The Minister of Employment and Labour has published Gazettes setting out the increases in the National Minimum Wage, various Sectoral Determinations as well as the “earnings threshold”. These will be effective on 1 March 2021 and the table set out below summarises the situation that employers will face come 1 March 2021. It is common knowledge that the business representatives made a minority submission to the National Minimum Wage Commission that most of these increases that are above CPI (3% at the time) would further damage the ailing economy and employment prospects. In particular, the equalisation of farm workers to the general minimum wage with immediate effect from 1 March 2021 represents around a 16% increase and that of domestic workers an 18% increase. These increases come at a difficult time for both employers and employees – the latter struggling to recover from the impact of C19 disruptions on earnings and employment prospects. Employment type Previous rate New rate % increase Impact Earnings threshold R205 433 pa R211 596 pa 3% (R6163) BCEA Chapter 2 working arrangements and certain equal treatment provisions in the LRA NMW General R20.76 ph R21.69 ph 4.5% (93cph) NMW Farm Workers R18.68 ph R21.69 ph 16% (R3.01) NMW Domestic Workers R15.57 ph R19.09 ph 18% (R3.52) Sectoral determinations 4.5% Contract Cleaning, Wholesale and retail etc

Critical for organisations are the amendments that were tabled and approved by Cabinet in February 2020 concerning the Employment Equity Act. In July 2020, the Minister of Employment and Labour published that the Bill would go to the National Assembly to start the Parliamentary process. The Parliamentary Monitoring Group published that the Employment Equity Amendment Bill was now available for public commentary until 19 February 2021. The amendments are fast reaching the point of promulgation and will require an extraordinary employer effort to ensure compliance with some of the amended regulations. What does the Employment Equity Amendment Bill Propose? The most significant amendment to the proposed Employment Equity Act is section 15A which empowers the Minister of Employment and Labour to prescribe numerical targets for sectors at all occupational levels to ensure the equitable representation of suitably qualified people from designated groups. This is followed by section 42, which deals with the assessment of organisational compliance. Specifically, section 42 provides that meeting the Ministerial Targets is a pre-requisite to compliance and the ultimate issuing of a compliance certificate. Finally, section 53(6) is a list of five criteria that an employer must meet to obtain a compliance certificate. Key to this is section 53, which has always been in the Employment Equity Act but has not been operational. It will be put into effect by these amendments. This will mean that State contracts may only be issued to employers who have been certified as being compliant with the obligations under the Employment Equity Act. One of these is the requirement to achieve the above numeral sector targets prescribed by the Minister. What does Not Attaining a Compliance Certificate Mean? Not attaining a compliance certificate would mean that these businesses would not be able to do business with the State. Currently, BBB-EE status is measured in terms of the Preferential Procurement Framework Act in relation to a 10% and 20% evaluation of the total score. This is dependent on the monetary amount of the tender. Should this amendment go through it will have far-reaching implications for those sectors that have not achieved these targets and are not getting a certificate. What is critical is that section 42 is not definitive enough and does not contain a clause that would recognise reasonable steps toward the employer achieving the applicable targets. In terms of section 64, the draft regulations make provision for a designated employer who applies for a certificate of compliance – (to be but has not achieved the applicable targets – to record justifiable reasons for not doing so. However, it is not good enough to have this in the regulations as it needs to be in the Act. In addition, it actively empowers the Minister to delegate his authority of compliance to inspectors. This could lead to far-reaching powers for inspectors. https://www.youtube.com/watch?v=mg-YBDYZKLM&feature=youtu.be The Five Compliance Criteria In Section 53 Interestingly if one looks at section 53 of the Employment Equity Amendment Bill, there are five criteria of compliance for a certificate of compliance: The employer has complied with a numerical target set in section 15A that applies to that employer. If an employer has not complied with any target set, the employer has raised a reasonable ground, to justify its failure to comply as contemplated by section 42(4). The employer has submitted a report in terms of section 21. There has been no finding by the CCMA or a court within the previous three years that the employer breached the prohibition on unfair discrimination in Chapter 2; and The CCMA has not issued an award against the employer in the previous three years for failing to pay the National Minimum Wage. These amendments will have far-reaching consequences if they are passed into law and potentially some significant unintended consequences. Join us for the Employment Equity Amendments – Interpreting, Planning & Implementing as we unpack these amendments and what they mean for your business.

