a unilateral change in terms and conditions of employment by an employer. This could expose the employer to a referral by its employees in relation to unilateral changes to terms and conditions of employment.
It is, therefore, perhaps premature to make a concrete finding that the four-day working week model would be possible in a highly regulated country like South Africa. We will therefore have to monitor its progress and assess from an individual employer’s business model as to whether the four-day working week would be appropriate.
27 Contents Page 7 Things employees look for in a Company Have you ever wondered what keeps employees motivated and loyal to a company? Perhaps you have struggled to retain employees in your company. Do they just come and go? What are some of the reasons why they are not willing to stay and work to grow your company over a long period of time? In this article, we’ll look at 7 things that employees look for in a company. Providing your employees these 7 things will keep them happy and motivated to achieve their targets and elevate the company. A Boss That Is Easy to Work With andUnderstandingRespect,Trust GrowthCareer Clear CommunicationConsistentand PerformanceBasedPromotionandRecognitionon Training DevelopmentProfessionaland A CultureWorkplaceGreat 1 2 3 4 6 5 7 Providing your employees these 7 things will keep them happy and motivated to achieve their targets and elevate the company.
1. A Boss That Is Easy to Work With Let’s face it. No one wants to have a boss who makes their life difficult. Every employee wants a boss who is easy to work Manywith.times, bosses create a toxic work environment that makes great employees leave their company. This toxic work environment manifests itself in the form of bullying and unreasonable criticism of employees by company management, poor communication to employees from company management, fear of company management among employees and incessant complaints among employees. Some of the negative effects of bad company management include low employee morale leading to low productivity, high staff turnover and a decline in Onrevenue.theflip side, if a company has a great management that values and respects employees, the employees tend to be motivated and highly productive and the staff turnover tends to be low, leading to an increase in revenue.
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But how many companies actually respect, understand and trust their employees? Employees will not work for a long period of time in a company that does not respect, understand and value them. Their motivation and productivity tends to be very low. They also tend to have no loyalty for such companies. And it gets worse. When employees feel disrespected, mistrusted and that the company management does not understand them, customers will feel the same way. If, on the other hand, employees feel respected, understood and trusted, they tend to be motivated and productive.
Admittedly, these seem like pretty obvious requirements.
2. Respect, Understanding and Trust
7 Things employees look for in a Company
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Do your employees feel like you don’t communicate enough? Do they often feel left out from important company conversations? What happens when there is a problem in the company that directly affects them? Do you communicate this to them or do you just keep it under the carpet and let them find out through an accidental leak? Employees need consistent communication from top management that is very clear and direct. Inconsistent and/or ambiguous communication often creates misalignment problems between company management and employees. This misalignment is a major cause of inefficiency and unproductivity in a company. Employees also need to know that their voice matters. Establishing systems that promote effective internal communication in a company is therefore a necessity that no company should ever ignore
Based on Performance Employees want their efforts and contribution to their company to be recognized. This fuels their motivation and jeeps them focused on achieving and exceeding their target. This recognition can be in the form of a simple mention of their achievements in an all-team meeting, rewarding them and/or, and this is the best form of recognition, their promotion to a more senior position with a higher pay. Establishing a recognition and reward system is a very important step that will keep employees working hard individually and collectively as a team to achieve their targets and elevate the company. It is therefore a necessary ingredient in the process of increasing employee satisfaction and promoting team culture in a company. employees look for in a Company
5. Recognition and Promotion
3. Career Growth Employees need companies that have a great career growth prospects. It is therefore extremely important that company management keeps this in mind and discusses with each employee their career growth prospects based on agreed upon Themilestones.simple act of having this conversation alone is very important as it lets employees know that the management cares about their growth in the company. But that alone is not enough. It is important that company management actually keeps its promise and promotes employees based on achieved milestones. If you do this, as company management, employees will always be motivated and productive.
7 Things
4. Clear and CommunicationConsistent
The truth is, employees expect their companies to help them enhance their skills through in-house training programs, industry exposure through events and workshops, and networking/benchmarking with complementary companies in a similar line of business. However, many companies don’t invest enough in training their employees. This leaves employees feeling like their companies are not dedicated enough to ensuring that they excel in their roles and responsibilities. In fact, some employees leave their companies to pursue growth and development in other companies.
With the highly improved company culture, you can say goodbye to any struggles your company has had in its attempt to attract and retain top talent.
It is becoming increasingly important to invest in building the kind of company culture that keeps employees motivated. The truth is, employees expect that kind of culture. What does your company culture look like? How can you describe it? Unfortunately, a lot of companies don’t really understand their culture. It might be toxic to employees and promoting to a high staff turnover but if they don’t know it, how can they fix it? At Afrijob, we have a highly specialized talent team that is good at diagnosing culture problems and fixing them to help companies build the kind of culture that is conducive for staff motivation, retention and performance.
7. A Great Workplace Culture
These are some of the top things that employees look for in a company. If you are struggling to attract and retain employees, chances are that you are failing in providing one or a number of the requirements above. If you need help fixing staff turnover and employee productivity problems in your company, please get in touch with us by clicking on this link. Training and Professional Development
Are you investing in building the skills of your employees through continuous training and professional development? If not, this is a great opportunity for you to think critically about upskilling your employees.
6.
Parting Shot
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Thesport.reason is simple. The Springboks represent all that is good about South Africa. They play with vision and determination; they overcome the inevitable setbacks and injuries associated with such a physical sport; they adapt their strategy and tactics to accommodate the strengths and weaknesses of opposing sides; and they exude a magnetic team spirit in backing each other up while performing their individual tasks to the maximum extent of their personal abilities. A KIND
In the comfortable warmth of my sitting-room, I recently had the privilege of watching the two closely contested rugby games between the Springboks and Wales. I am looking forward to the series decider in Cape Town on Saturday. Whichever way the match goes, I cannot help feeling that the example set by the Springbok rugby team is pivotal in another context: that of ensuring a positive economic future for South Africa. Let us look at the recent history of rugby union here first. Since 1994, the Springboks have undergone the transformation from a white to a fully non-racial team. During this process, they have won the Rugby World Cup three times – a feat only accomplished by one other nation, New Zealand. Along the way, individual heroes like Chester Williams, Victor Matfield and Siya Kolisi have inspired countless youngsters to take up the
Clem Sunter 15 July 2022 SPRINGBOKS AND FOXES: TWO OF
From the entrepreneurs in the informal sector selling their products at street-corners to the well-known retail chains in every shopping mall, foxes are plying their trade in the hope of winning their particular game, however modest or large the playing field is.
South Africa is a good nursery
The principal message of this article is that what has made rugby such a success in South Africa applies equally to that other competitive and more universal game we call business. We already have plenty of players in the second game here. I like to call them the foxes because they exhibit the same kind of agility and bravery with their money as their sporting equivalents do with their bodies.
Above all, the players are chosen on merit because you cannot win international matches with a suboptimal team. When so many people write dismal articles about this country’s failing education system and lack of opportunities for young people, it is quite something that natural selection with no racial bias has produced this diverse side of talented players who have combined into being a world-class phenomenon. South Africa is a good nursery for some activities at least. At the same time, one must also praise the invisible support system from schools to local clubs to provinces to national structures that work in combination behind the scenes to achieve this result. They may not get the same celebrity status, but they are as crucial to the success of the whole exercise as the performance of the players themselves. They constitute the hidden tunnel out of which the stars emerge onto the playing field. It is a shame that, in other sports like soccer, the pipeline is nowhere near as effective in producing the local talent to win international tournaments. From the scrum of rugby to the hustle of business
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Their bright eyes pick up new opportunities faster than their slower-moving competitors. Yet, unlike the Springboks, we do not have the pipeline which allows foxes in our society to grow from scratch into something substantial. Nor do we have an encouraging environment like the passionate spectators who loudly cheer the Springboks on to victory from the stands. Quite the reverse. We
35 Contents Page have some people who strongly disapprove of the game of business from an ideological point of view and want to drown it in red tape. We have others who want to replace it altogether with non-competitive pursuits over which they exercise complete control. Little do they know that the final score is totally beyond their influence. Somehow, they feel threatened by the foxes who are the real wealth-creators for any nation. As far as the pipeline is concerned, how many schools in this country run an entrepreneurial course alongside normal lessons and sport, in order to plant the seeds of being an enterprising fox? I ask this question because there is an inconvenient truth at the heart of life today. The nature of work has changed in this century and schools are expected to be educating pupils for the market of the future, not the past.Nolonger are governments and big business the major creator of jobs that they were in the last century. Lack of affordability and smarter technologies have massively reduced the workforce of the large employers. In all parts of the world, therefore, more and more people have to create jobs for themselves rather than apply for jobs that already exist. The Covid pandemic has intensified this trend by encouraging people to work digitally from home as opposed to going in person to the office.
An example of foxes in action South Africa is no exception to being a victim of the collapse in the traditional job market. This is one reason why we have such an appallingly high unemployment rate of 64% for those aged 15-24 and 35% overall. By comparison, the latter unemployment figure in America and Australia is currently under 4%. They have discovered and nurtured the foxes within their borders and imported others from overseas. And that is where the answer lies.
High employment rate of 64% Like rugby, we have to embrace business as an authentic game in which a growing proportion of the country’s population will be involved as foxes. They become the business Boks - either as individuals or in small teams. A few really enterprising foxes will make it into the medium-sized or big business category. Others will fail and have to start again on a different playing field.
