Chapter 1: Legislation

• Affirmative action is the policy and process of providing preferences in employment opportunities for previously disadvantaged people
• Bargaining council: negotiations between trade union representatives and employer organizations on labor-related issues such as demand for higher wages or improved working conditions
• BBBEE Scorecard: measures a business's compliance with Broad-Based Black Economic Empowerment, and a certificate is issued to the business that stipulates their BBBEE rating
• Compensation for Occupational Injuries and Diseases Act/COIDA: gives employees who are injured or contract diseases while on duty the right to claim compensation
• Broad-Based Black Economic Empowerment Act: introduced to ensure the full economic participation of previously disadvantaged individuals
• Basic Conditions of Employment Act/BCEA: sets the minimum standard for employment to promote fair labor practice
• Collective agreement: an agreement entered between a trade union and an employer organization concerning the terms of employment for specific matters
• The Employment Equity Act (EEA) aims to ensure equal representation in the workplace through affirmative action measures
• Positives of the EEA implementation:

  • Encourages consultation between employer and employees
  • Promotes equal opportunity and fair treatment in the workplace
  • Impacts positively on BEE ratings for businesses
  • Provides employees with legal recourse if they believe they have been unfairly discriminated against
  • Prevents unfair discrimination by ensuring the workforce represents the demographics of the country
• Negatives of the EEA implementation:

  • Training costs of the business increase
  • Fines/penalties for non-compliance may be expensive
  • Diversity in the workplace may lead to conflict
  • Skilled people from designated groups may demand higher salaries, increasing expenses
• Ways businesses can comply with the LRA:

  • Fairness should be promoted, and employees should not be unfairly/illegally dismissed
  • Employers should not prevent employees from forming or joining trade unions
  • Employers must allow employees to participate in legal strikes
• Rights of employers in terms of the LRA:

  • Form employer organisations
  • Form a bargaining council
  • Recourse a lockout during periods of unprotected/illegal strikes
  • Dismiss employees engaged in unprotected strikes or misconduct during strike action
• Rights of employees in terms of the LRA:

  • Join a trade union of their choice
  • Embark on legal strikes for grievances
  • Refer unresolved workplace disputes to the CCMA
  • Request trade union representatives to assist in grievance/disciplinary hearings
• The Human Resource Development Strategy (HRDS) aims to address skills shortages in the South African workplace and achieve faster economic growth, higher employment levels, and reduced levels of poverty
• The HRDS promotes social development, social justice, and helps alleviate poverty by developing short-term and long-term workforce skills, improving the supply of skills, and increasing employee participation in lifelong learning
• Ways in which businesses can comply with the Skills Development Act (SDA):

  • Display a summary of the SDA in the business where it is visible to all employees
  • Provide all employees with the opportunity to improve their skills
  • Employers who collect PAYE should register with SETAS and pay 1% of their payroll to the SETA
  • Businesses should register with SARS in the area in which their business is classified and submit a workplace skills plan
• The role/functions of SETAS include reporting to the director general, promoting and establishing learnerships, collecting levies, providing accreditation for skills development facilitators, and overseeing training in different sectors of the South African economy
• Funding of SETAS:

  • Skills Development levies paid by employers to SARS
  • 80% of the levy is distributed to different SETAs for organizational expenses, and 20% is paid to the National Skills Fund
• Penalties for non-compliance with the SDA:

  • Businesses that do not pay the Skills Development Levy may not offer learnerships or claim grants
  • A labour inspector could order the business to stop operating
  • Businesses may receive compliance orders from the Labour Court and face large fines
• Negative impacts of recent legislation on businesses:

  • Increases cost due to paperwork
  • Implementation of the SDA can be difficult to monitor and control
  • Skills programs may not always address employees' training needs
  • The Skills Development Levy could burden financially struggling businesses
• Discriminatory actions according to the SDA include preventing employees from signing learnerships based on age or position, unfair promotion of skills development, and providing false information in documentation
• Ways in which business can comply with EEA:

  • Use certified psychometric tests to assess applicants/employees for suitable candidates
  • Conduct medical/psychological tests fairly to employees when necessary
  • Assign senior managers to ensure implementation and monitoring of the employment equity plan
  • Eliminate barriers that have an adverse impact on designated groups
• Businesses should ensure employees are paid equally for work of equal value
• Basic Conditions of Employment Act (BCEA) (No. 75 of 1997) purpose:

  • Outlines terms and conditions of employment
  • Sets minimum requirements/standards for employment contracts
  • Advances economic development and social justice for employees
  • Regulates fair labor practices as per the Constitution of South Africa
  • Regulates variations of basic conditions of employment
  • Adheres to rules set by the International Labour Organisation (ILO)
• Provisions of the BCEA:

  • Hours of work: employees allowed to work more than 45 hours per week
  • Overtime: employees cannot be forced to work overtime, must agree to it, and must be compensated accordingly
• Actions regarded as non-compliance/discriminatory by the EEA:

  • Refusing to employ based on future family plans or HIV testing without justification
  • Denying access to the workplace based on discrimination
  • Treating workers unfairly regarding affirmative action or disability
• Penalties/consequences for non-compliance with the EEA:

  • Heavy fines, compensation to employees, compliance orders, and potential block from government tenders
  • Labour inspectors may investigate, issue compliance orders, or prosecute non-compliant businesses
• Ways businesses can comply with the EEA:

  • Guard against discriminatory appointments
  • Promote equal opportunities and fair treatment
  • Implement an employment equity plan and affirmative action measures
  • Ensure equal representation of all racial groups at every employment level
• The Basic Conditions of Employment Act (BCEA) outlines minimum requirements for employment contracts
• Employees can consult labor unions if BCEA conditions are violated
• Employees can submit complaints to labor inspectors who can address them
• Negative impacts of the BCEA on businesses include:

  • Time-consuming, expensive, and administratively burdensome implementation
  • Businesses may not implement employment contracts, leading to non-compliance and penalties
  • Restrictions on working hours may reduce productivity
  • Businesses cannot hire cheap labor or exploit employees
  • Increased labor costs due to legal requirements compliance
• Actions considered non-compliance/discriminatory by the BCEA:

  • Unilaterally changing information in employment contracts
  • Forbidding employees to discuss remuneration matters
  • Preventing access to employment contracts
  • Refusing valid medical certificates or family responsibility leave
• Penalties for non-compliance with the BCEA:

  • Compliance orders from the Labor Court
  • Investigations and inquiries by labor inspectors
  • Possible court rulings against businesses
• Sick leave entitlements under the BCEA:

  • 30 days/6 weeks paid sick leave in a 3-year cycle
  • 1 day paid sick leave for 26 days worked in 6 months
  • Medical certificate may be required for absences over 2 days
• Maternity/Adoptive leave entitlements:

  • 4 months maternity leave for pregnant employees
  • Prevention of hazardous work during pregnancy
  • Parental leave and adoption leave details
• Family responsibility leave:

  • 3 to 5 days paid leave per year for specific family events
  • Reasonable proof may be required for approval
• Positive impacts of the BCEA on businesses:

  • Establishes acceptable employment practices
  • Prevents employee exploitation
  • Encourages consultation between employers and employees
• Overtime pay regulations under the BCEA:

  • Double the normal rate for overtime on Sundays and public holidays
  • Meal breaks and rest periods requirements
• Termination of employment under the BCEA:

  • Notice periods based on length of employment
  • Severance pay for retrenched or dismissed employees