Sometimes, an employee facing dismissal will try to rely on a technicality in order to avoid the sanction posed. The case of South African Commercial, Catering and Allied Workers Union obo Vas / Carnival City Casino – (2019) 28 CCMA 8,37,6 (CCMA ) illustrates such a matter. The employee was dismissed for gross insubordination after making derogatory and abusive remarks (including the comment that she should “go back to China”) about a manager who had told the employee that the employer would not pay for flowers for her mother’s funeral. The employee admitted uttering the words, which has been captured on videotape but claimed that she had apologized and that her conduct constituted insolence rather than insubordination. The Commissioner of the Commission for Conciliation, Mediation, and Arbitration did not get side-tracked by the technicality. It was concluded that the employee’s conduct amounted to insolence rather than insubordination because the employee had not defied an instruction. The comment had been directed not only to the manager but to the Chinese community generally. The employee’s anger at the manager was unjustifiable because she had not taken the decision not to buy flowers and offered to personally contribute some of the money needed for the purpose. The employee’s comments were made in the presence of several other employees. The employee had shown no remorse and the Commissioner held that the dismissal was fair. Contact Global Business Solutions Have an issue, such as the one above, in your company? Contact Grant Wilkinson and the rest of the legal team to help you sort this out, grant@globalbusiness.co.za .

The issue of short time is a contentious one at the workplace . It results in less take-home pay for employees. This was looked at in the National Union of Mineworkers obo Mhlempu / UMSO Construction (Pty) Ltd – (2019) 28 BCCEI 6.7.2. An employee was placed on short notice due to the operational requirements. His wages were reduced from 45 hours a week to 30 hours. The employee claimed that the employer was not entitled to send its employees home on reduced pay, and institute short time, and contended that this amounted to an unfair labour practice. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) noted that “short time” is not defined in the Basic Conditions of Employment Act 75 of 1997 but that the applicable bargaining council agreement defined short time as a temporary reduction of the number of ordinary hours of work due to contingencies beyond the employer’s control which directly affects the employer’s ability to provide work. This also means that if it is not contained in a bargaining council or collective agreement short time cannot be implemented without consent. The Labour Relations Act (LRA) states that collective agreements may vary contracts of employment of parties bound by the agreements. A dispute relating to a short time is properly dealt with by the bargaining council or the Department of Labour. Such disputes do not fall within the definition of “unfair labour practice”. The conclusion that this was not an unfair labour practice was correct. If there had been a collective agreement this would have then been an unfair labour practice. Contact Global Business Solutions In the era of Covid-19, the issue of short time has become ever apparent with many companies being forced into putting their employees on short time in order to survive financially. If you’re in any doubt about policies to apply in your workplace, please contact Marianne Gradwell , marianne@globalbusiness.co.za – who is an HR specialist with us here at GBS – who will be able to assist.

The Employment Equity Act makes paying people – who do the same work at different rates of pay – an offense. This amounts to unfair discrimination. However, what often happens is that employees misinterpret this provision as can be seen in the matter of Food and Allied Workers Union obo Mloyeni and another / Rio Ridge 1377 CC t/a Woza – (2019) 28 CCMA 1.17.2. Two employees, who were both employed as general assistants in the employer’s store, were paid at a lower rate than other general assistants at the employer’s store in East London. One employee claimed that she was performing the work of a sales assistant and should be paid at that rate.  The other employee claimed that the different rates paid in the store amounted to unfair discrimination and “exploitation”. The CCMA Commissioner noted that both employees were paid the minimum rates set in the applicable sectoral determination. Where unfair discrimination is alleged on an arbitrary ground, the employee must prove that the conduct is irrational and indeed amounts to unfair discrimination: The first employee had never been requested to do sales work.  The second employee was unaware of the sectoral determination. All employees at the Queenstown branch were paid the same rate.  In essence, the applicant was attacking the rationale of the sectoral determination.  The employees had, accordingly, failed to prove that they had been unfairly discriminated against. The application was dismissed. Contact Global Business Solutions There are increasing numbers of unfair discrimination cases, based on differences in pay, which are now being lodged. Contact Natalie Singer , who is our equal pay expert, to make sure that cases such as these don’t see the inside of the CCMA.