I would like to provide one great illustration of South African foxes in action. At a mall near Simon’s Town in the Western Cape is a café cum restaurant at which I am a fairly frequent customer. I like the noise of families chatting at nearby tables, while the odd savant sits alone by the window peering into a laptop. The point is that each time I enter the door, the staff operate as a team similar to a game of rugby. There is a lady who welcomes me courteously by name, a man who makes the most delicious cappuccino and - when there is no load
The experience I have related gives a clue as to what a real economic revolution is all about. At grassroots level, so many South Africans forget about their differences when working towards a specific goal. Just like the rugby players, they combine their different talents to produce a winning proposition for local people and tourists, and at prices which are surprisingly cheap by international standards.
shedding – I can get the best battered fish and chips in the province. Every time they beat the opposition hands down.
Rather you build on something that is already there from the bottom up than invent something completely new. Hence, our path to becoming a winning nation is to take a pocket of excellence like the Springboks and repeat their model again and again in the world of business – especially by getting the private sector to create a similar pipeline to rugby out of which promising young people can emerge as innovative foxes. That is how we will win the Business World Cup in years to come. Springboks and foxes have a lot in common. Now let’s blow the whistle to start the match side by side.
Repeat Springbok model over and over again
Contents PageSEIFSA RATE CARD SEIFSA News (Interactive pdf - digital format) New size - FULL Page : 333.9mm (w) x 190.5mm (h) no bleed• SEIFSA News is in its 37th year of circulation and has evolved from a print publication, to being an online magazine circulated on all of SEIFSA’s digital platforms. • This includes the SEIFSA website, Facebook, LinkedIn and Twitter. The publication is also available on SEIFSA’s digital showroom hosted by Engineering News. • SEIFSA’s social media presence is continually growing both organically within the Metals and Engineering Sector as well as in related industries across the globe. • SEIFSA News has an established reputation as the most authoritative voice in the industry. The publication focuses on the latest information on labour related matters and employment law, key trends in the skills development arena as well as a detailed economic reports and analysis highlighting trends in the sector. • In addition, the magazine has an updated list of accredited temporary employment service providers (TES) who are affiliated to SEIFSA, registered with the bargaining council and metal industries benefit funds and who are recognised as reputable TES providers • SEIFSA News is published bi-monthly every year and is circulated to both members and non-members in the Metals and Engineering Sector. • Material deadline and requirements Ad booking deadline - 1st of preceding month Ad material deadline - 17th of preceding month Full page anywhere R 3 145.00 Full Inside Front page Full Inside Back Page R 2 990.00 R 2 360.00 R 5 245.00 R 4 455.00 R 3 095.00 R 5 245.00 R 4 455.00 R 3 095.00 Description 1 Edition 2 Editions 6 Editions EFFECTIVE May - December 2022 Advertising enquiries Tel: 011 298 9400 - sales@seifsa.co.za All rates exclude VAT - The editor reserves the right to decline advertising Half page R 2 045.00 R 1 415.00 R 995.00 Description 1 Edition 2 Editions 6 Editions New size - HALF Page : 166.95mm (w) x 190.5mm (h) no bleed New size - THIRD Page : 83.48mm (w) x 190.5mm (h) no bleed Third page R 1 050.00 R 895.00 R 735.00 Description 1 Edition 2 Editions 6 Editions Material should be send in high resolution PDF, Tiff or JPG via email if less than 5MB, or via WeTransfer if larger than 5MB. High resolution pdf with NO crop marks. If submitting advert in Powerpoint or Word, pictures and logos must be CMYK and must be made up to the correct size.
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The decision is only one of many to have come out of the CCMA recently and does not create binding precedent. Further, while the ultimate outcome reached on the fairness of the employee’s dismissal may be reasonable in the circumstances of the case, there are, in our view, a number of issues with the commissioner’s findings.
In a recent decision of the Commission for Conciliation, Mediation and Arbitration (CCMA) in the matter between Kgomotso Tshatshu and Baroque Medical (Pty) Ltd, the commissioner found the retrenchment of an employee for refusing to comply with the employer’s vaccination policy to be substantively unfair, and awarded the employee the maximum compensation, equivalent to 12 months’ remuneration. In his award, the commissioner expressed the view that an employer has ‘no right to formulate any Covid-19 Vaccination Mandate’ in the workplace, as this is the prerogative of Government; and that ‘Mandatory Vaccine Policies are not only unreasonable, but they have no place in our labour market’.
CCMA decides that an employer’s vaccination policy is unreasonable and unconstitutional – should employers be concerned?
While the decision (and the views expressed therein) may be welcomed by many who have voiced their opposition to workplace vaccination policies, employers who have such policies in place need not necessarily be alarmed.
The employer (Baroque Medical) introduced a compulsory Covid-19 vaccination policy at its workplace. In terms of the policy, vaccination was framed as an operational requirement, as it would reduce the time that employees spent away from work due to illness and ensure a safe work Theenvironment.policyrequired all employees to be vaccinated, failing which their services ‘may then be terminated for operational reasons’. It was recorded that there were no alternative positions or roles that did not require vaccination. Four employees were ultimately retrenched on this basis. The employee in this case, a senior inventory controller, refused to be vaccinated because of her fear of the vaccination, explaining that she had experienced a previous negative response to a flu vaccine 10 years earlier. She also objected on Constitutional grounds, namely her right to bodily integrity, stating that the vaccine was experimental. Baroque Medical required the employee to substantiate her refusal on medical grounds, but ultimately rejected the doctors’ notes she presented as being insufficient. Having rejected her grounds for refusing to vaccinate, the employer dismissed the employee and did not pay her severance pay. Findings of the commissioner The commissioner found the employer’s vaccine mandate to be an unreasonable rule. On this basis, the dismissal was found to be unfair. As for the process, the commissioner found that because the employer had chosen the route of retrenchment, it had to show that it went through a consultation process. Since it had already decided up front that any employee who refused to vaccinate would be dismissed, the consultations were largely lip-service.
Background to the case
Referring to section 36 of the Constitution, the commissioner reasoned that the employer’s vaccine mandate was like a ‘law of general application’, in that it was a general rule applicable to all employees in the company. However, as a company rule is not a law passed through the parliamentary and constitutionally entrenched process, it does not enjoy inherent legitimacy and is open to challenges as to reasonableness and fairness in addition to the limitations imposed by section The36.
In coming to his conclusions, the commissioner made, among others, the following findings: The State has not passed any legislation requiring all employees or citizens to vaccinate, nor have any state departments or the judiciary implemented compulsory vaccination policies for their employees. This is because doing so would amount to unfair discrimination and would be unreasonable. In terms of the Constitution, everyone has the right, among others, to bodily and psychological integrity and there is no requirement for employees to provide any reasons in this regard – they can simply exercise the right.
Consolidated Occupational Health and Safety Direction, which applied at the time of the dispute, required a risk assessment to be performed by the employer which could identify certain employees to be vaccinated and it did not provide for or permit a blanket mandatory vaccination policy. The employer did not produce a risk assessment or lead any evidence on it. Accordingly, the employer could not demonstrate a link between the rule and its objective. There can be no value or objective to a mandatory vaccination policy in circumstances where only a handful of companies have such policies in place and an extremely small number of people adhere to them. Employees
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39 Contents Page are also not confined to the workplace and will be exposed to others in their daily lives. Accordingly, such a workplace rule cannot be reasonable. In our respectful view, the commissioner’s reasoning fails to appreciate the principle of subsidiarity and the fact that there is existing legislation (being the law of general application) which creates the legal framework for vaccination policies in the workplace.
Concluding remarks
In particular, the commissioner failed to consider the employer’s duty, in terms of the Occupational Health and Safety Act, to create and maintain, as far as reasonably practicable, a safe and healthy working environment. The commissioner also failed to consider the Hazardous Biological Agents Regulations and the Code of Practice on Managing Exposure to SARS-Cov-2 in the Workplace, which further inform this general duty. We discuss this legislative framework further in our previous newsflash here. The commissioner does, however, rightly consider the reasonableness of the employer’s vaccination requirement with reference to its risk assessment and it appears that this may well be an area where the employer fell short. Interestingly, in an earlier dismissal dispute involving one of Baroque Medical’s other employees (who had also been retrenched for refusing to vaccinate), a different commissioner accepted that the company had an appropriate risk assessment in place. It is not clear why the risk assessment was not produced by the company in the present case, but the decision highlights the importance of leading evidence in this regard.
The commissioner in this case has undoubtedly made his views clear on workplace vaccination policies. However, the sweeping statements about vaccination policies in general should not be taken as the final pronouncement on the issue. The decision to introduce a vaccination policy remains one that must be based on each employer’s individual circumstances. It is clear from the applicable regulations that any employer’s vaccination rule must be informed by its risk assessment and the particular hazards and working conditions that arise in its specific workplace. These risks, and the measures that can reasonably be taken to reduce them, must also be considered in light of the prevailing medical science.
Further, when it comes to the dismissal of an employee for failing or refusing to comply with an employer’s vaccination policy, employers will need to be able to show that the proper procedures were followed, both in introducing the policy and in exploring alternatives and reasonable accommodation measures. As is always the case, dismissal remains an act of last resort.
On 22 June 2022 the Minister of Health published a notice in the Government Gazette repealing Regulations 16A, 16B and 16C of the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions issued under the National Health Act on 4 May 2022. The repeal does away with the requirement to wear face masks in public, the limits on gatherings and restrictions on international travel to South Africa.
