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introductionintroduction

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Introduction cont.Introduction cont.

The Four main labour lawsThe Four main labour laws

1.1. LRA -Act 66 of 1995LRA -Act 66 of 1995

2.2. BCEA – Act 75 of 1997BCEA – Act 75 of 1997

3.3. EEA– Act 55 of 1998EEA– Act 55 of 1998

4.4. Skills Development Act – Act 97 of1998,Skills Development Act – Act 97 of1998,• and Skills Development Levies Act – Act 9 of and Skills Development Levies Act – Act 9 of

19891989

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LRA -Act 66 of 1995LRA -Act 66 of 1995

– Introduced 1995Introduced 1995– Main labour relations frameworkMain labour relations framework– Regulates employment and collective Regulates employment and collective

bargaining relationships ie governs the bargaining relationships ie governs the relationship at individual and collective levelrelationship at individual and collective level

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BCEA 75 of 1997BCEA 75 of 1997

Sets parameters governing terms and Sets parameters governing terms and conditions of employmentconditions of employment

Prescribes Prescribes minimumminimum terms and conditions of terms and conditions of employmentemployment– Examples – working hours etcExamples – working hours etc

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Employment Equity Act, 55 of 1998Employment Equity Act, 55 of 1998

Governs affirmative actionGoverns affirmative action Redresses past discriminationRedresses past discrimination 2 fold purpose2 fold purpose

– To stop unfair discrimination against employees and To stop unfair discrimination against employees and applicants [applies to all employers]applicants [applies to all employers]

– To proactively advance people from designated groupsTo proactively advance people from designated groups

Imposes penaltiesImposes penalties Specific employers have to have an equity plan Specific employers have to have an equity plan

and take affirmative action measuresand take affirmative action measures

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Skills development Act Skills development Act Skills Development Levies ActSkills Development Levies Act

Linked to EE ActLinked to EE Act Proactive advancement of people previously Proactive advancement of people previously

discriminated againstdiscriminated against Aim Aim

– to develop skills of the workforceto develop skills of the workforce– Develop culture of learningDevelop culture of learning

Skills development levySkills development levy Financial incentives for proactive employersFinancial incentives for proactive employers

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Constitution of SA 108 of 1996Constitution of SA 108 of 1996

Supreme law of the landSupreme law of the land– S23 of the Bill of Rights sets out employees S23 of the Bill of Rights sets out employees

rights; such as freedom of association, the right rights; such as freedom of association, the right to fair labour practices, the right to collective to fair labour practices, the right to collective bargaining, securing trade union rights etcbargaining, securing trade union rights etc

– Right to equalityRight to equality

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Other relevant lawOther relevant law

– Unemployment Insurance Act 63 of 2001Unemployment Insurance Act 63 of 2001 Provides social benefits to unemployedProvides social benefits to unemployed

– Recent Amendments:Recent Amendments:– now includes domestic employeesnow includes domestic employees– If employee works for more than one employer – covered if If employee works for more than one employer – covered if

one but not all, positions terminatedone but not all, positions terminated– Excludes the jurisdiction of the CCMA over UIF Appeals Excludes the jurisdiction of the CCMA over UIF Appeals

which now go to the Regional Appeals Committeewhich now go to the Regional Appeals Committee

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Other relevant law contOther relevant law cont Compensation for Occupational Injuries and Diseases Act – 1993Compensation for Occupational Injuries and Diseases Act – 1993 Occupational Health and Safety Act – 1993Occupational Health and Safety Act – 1993 SA Qualifications Authority Act 1995SA Qualifications Authority Act 1995

– Introduced National Qualifications FrameworkIntroduced National Qualifications Framework– 8 levels on the NQF – each nationally recognised qualification will be in one 8 levels on the NQF – each nationally recognised qualification will be in one

or other levelor other level– Applies to skills development and training – employees encouraged that Applies to skills development and training – employees encouraged that

training will lead to NQF aligned qualificationtraining will lead to NQF aligned qualification– SAQA – over - sees NQF implementationSAQA – over - sees NQF implementation

Protected Disclosure Act 26 0f 2000Protected Disclosure Act 26 0f 2000– Protects employees disclosing employers unlawful conduct.Protects employees disclosing employers unlawful conduct.