In the case of the University of Kwa Zulu Natal v Pillay and Others Case No: DA09/2015 , the issue of when an employee will be liable for the costs of an appeal and a review was considered in the Labour Appeal Court. The employee admitted that he had lied to a tribunal established by the university to inquire into the improper awarding of a degree and other suspicious activities.  The Labour Court upheld the finding that dismissal was justified but sent the matter to the same Commissioner to reconsider the issue of procedural fairness .  The Commissioner found that the dismissal was procedurally fair. On review, the Labour Court ruled that the dismissal was procedurally unfair and granted the employee 10 months’ salary.  On appeal, the Labour Appeal Court noted that the prior court had based its findings about procedural fairness on the view that the employee had not had a proper opportunity to answer the charges leveled against him.  The disciplinary inquiry had been convened to establish whether the employee had lied under oath to the investigating tribunal.  The employee had been given a full opportunity to address the university council’s view that he should be dismissed. The presiding officer found that the employment relationship had broken down and recommended that sanction.  The Commissioner’s finding that the dismissal was procedurally fair was eminently reasonable and the Labour Court had not explained its finding to the contrary.  The appeal was upheld and the employee was ordered to pay the costs of both the review and the appeal. Contact Global Business Solutions Our legal team – which Jonathan Goldberg, johnny@globalbusiness.co.za is an integral part of – deals with situations such as these all the time. If you have a similar situation in your company, please don’t hesitate to contact us!

Section 23 of the Constitution of the Republic of South Africa states that everyone has the right to fair labour practices. This is the basis of the Labour Relations Act (LRA). In the case of LONG V SOUTH AFRICAN BREWERIES (PTY) LIMITED AND OTHERS; LONG V SOUTH AFRICAN BREWERIES (PTY) LIMITED AND OTHERS CCT61/18 this right concerning suspensions was interpreted up to now. The employee was given the notice to attend a disciplinary enquiry on 28 August 2013. The three charges against him were: (a) gross dereliction of duties, (b) gross negligence, dishonesty, and derivative misconduct, and (c) bringing the company name into disrepute. All of these charges are related to the employee’s failure to properly manage the fleet. The employee was acquitted, at the disciplinary enquiry, on the charge of dishonesty but was found guilty in respect of dereliction of duties, gross negligence, and bringing the company name into disrepute. Consequently, he was dismissed. There Were Two Arbitrations The first was about the employee’s suspension pending disciplinary enquiry. The arbitrator concluded that the employee had not been given an opportunity to make representations to show why he should not be suspended. This he found to be an unfair labour practice . The arbitrator concluded that the suspension was unreasonably long, and had become punitive and unfair. The arbitrator awarded the applicant compensation equivalent to two months’ remuneration. The next arbitration related to the employee’s dismissal. The arbitrator was of the view that the issue he had to decide was whether the failure to take appropriate action to remedy the problems with the fleet could be attributed to the employee. The arbitrator found that the employee did not commit misconduct as the alleged failures did not fall within his responsibility. The employer was directed to reinstate the applicant with retrospective effect to the date of dismissal. On review, the Labour Court held that where a suspension is precautionary, there is no requirement that an employee be given an opportunity to make representations. The Labour Court concluded the arbitrator’s reasoning, that the suspension was unduly long and had become punitive, was flawed. The Labour Court held that the arbitrator’s conclusions were materially irregular and that any prejudice to the employee was mitigated by the fact that he was fully paid while on suspension. The Labour Court further held that the arbitrator’s award constituted a gross irregularity in that he had failed to deal with – or even consider – material evidence. In addition, he did not reasonably and rationally evaluate and determine the evidence. The Labour Court held that on the evidence and taking into account the seniority and nature of the employee’s position, he was guilty of dereliction of duties. As a result, the arbitrator’s award was unreasonable. The Labour Court held that there had been a breakdown of the trust relationship and that the misconduct was serious. The Labour Court ordered that the employee pay the employee’s costs. The Labour Appeal Court refused the petition of the employee with no order as to costs. The employee then filed an application for leave to appeal to the Constitutional Court. This case concerns fair labour practices in terms of section 23 of the Constitution. Specifically, the matter dealt with if there is a requirement for a pre-suspension hearing for a precautionary suspension. The Constitutional Court concluded that the Labour Court’s finding – that an employer is not required to give an employee an opportunity to make representations prior to a precautionary suspension – cannot be faulted. As the Labour Court correctly stated, the suspension imposed on the employee was a precautionary measure, not a disciplinary one. Consequently, the requirements relating to fair disciplinary action under the Labour Relations Act (LRA) cannot find application. Where the suspension is precautionary and not punitive, there is no requirement to afford the employee an opportunity to make representations. The Court concluded the fairness of the suspension is determined by assessing, first, whether there is a fair reason for suspension and whether it prejudices the employee. The Court did not pronounce on the fairness or otherwise of the dismissal which it seems was an oversight. Contact Global Business Solutions Our legal team deals with cases of unfair labour practices on almost a daily basis. Contact Grant Wilkinson , grant@globalbusiness.co.za , and the team for assistance with these types of matters.