The repeal of these Regulations does however not affect the continued operation of the Hazardous Biological Agents Regulations (“the HBA Regulations”) published on 16 March 2022. Those regulations classify Covid-19 as a Group 3 Hazardous Biological Agent (HBA) and place several obligations on employers, including conducting a risk assessment and developing an action plan for the implementation of recommendations arising from the risk assessment. The HBA Regulations must also be read with the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace which was published on 15 March 2022 and which came into effect upon the lapsing of the State of Disaster. The Code of Practice makes reference to a workplace plan (following a risk assessment) which may require employees to wear face
Themasks.HBA Regulations were promulgated under the Occupational Health & Safety Act, while the Code of Practice was issued as a regulation to the Labour Relations Act. These documents must accordingly be interpreted in accordance with those Acts and, in particular, the obligations of employers arising therefrom.
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Face masks in public are out - but what about the workplace?
Smoke at your own risk’
On 1 June 2022, the Labour Court in the case between Bernadette Enever and Barloworld Equipment found that an employee’s dismissal from Barloworld for the repetitive use of cannabis in her private space, does not constitute unfair discrimination or an automatically unfair dismissal.
Labour Court finds against employee who was dismissed for consuming cannabis in their own home
Background Ms. Bernadette Enever (Employee) was employed by Barloworld Equipment since 2007 in the position of a category analyst, which was a desk job. According to her evidence, she had a history of severe constant migraine and anxiety. As a result, her general practitioner had prescribed a heavy dosage of medication for pain and anxiety that caused side effects.
Aspremises.aresult of her continuous use of cannabis and breaching the Policy, the Employee was charged and dismissed pursuant to a disciplinary hearing where she was found guilty. Despite Barloworld seeking a final written warning as a sanction, the chairperson of the hearing imposed a sanction of dismissal as a final written warning would serve no purpose - the Employee refused to stop using cannabis therefore she would be in perpetual contravention of the polAftericy. her dismissal, the Employee referred an auto matically unfair dismissal and unfair discrimination on arbitrary grounds dispute to the Labour Court in terms of which she alleged that Barloworld had unfairly discriminated against her by applying the Pol icy and as a result, her dismissal was automatically unfair.
After the decriminalisation of the personal consump tion of cannabis in private spaces, the Employee gradually moved away from consuming pharmaceu tical medication to using cannabis oil and smoking rolled cannabis as an alternative. The consumption of cannabis took place outside of working hours and in the privacy of the Employee’s home. She also con sumed cannabis recreationally.
Barloworld has a zero-tolerance Alcohol and Substance Abuse Policy (Policy) due to the dangerous operations on its premises. The Employee was at all times aware of this policy. In terms of the Policy, employees are required to undergo medical tests in order to gain biometric access to Barloworld’s premises. If an employee tests positive for alcohol or a substance, they are declared unfit for work and directed to immediately leave the premises. On 29 January 2020, the Employee was subjected to a medical test which was in the form of a urine test. The test came back positive for cannabis and she was asked to immediately leave the premises. At the time of the test, the Employee was not impaired or suspected of being impaired in the performance of her duties. The Employee was placed on a seven-day ‘cleaning up process’ until she was cleared by testing negative; however, she continued to consume cannabis and, because of this, was denied access to Barloworld’s
The Court ultimately found that the Employee had wrongly elected to pursue a case of unfair discrimination where discrimination was not present. The Employee’s dismissal arose from normal misconduct which is a matter that falls out of the jurisdiction of the court to decide on a basis of first instance. Further, the Employee’s wilful breach amounts to misconduct and a sanction of dismissal was correct under the circumstances. In reaching its finding, the Court reasoned, among others, as follows: There was no evidence from the Employee to sug gest how Barloworld had treated her differently compared to other employees who had tested pos itive for a substance or cannabis.
The Court’s findings
Concluding remarks This decision illustrates, among others, the importance of referring unfair dismissal disputes to the correct forum.
The setting of rules and implementing of policies in the workplace remains the prerogative of employers. However, they have a duty to ensure that such rules are reasonable and defendable if challenged. When one considers a remark by the Judge that ‘a zero tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in their private time’, employers will have to consider carefully how similar policies are worded and implemented going forward. Seeking legal advice in this regard may be a viable option for employers.
The Employee failed to lead persuasive evidence to substantiate her medical condition.
In this case, and in our view, the employer’s conduct was correctly found not to constitute an act of unfair discrimination. Any employee who breaches the Policy is not permitted access to the workplace and this is applied consistently. An unfair discrimination referral, more so on an arbitrary ground where the onus shifts onto the complainant, would have been difficult to substantiate. In addition, the Employee failed to lead any evidence regarding the grounds she alleged she was being discriminated on and how she was being discriminated against, despite the Judge having incorrectly found that the burden of proof was that of Barloworld.
The Employee’s recreational use of cannabis dimin ished her grounds to justify contravening the Policy. The Employee was aware of the Policy, which Barloworld applied consistently to all employees of all classes without exception. Therefore, the Policy does not differentiate among employees. The Court considered that cannabis is different when compared to alcohol; however, the Policy was applied consistently in respect of all employees. The Court was of the view that, in light of Barlow orld’s dangerous environment, it is entitled to discipline and dismiss any employee who uses cannabis or is under its influence whilst at work.
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The Employee failed to have a proper appreciation of the importance of the strict application of the Policy and wilfully committed misconduct. This was highlighted by her unequivocal refusal to stop consuming cannabis.
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When new legislation is implemented, it is crucial for businesses and employees to understand how it will impact each of them right now and influence future practices. At the beginning of this month, John Botha, CEO of Global Business Solutions, led the webinar hosted by the Temporary Employment Services Division (TESD) to unpack the latest placing of harassment in the Employment Equity Amendment Act. The TESD initiated the webinar to drive awareness on the full scope of harassment in the work place, and encourage a proactive approach to supporting the modern labour force. The webinar highlighted the need for employers to take a proactive approach with harassment, be aware of the extended definitions and types of harassment, consider how it applies to race, gender, disability and Lesbian, Gay, Bisexual, Transexual, Queer and others (LGBTQ+) as well as revising the all related company policies. Businesses should rightfully be spending significant time and energy to ensure compliance with new legislation. It is a priority not only from a legal perspective, but also from a civil one. Botha stressed that individuals can be held criminally liable if they are not alert about avoiding behaviours in the workplace that fall under harassment. This means watching not only what you say and do, but also what you post and share on social platforms. It comes as no surprise that sexual remarks and inappropriate advances fall under harassment. However, many are unaware that constant criticism, abusive language, humiliation, and ostracising actions towards an individual also constitutes as harassment and has serious consequences, according to the latest legislation.
44 Contents Page newUnderstandinglegislation on workplace harassment
Employers should regard all forms of harassment as unfair discrimination and constituting a barrier to equity and equality in their company. “There is no hierarchy between physical, psychological, emotional and sexual abuse,” emphasises Botha. In the modern workspace, it is no longer business as usual. Employers must utilise emotional intelligence to support a younger and more diverse labour force. Millennials, born between
About The TESD
45 Contents Page 1981 and 1996, are currently the largest living generation. The millennial employee will make up 75% of the workforce by 2025 and has different needs compared to previous generations. To keep with the times, business owners need to create a culture that makes their workers feel part of a team, accepted, heard and respected. Ensuring this psychological safety is essential as part of management skills right now and going forward. This knowledge needs to be implemented into clear action. The onus is on employers to have a solid harassment procedure and fully inform employees of them. It should be unacceptable in any workplace for temporary or permanent employees to be uncertain on how, and to whom, to report workplace sexual harassment to. The procedure should begin with any conduct immediately being brought to the employer’s attention. Next, the complaint is confidentially investigated by consulting relevant parties. Expert advice and counselling should be given, and definite steps should be taken to eliminate any form of harassment. Lastly, complainants are formally or informally informed (depending on the gravity of the incident) and the perpetrator is approached. A serious matter is lodged either internally or external recourse is followed with the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Court and Equality Court (PEPUDA). The Temporary Employment Services Division (TESD) continues to ensure compliance and credibility of its members in all areas of legislation for over 28 years. Their latest webinar shows that whether you are a major or minor employer, making sure you have clear channels to report misconduct and have a no-tolerance policy towards harassment is crucial to promote not only a successful business but contributes to bettering our communities.
Media Contact Details: Client Rep.: Christa Smith I christa@associationadministrator. Agencyco.za Rep.: Brad Watridge I brad@hotmustard.co.za I Mobile: 074 793 9338
The TESD provides temporary employment service providers with a stakeholder forum to regulate this specialised industry to serve the needs of their clients and to protect the rights of their candidates in a legally compliant environment. Since 1994, the TESD has and continues to ensure the credibility and compliance of its members who provide their services to a variety of employees and employers centred in the construction industry. The TESD also supports members operating in secondary industries namely agriculture, raw materials, manufacturing, construction, and the service industry. The TESD recognized the need for a platform where temporary employment service providers are given a voice and become part of a credible representative body in the eyes of stakeholders such as employees, clients, contractors, bargaining councils and trade unions. The TESD strives to improve the image of labour brokering and uphold the labour ethics and laws, thereby increasing member credibility and compliance.
In Bernadette Enever v Barloworld Equipment, a division of Barloworld South Africa (Pty) Ltd, case numbers JS 633/20 and JS926/20, as delivered on 01 June 2022, the Applicant was dismissed for testing positive for cannabis, or dagga.
The Applicant claimed that she was discriminated against and that her dismissal was automatically unfair. Case Summary The Applicant was employed by the Respondent from 11 April 2007 until she was dismissed on 30 April 2020. At the time of her employment with the Respondent, the Applicant occupied the position of Category Analyst, which is a typical office or desk job. Her position was not safety sensitive in that she was neither required to operate heavy machinery nor drive any of the Respondent’s vehicles. At the time of her dismissal, she had a clean disciplinary record. The Applicant submitted that she suffered from severe constant migraines and anxiety, which affected her general well-being and caused sleep disorders. She was prescribed medication by her general practitioner for pain and anxiety, which proved to have some adverse side effects on her. In about May 2012, the Applicant was prescribed pharmaceutical drugs that required the daily consumption of about ten pills, including sleeping tablets. Following the Constitutional Court case of Minister of Justice and Constitutional Development and Others v Prince and Others 2018 (6) SA 393 (CC), which decriminalised the use of cannabis in private spaces, the Applicant gradually moved away from consuming pharmaceutical drugs to using cannabis or CBD oil and smoking rolled cannabis as an alternative to achieve the same results. It took the Applicant a period of about three months to reduce her daily consumption from ten pills to four, and she kept titrating her doses until she was completely weaned off the pills so that she could continue using only cannabis. The entire transition period took her between six to twelve months.
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USING DAGGA FOR ANXIETY resulted in unemployment
The Applicant also used cannabis recreationally by smoking rolled cannabis every evening to assist with insomnia and anxiety. Her physical and mental health improved as a result thereof. She testified that smoking cannabis made her feel closer to God, which also assisted her in her quest to resolve internal struggles. These averments remained unchallenged during the trial of the case. The General Safety Regulation 2A of the Occupational Health and Safety Act, 1993 (OHS), determines that an employer may not allow any person who is or who appears to be under the influence of an intoxicating substance to access the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace. Whilst the general and practical theory of intoxication can be defined as the negative behaviour and impaired physical effects By Jan du Toit
Considering the aforementioned Regulation, the Respondent introduced an Alcohol and Substance Policy and the Applicant was, at all material times, aware of its provisions. In terms of the Respondent’s amended Alcohol and Substance Policy, and in order to gain biometric access to the Respondent’s premises, employees are required to undergo medical tests. On 29 January 2020, the Applicant was subjected to a medical test, which was in the form of a urine test. The test came back positive as the drug cannabis had been detected in the Applicant’s system and as a result, the Applicant was informed, on the same day, that she was unfit to continue to work and was instructed to immediately leave the premises. The Applicant was immediately placed on a 7-day “cleaning-up process”, which entailed that the test would be repeated on a weekly basis until the Applicant is cleared by testing negative. The Applicant’s accumulated annual leave was to be utilised in lieu of the time off while on the “cleaning-up process”.
The Applicant was also not in possession or suspected of being in possession of cannabis whilst at work on the Respondent’s premises. During the period from 29 January to 28 February 2020, the Applicant was denied access to the Respondent’s premises as her further tests continued to detect cannabis in her system. This was the case because the Applicant continued to consume cannabis for both medicinal and recreational reasons. The Applicant was accordingly charged with breach of the Respondent’s Alcohol and Substance Abuse Policy and on 25 February 2020, a notice to attend a formal disciplinary hearing was issued to her. At the disciplinary enquiry, the Applicant pleaded guilty to testing positive for cannabis. During mitigation, the Applicant indicated that she did not plead guilty to being intoxicated or impaired at work. She also indicated that she was never “stoned” at work and reiterated the importance of her smoking cannabis every evening as well as using CBD oil to reduce her dependency on pharmaceutical medication. Notwithstanding the aforementioned, the Respondent instructed the Applicant to undergo a “cleaning-up process” and that she would continue to be tested every seven days until she tested negative.
47 Contents Page caused by the consumption of alcohol, drugs or other such substances, the legal theory, on the other hand, is quite different. Alcohol/drug intoxication is defined legally according to a person’s blood alcohol/substance level, which can only be determined through testing - be it of urine, breathalyser or blood samples.
The Applicant was accordingly charged with breach of the Respondent’s Alcohol and Substance Abuse Policy and on 25 February 2020, a notice to attend a formal disciplinary hearing was issued to her “
At the time of undergoing the urine test, the Applicant was not impaired or suspected of being impaired in the performance of her duties, nor was she performing any duties for which the use of cannabis would constitute a risk to her own safety or that of her fellow employees.
The Applicant obtained the services of a law firm to engage the Respondent about its alleged unfair, discriminatory and fundamentally flawed Alcohol and Substance Policy.
Following this, the Respondent sent a meeting request to the Applicant to convey the outcome of the disciplinary hearing, which was summary dismissal. The chairperson of the disciplinary enquiry was of the view that a final written warning would not have served any purpose due to the fact that the Applicant unequivocally refused to refrain from using cannabis. The Applicant approached the Labour Court in terms of section 187(1)(f) of the Labour Relations Act, 1996 (LRA), and section 6(1) of the Employment Equity Act, 1998 (EEA), claiming unfair discrimination and automatic unfair dismissal on arbitrary grounds. The Applicant pinned her case on two legs. Firstly, on section 6 of the EEA and secondly, on section 187(1)(f) of the LRA. Section 6(1) of the EEA deals with the prohibition of unfair discrimination.
According to this section, no person may discriminate directly or indirectly against an employee on the basis of 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 and birth, or on any other arbitrary grounds. In this regard, the issue of the Applicant falls within the ambit of arbitrary grounds. Whilst not all forms of discrimination are unfair, section 11 of the EEA requires an applicant to produce some facts to prove that unfair discrimination has taken place. An applicant is not absolved from presenting and proving its case if and when unfair discrimination is alleged. Similarly, if an applicant is alleging automatic unfair dismissal as a result of the discrimination, which are interdependent, the applicant has the responsibility to also present credible evidence to support its automatic unfair dismissal claim. This means that if such an applicant is able to overcome the hurdle of proving unfair discrimination, then the automatic unfair dismissal case will be afforded a hearing. The evidence led that the Respondent has an Alcohol and Substance Abuse Policy was not challenged, neither that the Applicant was at all material times aware thereof. In its quest to show that the said policy was applied consistently and did not differentiate between its employees based on whether they used alcohol or other substances, the Respondent led evidence that all employees who test positive for either alcohol or other intoxicating substances are immediately declared unfit for work and denied access to the Respondent’s premises. The unfit employees are then afforded an opportunity to undergo a “cleaning-up process”, be it for hours or days, whereafter they are retested. There was no evidence presented by the Applicant suggesting that the Respondent treated other employees who had tested positive for a particular substance, such as dagga, differently from how the Applicant was treated. Unlike alcohol, which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days. This may mean that a zero-tolerance approach may be unconstitutional as it will result in an employee not being able to use cannabis at home in their private time. In addition, tests for cannabis do not demonstrate the degree of impairment of the employee’s ability to perform her or his duties. Cannabis may remain detectable in the bloodstream for days after consumption. It can be detected for a few days after occasional
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49 Contents Page consumption, up to weeks for heavy users and up to months for chronic users. Unlike alcohol, one cannot determine the level of impairment based on test results. Proof of impairment is, therefore, not required as with alcohol; it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature.
In this regard, the Applicant testified that she is a chronic user, and she will, thus, never test non-negative to the Respondent’s tests. It was further held that employees are indeed entitled to use cannabis in their own space and for recreational purposes. Similarly, employees are entitled to consume alcohol in their own private space and time. This, however, does not mean that an employee who consumed alcohol the previous night and tested positive the next day would be absolved from wrongdoing. The employer’s policy will be applicable across the board. This argument by the Applicant failed as it is not sustainable. The Applicant raised what she perceived as justifications for the commission of her misconduct as a Constitutional Theright.Court also found the Applicant’s submission that she used cannabis for medicinal reasons not persuasive. She did not indicate this to her employer and waited until she got caught to raise it. There was also no persuasive evidence presented to the Court that the Applicant indeed had a medical condition. It was incumbent upon the Applicant, in appreciating and respecting the Respondent’s policy, to volunteer her medical condition, especially in view of the fact that it was rather obvious that the consumption of cannabis would ultimately and most definitely lead to a positive test and consequently, to contravention of the policy. The Applicant deliberately omitted to do this and only sought to bring it to the attention of her employer in an attempt to justify her contravention of the policy. The Applicant presented no proper medical evidence. As such, her evidence regarding her medical condition and how the use of cannabis could possibly serve to treat it or provide her with relief was unsubstantiated, and in essence, required the Court to accept her word as layperson on such a complex medical issue, or even to speculate. Whether the Applicant smoked or consumed cannabis after hours was also held to be irrelevant. The Respondent led evidence that, owing to the highly dangerous operations on its premises, it had a zerotolerance approach to working under the influence of alcohol or drugs. The Constitutional Court judgement does not offer any protection to employees against disciplinary action should they act in contravention of company policies. Although the Applicant herself did not engage in such dangerous activities, the Respondent has a workplace that is fraught with danger. The Applicant tested positive for cannabis and continued to test positive simply because of her perpetuated act of consuming the substance, and she made it fairly clear that she would not refrain from doing so. The conduct of the Applicant was held to have been pure misconduct and nothing about it had the elements of discrimination and/or automatic unfair dismissal. The Applicant’s claims for both the automatically unfair dismissal and unfair discrimination were unsuccessful.