In the case of the National Union of Metalworkers of South Africa v Transnet SOC Ltd Case No: JS427/15 the question of whether or not a company may prevent union members – from wearing union-related clothing while at work and thus regulating dress code – was looked at. This was the latest step in the long dispute between NUMSA and Transnet over the union’s insistence that its members be allowed to wear union T-shirts – and thus adopt a certain dress code – during working hours.  Transnet initially prohibited unions from so doing but later extended the ban to members of all unions.  The Labour Court held that, given the wide interpretation that must be given to the right to engage in unions’ lawful activities, the ban infringed section 5 of the Labour Relations Act (LRA).  The Court added that such a ban might be justified for safety purposes or if it provoked violent union rivalry. However, it was found unnecessary to consider that issue because Transnet had raised justification as a defense.  The relevant provision of the respondent’s clothing policy was set aside, as well as any disciplinary action contemplated against employees for breaching the rule. Contact Global Business Solutions If you need any assistance with drafting workplace policies, contact John Botha, john@globalbusiness.co.za , and the rest of the Global Business Solutions team.

In the case of Municipal and Allied Trade Workers Unions of South Africa v Central Karoo District Municipality and other- Labour Court, Cape Town, Case No: C671/18 , the question of whether agency shop agreements apply to all trade unions that are represented in a company. The trade union claimed that its members should not be required to pay an agency shop fee, which is applicable throughout the municipal sector because they were subject to a “double deduction”.  In addition, the Union argued that the introduction of section 21(8)(c) of the Labour Relations Act (LRA), allows for the extension of certain organisational rights to minority unions even if their membership falls short of threshold agreements concluded under section 18.  The Court found that free riders were free riders, regardless of whether they exercised their freedom of association to join minority unions without bargaining rights.  To accept the unions’ arguments would undermine the principle of majoritarianism on which the LRA was largely based.  Without a challenge to the constitutionality of section 25, which the Union had abandoned, there was no basis for departing from an earlier authority in which it had been held that agency shop agreements apply to the unions. Contact Global Business Solutions Jonathan Goldberg , johnny@globalbusiness.co.za , is an expert in trade union negotiations. If you need assistance with any such negotiations in your company, please contact him or anyone else in the Global Business Solutions team, we're happy to be of assistance.