Jan du Toit is a Director at Labour Guide. This article does not constitute legal advice. For an informed opinion and/or assistance with a labourrelated matter, you are encouraged to arrange a formal consultation with the author.
CAN EMPLOYERS SUE FOR FINANCIAL LOSSES INCURRED DURING A PROTECTED STRIKE?
By ENS “ SACCAWU SUED ZAR9 383 454.57 for compensation sought for losses the Companies claim they suffered during the course of a protected strike called by SACCAWU.The Companies ded that, during the strike, SACCAWU’s members committed various offences and that their conduct; • was not peaceful; • did not comply with the provisions of the LRA; • did not comply with the COVID-1 regulations in force at the time; • and, did not comply with picketing rules determined by the Commission for Conciliation,Mediation and Arbitration.
The possibility of strikes, whether protected or unprotected, is an ever-looming threat to South African businesses. These strikes almost always result in some form of financial loss for the business and leave them with very little re course for recovery.
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Section 68(1)(b) of The Labour Relations Act, 1995 (“LRA”) provides that, if an employer has suffered loss as a result of an unprotected strike or conduct in furtherance of such a strike, it may claim compensation that is “just and equitable” from the responsible party. However, the question arises whether the section also permits an employer to claim compensation if the strike is protected? This question was consid ered in the recent decision of the Labour Court in Massmart Holdings Ltd & others v South African Commercial Catering and Allied Workers Union. In this matter, various companies within the Massmart Hold ings group of companies (“the Companies”) sued the South African Commercial Catering and Allied Workers Union (“SACCAWU”) for the payment of compensation in terms of section 68(1)(b) of the LRA totalling ZAR9 383 454.57; this being compensation sought for losses the Companies claim they suf fered during the course of a protected strike called by SACCAWU.
51 Contents Page SACCAWU excepted to the Company’s statement of claim on various grounds. Of most importance for the purposes of this ENSight was the argument that the Labour Court does not have jurisdiction to consider claims for compensation in terms of section 68(1)(b) if the strike is protected.
• Section 68(1)(b) states that the court has jurisdiction to order the payment of just and equitable compensation for any loss attributable to an unprotected strike “or conduct”. The term “conduct” is not explicitly linked to an unprotected strike. Neither is it qualified as being conduct in furtherance of an unprotected strike.
Conclusion The importance of this case is that it demonstrates that employers can now rely upon section 68(1)(b) as a remedy to claim compensation for losses attributed to a strike that have subsequently turned violent and resulted in various offences.
We advise that employers should insert into their picketing rules specific provisions of the LRA that would be breached or other offences that would be committed if a protected strike turns violent. This would assist with establishing an offence and as such proving that the immunities in terms of section 67 do not apply.
Reviewed by Peter le Roux, an Executive Consultant in EN Safrica’s Employment department.
Kerrie-Lee EmploymentOlivier|Associate
The Labour Court rejected this argument on the basis of its interpretation of section 68(1)(b). It argued as follows:
In closing, the court stated that: “[22] …it would be anomalous if an aggrieved employer or union was entitled to pursue a claim for compensation in this court under section 68 for loss attributable respectively to a strike or lockout that does not comply with Chapter IV but not for loss attributable to conduct that constitutes a breach of the same Chapter, simply because the strike or lockout is protected.”
• Section 67(6) of The LRA gives unions and their members’ immunity from any civil legal proceedings in respect of conduct in contemplation or furtherance of a protected strike. However, this does not apply to unlaw ful conduct in contemplation or furtherance of a protected strike.
• Section 69 of the LRA regulates the right to picket and empowers the Labour Court to intervene in disputes concerning pickets. It may make a variety of orders and these are expressly stated to be “in addition” to any re lief contemplated in section 68(1) of the LRA.
52 Contents PageLET US TAKE CARE OF YOUR INDUSTRIAL RELATIONS AND LABOUR LAW NEEDS TRAINING CONSULTANCY PUBLICATIONS Training and consulancy Publications Contact our Experts We consult and train on any of the matters below: • Main Agreement; • Grading; • Chairing disciplinary enquiries; • Shopfloor; • Arbitration; • Basic Conditions of Employment Act / employment contracts; • Sick Leave and Absenteesm; • Equal Pay for Equal Value Provisions; • Labour Law matters; • Dispute resolution; • Conciliation; • Labour Court; • Retrenchments. Visit our website for a range of Industrial and Labour publicationsLaw Industrial Relations Services Louwresse Specht Industrial Relations Executive louwresse@seifsa.co.za Michael Lavender Industrial Relations Manager michaell@seifsa.co.za Vuyiswa Miya Industrial Relations Manager vuyiswa@seifsa.co.za
As companies rebuild themselves following the devastating effects of the COVID-19 pandemic, which resulted in loss of lives across all sectors and a severe economic impact, there are many competing priorities. When the country’s last COVID-19 protocols were removed in the second quarter of the year, employment and labour minister, Thula Nxesi cautioned employers against taking a casual attitude towards health and safety in their workplaces.
CULTIVATING A CULTURE OF SAFETY AND PREVENTION TO INDISEASESINJURIESOCCUPATIONALCURTAILANDTHEWORKPLACE
By Dr Jessica Hutchings
Occupational Health and Safety (OHS) is an important strategic business objective in the workplace but sadly it often takes a backseat. Safety practitioners have to fight against other competing business priorities, particularly the perception that implementing OHS policies and programmes is an added expense when in fact, it makes business sense. OHS is also a legal, moral and ethical matter. Failure to consider safety as a strategic business imperative can result in direct and indirect costs which will impact on productivity and the bottom line.
The prevention of injuries and occupational diseases in the workplace, under the Compen sation for Occupational Injuries and Diseases (COID) Act 1993, is a legal requirement. Companies are required to prevent accidents and occupational injuries and diseases as well as have rehabilitation programmes in place that look after employees following an injury or an occupational disease as per the National Amendment Bill of the COID Act. In instances where an employee cannot return to work, for example if they have lost a limb and are not able to continue executing their job, the rehabilitation programme requires that they be reskilled to do alternative work or find vocational work. In companies that lead by creating a healthy and safe work environment, OHS is deeply entrenched and inculcated in the company’s culture. Safety is not an ‘add-on’ or ‘a nice to have’ but is the way things are done. Within these organisations, workplace safety is paramount and finds expression in their integrated financial reports, benefits their shareholders as well as all their stakeholders and is evident in everything they do. It takes leadership buy-in and when supported by the most senior of leaders in an organisation, it is easier to cascade. Rand Mutual Assurance (RMA) is a leading mutual insurer for work-related injuries and has been handling claims to the Compensation Fund on behalf of the mining industry for 128 years. RMA recently obtained the license for the Metals industry (formerly known as Class Xlll). This sector is critical to RMA in that Metals employers are in the region of 25,000 companies employing just under 200 000 employees and are responsible for 1,5% of the nation’s GDP according to South African Iron and Steel Institute sec retary-general Charles Dednam, in an opinion piece published in Engineering News. Despite South Africa being one of the most regulated nations when it comes to OHS legislation, the rate of injuries and diseases over the period between 2015 and 2021, according to RMA’s data from claims, was higher than the international benchmarks in the mining and met als sectors. While the number of injuries per 1000 lives showed a steady decrease, coming down from 35,97 per 1000 lives in 2016 to 20,28 per 1000 lives in 2020 in met als, these numbers remain deeply concerning, and one life lost is too many. Pre-empted by the COID Amendment Bill, currently out for public comment, RMA launched a Prevention
A pilot for 36 months, the programme is holistic and is largely data driven by our claims data and experience. We include a financial wellness element into this prevention programme. This is based on the data that informs us that when employees are under financial stress, be it from debts, garnishees or stokvels, the stress may cause employees to become distracted or stressed resulting in their minds not being focused on their jobs, contributing to accidents and/ or injuries. Psychological safety, a popular concept today, is important for workplaces to attend to given the number of stressors we all face beyond just the financial ones. We need to take occupational safety seriously, similarly to the mining industry, and view it from a modern approach. For too long the focus has been stuck at an employee level, particularly at why they do not follow company rules. Peo ple don’t come to work to deliberately hurt and injure themselves or their peers. Yet, we are quick to attribute accidents to employees’ failures such as human error and not following procedures and this is often followed by sanctioning the erring employee. We need to delve deeper and ask why an employee did what they did, and what made sense to them at the time. You might discover that it could be because procedures were written by people who don’t do the particular job and whose first language is English, yet they expect an employee to implement them, even when they don’t work in prac tice, are unrealistic or are not understood due to a language barrier between the authors and those expected to imple ment.
“We partner with RMA members, and together with other stakeholders such as unions and employees, we assist with the design and implementation of an OHS system in the workplace, to help our clients comply with legislation.
and Rehabilitation Programme this year to support and strengthen its clients’ OHS meas ures. The prevention programme is crucial to enhance employee productivity for employers and improved wellness for employees. Ultimately, a reduced in cident rate has a positive impact on the claims experience and contrib utes to healthy and stable families. We partner with RMA members, and together with other stake holders such as unions and employees, we assist with the design and implementation of an OHS system in the workplace, to help our clients comply with legislation. Our role is to complement our mem bers’ existing occupational health and safety systems and contribute towards saving lives.
Consequently, we have learned that employees become resistant when they are constantly blamed resulting in a perpetual, negative safety culture. As we move forward, we need to bring all employees into the system and follow a participative approach when designing health and safety systems. It’s high time we move away from blaming employees, which is old school and doesn’t bode well for the creation of a sustainable safety culture. As an example of why leadership is fundamental to instilling a safety culture, I went on a plant tour with the company’s senior ex ecutives and one of the executives was quick to publicly reprimand an employee for not wearing their visibility jacket. I turned and asked the same executive about their own lack of a visibility jacket. As leaders we need to walk the talk and leadership must commit to safety to create visible felt leadership. It’s about education and awareness starting at the very top and making inroads bottom up and top down. Studies show that once you get the CEO’s buy in, it becomes easier for it to filter down. Another avenue that organisations overlook are unions, who are employees’ support base and also have to drive the health and safety of their members. At the end of the day the employees on the shop floor, front line or at the coal face know best, and wouldn’t want to harm themselves or their peers, and their input must be sought and considered. Hence, I advocate for System Safety as the whole system must work together for the benefit of healthy and safe workplaces. While it might seem difficult, it is certainly doable. We must not wait for major disasters and for lives to be lost before waking up and responding by putting preventative measures in place that ought to have been in place, tested and effective. Disasters come with exorbitant legal, reputational, and financial cost implications that could be avoided. If we are proactive in how we manage health and safety, and adopt a systems approach, we can all reap the benefits. Dr Jessica Hutchings is the Head of Prevention at RMA. She special ises in accident investigations and has a wealth of experience in Human Factors and Ergonomics research and practice, and holds a PhD in railway accident investigations from Wits University.
Implementing short-time for unforeseen contingencies including power outages - 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.
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Many companies are having to adopt strategies to keep their companies viable, difficult trading and economic times, and often companies are faced little alternative but to implement strategies to reduce costs. Some these strategies not easy implement management option last resort, option ensure the company
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survival. The Main Agreement provides strategies which companies often consider during difficult times, these include: 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. 1 2 3 4 5
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- titled: Here are the rules around paying workers during load shedding in South Africa
The focus of this article will be on short-time.
- As power utility, Eskom, has confirmed that load shedding will continue for some time, the question that arises is what steps can employers take to reduce the negative impact load shedding has on their operating models. On-site working models (which is the model in the manufacturing and engineering sector) Due to the nature of work to be performed, it may not be possible for all employees to work remotely. Where employees are required to work on-site, and the employer does not have a secure power supply, the employer will be required to pay employees during periods of load shedding, regardless of whether or not the employees are able to perform their duties.
The lessor used lay-off is easier to implement, and leads to the temporary unpaid suspension from work of employ ees 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 pay ment made during the lay-off period – and is therefore not very popular with employees and trade unions. 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 with implementing 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.
There was an article compiled by - Bowmans South Africa
- While the move to remote and hybrid working arrangements resulted in certain benefits, the implementation of load shedding has created a new challenge for employers to manage in the modern workplace.
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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.
- This is because during periods of load shedding, employees who are required to work from home may not have a backup power supply and employees who are embracing the hybrid work model may similarly not work during periods of load shedding should they be scheduled to work from home.
Some of the key aspects of that article for our consideration are: - The modern workplace has gone through significant changes with businesses being required to adapt to new ways of working. Many employers have revisited their operating models and have since adopted remote or hybrid working arrangements, depending on the nature of their operations, says Nadine Mather, partner, Bowmans South Africa.
Many areas have experienced load shedding twice a day, and for the first time, Eskom has burdened South Africa with stage 6 load-shedding, with concerns at times that it could even increase beyond that, and there was talk about avoiding a total black-out (we have heard that this is when Eskom turns the sun off) - as Eskom needs to reduce demand for electricity in order to stabilise the electricity sys tem nationally. Eskom currently finds itself in a position where the demand for electricity exceeds the available sup ply. In order to manage the situation in the best possible way, planned supply interruptions have been implemented.
Background to the crisis
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Over and above this various areas are affected with power interruptions that can be caused from technical problems at substations and cable theft. Employers who receive their electricity directly from Eskom will find information of possible outages on www.eskom. co.za. Employers who are supplied by their local municipali ties, however, will have to obtain load shedding information from the municipal electricity departments.
A large number of member companies have contacted SEIFSA regarding Eskom’s current load shedding pro gramme. Eskom resumed load shedding after experiencing technical difficulties at a number of generating units, coupled with a low generation capacity reserve margin and an unprotected strike. The reasons for Eskom’s misfortunes, which has a tremendously negative impact on the economy and the nations morale, seem to be many - whether its nearly 30 years of poor planning and maintenance, gross mismanagement and incompetence, poorly implemented (perhaps even incorrectly and unfairly implemented) BBE and EE (with a narrow and damaging focus on quotas), po litical interference and state capture, widescale criminality, fraud and sabotage in its ranks and its contractors, being overstaffed by 25 000 to 30 000 employees whose average salary is around R750 000 a year – but certainly these have left Eskom in the dire condition that it is.
This is because the employment relationship is a reciprocal one in terms of which an employer’s obligation to pay arises when the employee tenders her/his services. Thus, where employees are available to work but the employer cannot provide the employees with work due to load shedding, the employer is still obliged to pay the employees concerned. In these circumstances, and to the extent that there is scheduled load shedding, employers can consider adjust ing working hours or introducing procedures that apply to interruptions of productions to minimise the effects of load shedding and loss of working time. - This will, however, normally require the agreement of employees or their representative trade unions, unless load shedding is regulated at an industry level such as in the metal and engineering industries. If this is not possible, employers can consider using the load shedding periods to conduct working activities that may not require electricity, such as employee training or staff meetings. A failure to adequately regulate load shedding may result in an employer having to restruc ture its operations and retrenchments may accordingly become unavoidable. By Nadine Mather, partner, Bowmans South Africa - Let us now focus on this point from the article aboveThis will, however, normally require the agreement of employees or their representative trade unions, unless load shedding is regulated at an industry level such as in the metal and engineering industries – and let us un pack the key elements of the agreement that is found in the Main Agreement’s short time section 7.
When there is not enough electricity available to meet the demand from all Eskom’s customers, it will be necessary to interrupt supply to certain areas. This is called load shedding.
Load shedding is: - A last-resort measure. Only when all other options at Eskom’s disposal have been exhausted, such as running its power stations at maximum capacity and interrupting supply to industrial customers with special contracts, will Eskom cut supply to other customers. A controlled way of rotating the available electricity between all customers. Load shedding schedules are drawn up to ensure that a few areas do not bear the brunt of the shortages. By spreading the impact, affected areas are not interrupted for more than two hours at a time, and in most cases customers can be informed of interruptions in advance.Aneffective way to avoid blackouts. Shortages on the electricity system unbalance the network, which can cause it to col lapse. By rotating the load in a planned and controlled manner, the system re mains stable.
Management action - in dealing with load shedding, general power outages for other reasons, shortage of work / materials, any other justifiable contingencies and / or cir cumstances beyond the control of the employer: SEIFSA recommends that affiliated member companies adopt the following course of action, informed by Section 7 of the Main Agreement, in dealing with load shedding, general power outages for other reasons: SHORT-TIME For the purpose of this clause, “short time” means the implementation of reduced working time, i.e.
What is loadshedding?
(b) The employer shall, as far as practicable, spread the work available amongst the employees affected.
The issue at hand: The issue at hand is that it is impossible to know what Es kom’s load-shedding will be a week in advance, namely knowing early in a week, what load-shedding the company will experience on the following week/weeks. This is defined as unplanned and unforeseen load-shedding. This being
(iii)Where the employer does not implement short time in response to a planned or foreseen load shedding, and employees report for work and are sent home by the employer, they will be entitled to 8 hours payment in re spect of such day.
(d) An employer shall, give the Regional Council, affected employees and affected party trade unions two clear working day’s notice of the intention to increase or re duce short time hours.
(e) An employer shall give the Regional Council, affected by the employees and affected party trade unions five calendar days’ notice if short time is to continue for more than six weeks from weeks from the date of original implementation. It is agreed that during this time peri od, the employer shall consult with the representatives of the party trade unions and/or elected shop stewards on the continuation of short time or alternatives as contained in the Security of Employment provision as set out in Annexure A of this Agreement.
(d) The purpose of the five day notification period is to al low the employer and the representatives of the trade union and/or elected shop stewards to meet in order to consult on the manner in which the short time working will operate. This may include meetings convened on a Saturday and/or Sunday.”
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Notification: (a) An employer shall, subject to 2(b), give the Regional Council, affected employees and affected party trade un ions five calendar days’ notice of the intention to implement short time hours. The employer shall, during the five calendar day notification period, consult with the representatives of the officials of the trade union and/or elected shop stewards on the manner in which the short time working will operate. The union officials shall make themselves available to meet with the employer over the five day period and, where not available within this time period, then the employer must consult directly with the elected shop stewards.
(b) For the purposes of this clause, the notice prescribed in subclause (1)(a) SHALL NOT APPLY in respect of short time working caused by unforeseen contingencies and/ or circumstances beyond the control of the employer including but not limited to power problems, interruptions and/or failures, machinery breakdown, theft, fire and/or flood: Provided that; (i) Where the employer elects to send employees home they shall receive not less than four hours’ work or pay in lieu thereof, in respect of such day; and (ii) Where the employer believes resumption of work can be effected and expressly instructs his employees to pres ent themselves for employment on a particular day, they shall receive not less than four hours’ work or pay in lieu thereof, in respect of such day.