The Compensation for Occupational Injuries and Diseases Act (COIDA), No. 130 of 1993, allows employees to claim compensation if an employee is disabled as a result of occupational injuries or diseases that are acquired or contracted while performing his or her job. Alternatively, should an employee die because of injuries or a disease sustained while performing their job, or if they were disabled as a result of these afflictions, they are entitled to institute a claim in terms of COIDA. There are a certain number of things that you, as an employer, need to know in terms of COIDA and how this Act affects your business. You must register with COIDA All employers need to be registered with the Compensation Fund which is the fund that administers COID claims. Once registered, you will need to pay the Fund's annual assessment fees. What is ‘work’ according to COIDA? In De Gee v Transnet SOC Ltd (30085/2015) [2019] ZAGPJHC 2 , the High Court had the opportunity to consider when an occupational injury can be said to have occurred during the course and scope of an employee’s employment for purposes of COIDA. De Gee, an executive support manager, injured his lumbar spine when the lift he was traveling in fell approximately seven floors. He was using the lift to gain access to his office situated on the 48th floor of his employer’s building. The court concluded the following guidelines to determine whether the employee was acting in the course and scope of his employment when the injury occurred: An employee is acting in the course of his employment when he is doing something he was employed to do. Where an employee is traveling to or from work, the journey is dis-associated from the employee’s employment unless the employee is fulfilling an obligation imposed by the contract of employment. An employee does not start working until he has reached his work unless – at the time the injury occurred – the employee was doing something in the discharge of his duty towards his employer. After an employee has finished his work for the day and has started his way home, his employment continues while navigating the premises. Once an employee reaches a place of public access, his status as a worker is removed and he becomes a member of the general public. An employee may be deemed to be working while traveling to work if he is required to follow a prescribed route or is required to use a prescribed means of transport.   In all cases where an employee – in going to or leaving – work suffers an accident on the way, the first question to be determined is whether an employee was at the place where the accident occurred by virtue of his employment or if as a member of the public. The court concluded that, based on the evidence before it, there was insufficient proof to determine whether at the time of the incident, the employee was acting in the course and scope of his employment. On this basis, the court found that the employee’s claim was not covered by COIDA. How does COIDA determine ‘disablement’? COIDA defines ‘disablement’ as follows: “temporary partial disablement, temporary total disablement, permanent disablement or serious disfigurement, as the case may be” From the above definition, it can be inferred that an employee may claim compensation in terms of COIDA if he is no longer able to work because he or she has been disabled as a result of occupational injuries or disease sustained while performing his or her job. Alternatively, the employee may claim benefits should he or she be off work for a period of time due to the disabling effect of the occupational injuries or diseases but be permitted to return to work after a time. Can relatives of a deceased employee claim COIDA benefits? If one of your employees dies as a result of an occupational disease or injury, a relative may claim the employee’s benefits. These relatives include: A widow or widower who, when the employee passed away, was married to the employee according to civil law, indigenous law, or custom. (The latter two options are only valid should the employee or his widow not have been part of another, pre-existing civil marriage.) Alternatively, if there was no marriage – but the widow/widower was living with the employee at the time as if they were husband and wife – the surviving partner is entitled to claim the COID benefits. A child – of the employee or of his/her spouse of a previous marriage – who is under 18. These children may include: –   Child born after the death of the employee, – Stepchild, –  Adopted child, or –  Child born out of wedlock. A parent or another person who, as far as the Director-General is concerned – was acting in the role of a parent and was either wholly or partly financially dependent on the employee when he or she died. A sibling or half-sibling of the employee . A grandchild of the employee. As stated above, as an employer it is your legal duty to be registered with the Compensation Fund. It is thus imperative for you and your HR department to know when a claim may be lodged so that this information can be disseminated properly to your employees. Contact Global Business Solutions Knowing how to navigate COIDA in your organisation properly is vital. Contact John Botha and the rest of the Global Business Solutions team for any COIDA-related assistance.