(c) An employer shall not be required to pay wages to his employees, except for the periods actually worked.
(c) Unforeseen contingencies and/or circumstances referred to above shall not include inclement weather.
Webinar: Retrenchments, short-time and lay-offs – do it right!: 24 August 2022
Stay in touch with your experts Members should feel free to discuss any course of action with SEIFSA’s Industrial Relations Division staff members, who are available to provide advice or assistance at the con sultative meetings to Management in this regard. They can be reached on (011) 298-9400. (To note that training is pro vided in these areas, whether in-house or on-line webinars.)
Bookings: sales@seifsa.co.za and 011- 298 9400
Possible scenarios (examples): In all of the examples, it is important to note that employees do not lose a shift for the purpose of calculating Leave Pay and Leave Enhancement Pay. Employees have clocked in and have worked for two (2) hours when the power supply is cut off, and is unlikely to be restored. Management decides to send employees home: Payment: for four (4) hours of work. Employees have clocked in and have worked for six (6) hours when the power supply is cut off and is unlikely to be restored. Management decides to send employees home: Payment: for six (6) hours of work. In addition to the above, SEIFSA recommends that Management explores the possibility of arranging mutually accept able alternative working-in time arrangements to the load shedding by, for example, reaching agreement with em ployees and shop stewards to make up for lost hours over week-ends, clocking in early, working longer, agreeing that hours lost between the load shedding and the restoration of power be treated on the basis of no work, no pay, etc. 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 require ments 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.
63 Contents Page the case, will lead to sub-clause (b) being invoked, namely: the notice prescribed in subclause (1)(a) SHALL NOT APPLY in respect of short time working caused by unforeseen contingencies and/or circumstances beyond the control of the employer including but not limited to power problems, interruptions and/or failures, machinery breakdown, theft, fire and/or flood: (i) Where the employer elects to send employees home they shall receive not less than four hours’ work or pay in lieu thereof, in respect of such day; and (ii) Where the employer believes resumption of work can be effected and expressly instructs his employees to pres ent themselves for employment on a particular day, they shall receive not less than four hours’ work or pay in lieu thereof, in respect of such day.
64 Contents Page “When things go wrong, don't go with them.” Best ServiceCustomerAward The HealthWorkplaceandSafetyAward Company Artisan Training Award EnvironmentStewardshipAward Young ResponsibilityCorporateEntrepreneurAwardSocialAwardBusiness Resilience of The Year – (Covid) Business Woman of the Year Award Most InnovativeDigitallyCompanyoftheyearAward MostCompanyTransformedAwardAwardsCategoriesProjectsJanuary 2020- December 2021 www.seifsa.co.za/awards-for-excellence/Closingdate21October 202218NOV Awards Guideline
Categories are divided into the following groups: Projects; Business; Individual Awards entry closing date is subject to change but will be adequately communicated by SEIFSA
There are NO FEES payable for entries.
Entries open on the 01st July 2022 and Close 30 September 2022.
Finalists will be required to be interviewed by judges. Convenient times will be determined and insome cases site visits will be coordinated.
The awards event will take place 18 November 2022
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The majority of the judging process is based on qualitative criteria and not a quantitative process. Two entries in a category are sufficient to maintain that category. One entry in a category may be awarded a COMMENDATION if the judges believe it, is a worthy single entry. Should the single entry not be valid, the category will be withdrawn for that year. Requirements of all entrants: Entrants must disclose BBBEE status. (Applies to Companies/organisations) Entered project must be from Southern African regions. Entered project must have been fully completed within the awards time period. A signed declaration from client is required. Only projects completed between 1 January 2020 and 31 December 2021 are eligible for entry into the projects award categories for 2022. Projects must be completed on time, within budget and to the satisfaction of the client, and abide by all health and safety regulations.
Depending on the description and criteria of the category, the finalists may nominate themselves or be nominated by a third party.
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While the decision (and the views expressed therein) may be welcomed by many who have voiced their opposition to workplace vaccination policies, employers who have such policies in place need not necessarily be alarmed.
In a recent decision of the Commission for Conciliation, Mediation and Arbitration (CCMA) in the matter between Kgomotso Tshatshu and Baroque Medical (Pty) Ltd, the commissioner found the retrenchment of an employee for refusing to comply with the employer’s vaccination policy to be substantively unfair, and awarded the employee the maximum compensation, equivalent to 12 remuneration.months’
CCMA DECIDES THAT AN EMPLOYER’S VACCINATION POLICY IS UNREASONABLE AND UNCONSTITUTIONAL SHOULD EMPLOYERS BE CONCERNED?
In his award, the commissioner expressed the view that an employer has ‘no right to formulate any Covid-19 Vaccination Mandate’ in the workplace, as this is the prerogative of Government; and that ‘Mandatory Vaccine Policies are not only unreasonable, but they have no place in our labour market’.
The decision is only one of many to have come out of the CCMA recently and does not create binding precedent. Further, while the ultimate outcome reached on the fairness of the employee’s dismissal may be reasonable in the circumstances of the case, there are, in our view, a number of issues with the commissioner’s findings.
In terms of the Constitution, everyone has the right, among others, to bodily and psychological integrity and there is no requirement for employees to provide any reasons in this regard – they can simply exercise the right. Referring to section 36 of the Constitution, the commissioner reasoned that the employer’s vaccine mandate was like a ‘law of general application’, in that it was a general rule applicable to all employees in the company. However, as a company rule is not a law passed through the parliamentary and constitutionally entrenched process, it does not enjoy inherent legitimacy and is open to challenges as to reasonableness and fairness in addition to the limitations imposed by section 36.
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Background to the case
The employer (Baroque Medical) introduced a compulsory Covid-19 vaccination policy at its workplace. In terms of the policy, vaccination was framed as an operational requirement, as it would reduce the time that employees spent away from work due to illness and ensure a safe work environment.
The policy required all employees to be vaccinated, failing which their services ‘may then be terminated for operational reasons’. It was recorded that there were no alternative positions or roles that did not require vaccination. Four employees were ultimately retrenched on this basis. The employee in this case, a senior inventory controller, refused to be vaccinated because of her fear of the vaccination, explaining that she had experienced a previous negative response to a flu vaccine 10 years earlier. She also objected on Constitutional grounds, namely her right to bodily integrity, stating that the vaccine was experimental. Baroque Medical required the employee to substantiate her refusal on medical grounds, but ultimately rejected the doctors’ notes she presented as being insufficient. Having rejected her grounds for refusing to vaccinate, the employer dismissed the employee and did not pay her severance pay. Findings of the commissioner The commissioner found the employer’s vaccine mandate to be an unreasonable rule. On this basis, the dismissal was found to be unfair. As for the process, the commissioner found that because the employer had chosen the route of retrenchment, it had to show that it went through a consultation process. Since it had already decided up front that any employee who refused to vaccinate would be dismissed, the consultations were largely lip-service.
In coming to his conclusions, the commissioner made, among others, the following findings: The State has not passed any legislation requiring all employees or citizens to vaccinate, nor have any state departments or the judiciary implemented compulsory vaccination policies for their employees. This is because doing so would amount to unfair discrimination and would be unreasonable.
The Consolidated Occupational Health and Safety Direction, which applied at the time of the dispute, required a risk assessment to be performed by the employer which could identify certain employees to be vaccinated and it did not provide for or permit a blanket mandatory vaccination policy.
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The employer did not produce a risk assessment or lead any evidence on it. Accordingly, the employer could not demonstrate a link between the rule and its objective.
“The commissioner does, however, rightly consider the reasonableness of the employer’s vaccination requirement with reference to its risk assessment and it appears that this may well be an area where the employer fell short.
Interestingly, in an earlier dismissal dispute involving one of Baroque Medical’s other employees (who had also been retrenched for refusing to vaccinate), a different commissioner accepted that the company had an appropriate risk assessment in place. It is not clear why the risk assessment was not produced by the company in the present case, but the decision highlights the importance of leading evidence in this regard.
The decision to introduce a vaccination policy remains one that must be based on each employer’s individual circumstances. It is clear from the applicable regulations that any employer’s vaccination rule must be informed by its risk assessment and the particular hazards and working conditions that arise in its specific workplace. These risks, and the measures that can reasonably be taken to reduce them, must also be considered in light of the prevailing medical science. Further, when it comes to the dismissal of an employee for failing or refusing to comply with an employer’s vaccination policy, employers will need to be able to show that the proper procedures were followed, both in introducing the policy and in exploring alternatives and reasonable accommodation measures. As is always the case, dismissal remains an act of last resort.
Concluding remarks
There can be no value or objective to a mandatory vaccination policy in circumstances where only a handful of companies have such policies in place and an extremely small number of people adhere to them. Employees are also not confined to the workplace and will be exposed to others in their daily lives. Accordingly, such a workplace rule cannot be reasonable. In our respectful view, the commissioner’s reasoning fails to appreciate the principle of subsidiarity and the fact that there is existing legislation (being the law of general application) which creates the legal framework for vaccination policies in the Inworkplace.particular, the commissioner failed to consider the employer’s duty, in terms of the Occupational Health and Safety Act, to create and maintain, as far as reasonably practicable, a safe and healthy working environment. The commissioner also failed to consider the Hazardous Biological Agents Regulations and the Code of Practice on Managing Exposure to SARS-Cov-2 in the Workplace, which further inform this general duty. We discuss this legislative framework further in our previous newsflash here. The commissioner does, however, rightly consider the reasonableness of the employer’s vaccination requirement with reference to its risk assessment and it appears that this may well be an area where the employer fell short.
The commissioner in this case has undoubtedly made his views clear on workplace vaccination policies. However, the sweeping statements about vaccination policies in general should not be taken as the final pronouncement on the issue.
The two-day Technical Vocational Education and Training (TVET) colleges Strategic Industry Partnerships Summit hosted by the Department of Higher Education and Training (DHET) in partnership with Northlink College is a catalyst to realise the call made by the President of South Africa, in the State of the Nation Address (SoNA). The call mandated the DHET to place 10,000 unemployed TVET graduates in workplaces from April 2022.
SEIFSA’s attendance, as an industry strategic partner to DHET at the summit was critical as the event brought together Government Officials including the Minister of Higher Education, Science and Innovation, Dr Blade Nzimande, TVET College Principals, Community Education and Training College Principals, SETA Chief Executive Officers. Representatives from business and industry were also in attendance. The attendance, participation and involvement in the summit is a clear
68 Contents Page ATTENDSSEIFSA THE SUMMITPARTNERSHIPSINDUSTRYSTRATEGICTVET2022
SEIFSA was represented at the conference by the Management team of the SEIFSA Training Centre (STC) - Paulos Mahlangu, Rajendra Rajcoomar, Preggy Chetty, as well as SEIFSA’s Executive team of Marketing, Sales and Communication, Nuraan Alli and Human Capital and Skills Development, Zizile Lushaba.
• The expansion of workplace-based learning opportunities for TVET college students;
• A call to industry to open its doors to Student placement and Lecture development in order to adapt to the 21st century workplace critical demands;
• The need for strategic partnerships for infrastructure development and adequate equipping of TVET training facilities;
• The Minister’s directive to all TVET college principals on the newly signed performance agreements which include industry partnerships as one of their key performance indicators, explaining that the white paper for Post-School Education and Training (PSET) requires Work-Integrated Learning (WIL).
• The need to align TVET college admissions with industry requirement at provincial and national level;
• DHET’s commitment to assist in introducing entrepreneurship programmes in TVET colleges to foster entrepreneurship in South Africa as well as youth employment;
• A call to Industry to take ownership of skills production in South Africa to ensure continuous alignment between TVET’s and industry.
The following key outcomes were noted from the summit:
SEIFSA represented by Paulos Mahlangu as a speaker at the summit indicated that South Africa is in dire need of critical technical vocational skills. He stressed the need to specialise so that South Africa does not outsource equipment repairs and maintenance to foreign countries. Additionally, Mahlangu elaborated that SEIFSA is forging partnerships with TVET colleges outside the Centres of Specialisation (CoS) project as
• Curriculum responsiveness, agility and resilience for a meaningful participation in the economy has to be strengthened;
indication to Government that SEIFSA as an Industry Federation does not see itself isolated from Government’s strategic priorities and imperatives as articulated in the DHET 2013 White Paper for Post-School Education and Training. The initiative also supports SEIFSA’s skills and human capital strategic objective, which seeks to promote the metals and engineering sector as one that young people want to join, have a clear career path and enjoy security of employment.
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The summit also included a gala dinner and an awards ceremony with the following categories:
The summit furthermore expressed its support in fighting gender-based violence and femicide in the workplace recognising that one key pillar in this battle is through skills development and the promotion of gender equality.
• Category A: Recognition of the best performing host employers • Category B: Recognition of the best performing TVET Colleges • Category C: College with the highest number of local and international partnerships
70 Contents Page this will facilitate the transfer of tacit knowledge, skills and expertise, countering the notion that TVET colleges are not capable of achieving the same standard as universities. The aim is for the partnerships to raise the national level of TVET colleges to the same exceptional standard observed in Gauteng.
MORE WORKPLACES TO FACE DG REVIEWS to enforce compliancewithEEAct
- follows several Director-General Reviews of designated employers in both the Private Sector and Public Sector that showed the need for advocacy. It was attended by executives of companies, union representatives, academics, and government departments. The Chief Director said in terms of the Director-General (DG) review process, there was a 94 percent non-compliance with the EE Act. She said in the year under review a total of 860 DG reviews were conducted nationally. The most DG reviews were conducted in KwaZulu-Natal (269); Gauteng (213) and the
The session held under the theme: “Transformation is a process and not an event”
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Wednesday, March 30, 2022 A total of 60 percent of employers in the current financial year ending Maarch 31 has been referred to prosecution for failure to comply with the employment equity (EE) legislation.
The Department of Employment and Labour Chief Director: Statutory and Advocacy Services, Fikiswa Bede, said that the department has noted with concern that there are more employers requesting settlement out of court. She said this conduct indicates that employers were budgeting for fines therefore the department will from now on also force the employers to foot the court bills. Bede was speaking at the department’s breakfast advocacy session with stakeholders held on Tuesday at Lagoon Beach Hotel in the Western Cape on the subject of compliance with the EE Act.
74 Contents Page least was North West (10). “When one looks at the current DG Review data the situation in regards to non-compliance with EE can only get worse,” she said. A Director-General may conduct a review to determine whether an employer is complying with the EE Act of 1998. The review involves requesting: • the employer to submit a current analysis or employment equity plan; • the employer to submit to the DG any book, record, correspondence, document or information that could reasonably be relevant to the review of the employer’s compliance with this Act; • a meeting with an employer to discuss its employment equity plan, the implementation of its plan and any matters related to its compliance with this Act; and • a meeting with any employee or trade union consulted in terms of section 16, work forum or another person who may have information relevant to the review. Failure to comply w ith DG’s recommendations/request, the DG may refer the employer for noncompliance to the Labour Court.
According to Bede, the areas of non• compliance relate to no proof of assignment of EE responsibility; • : EE managers not provided with the required resources and budget; • • • attendance register not indicating the constituencies represented by the committee members; an analysis conducted post the development of the EE Plan; and barrier analysis not matching a true reflection of what is happening in the workplace, and EE plans not projecting reasonable progress towards transformation in line with the goals and numerical targets set by the designated employers. “Transformation is a process, not an event. It begins commit to transformation,” Bede said. Department of Employment and Labour Inspectorwith the will, desire and a decision to General, Aggy Moiloa, said 24 years ago the EE Act was born, however, years later the legislation still displays the tendency of a n Moiloa said it was worrisome that there was no will to implement the legislation. Acting Directorewborn. General of the department, Marsha Bronkhorst, lamented the snail’s pace of transformation of workplaces. She said the department does not need to poli ce and enforce compliance. She appealed to employers to transform as enforcement was costly and time “Employers need to inculcate a culture of self-- consuming. regulation. Unfortunately, EE has been one of the legislation that has been flouted with impunity since its inception,” she said. SAnews.gov.za
DATE 2926231044221311121516161831 LOCATION Webinar/ F2F Webinar/Webinar/WebinarWebinarF2FWebinar/Face-to-faceWebinar/WebinarFace-to-FaceFace-to-FaceFace-to-FaceWebinarWebinarFace-to-FaceWebinarF2FF2FF2FF2F 2022Upcoming SEIFSA Workshops / Events To book, please email sales@seifsa.co.za (011) 298-9400 or make an online booking www.seifsa.co.za July - Aug DATE 2014121211116655511319252626272729 August MONTH July MONTH WORKSHOP/ EVENT HalfOneFullOneHalfOneDURATION5daysday1day1day1day1day1day1dayday5daysday3daysdaydayday2days3daysWORKSHOP/ EVENT DURATION Half day 1 day 1 day 1 day 1 day 1 day 1 day 5 days 1 day 1 Half131321111daydaydaydaydaydaysdaysdaydaysdayday LOCATION
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2022Upcoming SEIFSA Workshops / Events To book, please email sales@seifsa.co.za (011) 298-9400 or make an online booking www.seifsa.co.za Nov - Dec DATE 3028222210417889915151718296 MONTH December/November MONTH WORKSHOP/ EVENT DURATION One day Half day 5 OneHalfHalfOneHalfFullOneOnedaysday1day1day1day1dayday1daydaydaydayday2daysday3daysday LOCATION
2022Upcoming SEIFSA Workshops / Events For more information on these trainings, please email sales@seifsa.co.za (011) 298-9400 SAFETY, HEALTH, ENVIRONMENT & QUALITY
By partnering and collaborating with CSG Resourcing, we support our clients with capacity creation to focus on their core business. Integral to the success of CSG Resourcing, is our belief in building relationships, empowering our people and effective communication. CONTACT US ONE BRAND FOR ALL TALENT SOLUTIONS An extensive database of quality and reliable staff on short notice Quick deployment of staff to site One point of contact for all temporary employment services DAVE WALLACE Kwa-Zulu Natal Regional Manager M: +27 74 459 5555 E: dwallace@csggroup.co.za TK MAHLANGU E:M:RegionalMpumalangaManager+27670549838tmahlangu@csggroup.co.za ROUCHE KLEYNHANS RegionalGauteng Manager M: +27 76 337 7894 E: rkleynhans@csggroup.co.za JANNIE FOURIE Northern Cape Regional Manager M: +27 72 596 1655 E: jfourie@csggroup.co.za PIETER SCHOEMAN Western Cape Regional Manager M: +27 61 065 1516 E: pschoeman@csggroup.co.za HEAD OFFICE T:Pretoria+2712 362 9778 E: info@csgresourcing.co.za