See p4 handout for legislation/documents required and websites.See p4 handout for legislation/documents required and websites.

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Types of EmployeesTypes of Employees

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Employee vs Independent Employee vs Independent Contractor Contractor

EMPLOYEEEMPLOYEE– definitiondefinition

an agreement between partiesan agreement between parties One places labour potential at disposal of, and under the control of, the One places labour potential at disposal of, and under the control of, the

other other For remuneration For remuneration

INDEPENDENT CONTRACTORINDEPENDENT CONTRACTOR– Locatio conductio operis – a contract for servicesLocatio conductio operis – a contract for services

WHY THE NEED TO DISTINGUISHWHY THE NEED TO DISTINGUISH– LRA BCEA EEA SDA,SDLA and other labour related legislation, LRA BCEA EEA SDA,SDLA and other labour related legislation,

and the protection under these laws, do not extend to independent and the protection under these laws, do not extend to independent contractorscontractors

See cases P11 handoutSee cases P11 handout

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S220A LRA and S 83A BCEA, S220A LRA and S 83A BCEA, amendments to clarify [2002]amendments to clarify [2002]

RebuttableRebuttable presumptionpresumption if a person works for or if a person works for or renders services to anotherrenders services to another

Indicators include [if any present , presumed an Indicators include [if any present , presumed an employee]:employee]:– Control of Control of

manner of how work done?manner of how work done? Hours of work?Hours of work?

– Is the person economically dependant on the other?Is the person economically dependant on the other?– Tools of trade provided?Tools of trade provided?– Work for one person only?Work for one person only?

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contcont

Employers and employees love to try disguise agreements!Employers and employees love to try disguise agreements!– Employers avoid LRA, and Employees avoid/reduce income taxEmployers avoid LRA, and Employees avoid/reduce income tax

Courts use dominant impression test:Courts use dominant impression test:– De Greeve/Old Mutual Life assurance (2004)*2De Greeve/Old Mutual Life assurance (2004)*2– Briggs v CMS Support Services (1997)Briggs v CMS Support Services (1997)– Shikwambana v Quantum Construction holdings – Shikwambana v Quantum Construction holdings – court pierced the court pierced the

corporate vale; corporate vale; And compare:And compare:– Bezer v Cruises International CC (2003) [*1 ‘avoiding taxes’ ]Bezer v Cruises International CC (2003) [*1 ‘avoiding taxes’ ]

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Different types of employeesDifferent types of employees

Fixed term employeesFixed term employees– Specific duration or specific projectSpecific duration or specific project– Automatic termination (–word it carefully)Automatic termination (–word it carefully)– Rolling over generally not allowedRolling over generally not allowed

Permanent EmployeesPermanent Employees– Indefinite periodIndefinite period– Terminates usually on noticeTerminates usually on notice– Fulltime or part timeFulltime or part time

Note: Become an employee and protected = from Note: Become an employee and protected = from conclusionconclusion of contract of employment, even if before work of contract of employment, even if before work starts – see: starts – see: Wyeth SA Pty Ltd v Manqele & others (2003)Wyeth SA Pty Ltd v Manqele & others (2003)

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Types employees cont.Types employees cont.

Probationary employeesProbationary employees– Assessment ‘trial period’ Assessment ‘trial period’ – To be of reasonable duration (depends on the job – and To be of reasonable duration (depends on the job – and

time to assess suitability)time to assess suitability) Senior Managerial EmployeesSenior Managerial Employees

– One who normally by reason of rank has powers and One who normally by reason of rank has powers and functions associated with the employer – eg – has the functions associated with the employer – eg – has the power to hire and fire.power to hire and fire.

– Remains subordinate to employerRemains subordinate to employer– Excluded from certain legislation protection (eg –max Excluded from certain legislation protection (eg –max

work hours)work hours)

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Types employees cont.Types employees cont.

Employees excluded from stipulated Employees excluded from stipulated working hours – travelling sales staff/ staff working hours – travelling sales staff/ staff earning more than R115 572earning more than R115 572

working less than 24 hours pm – specific working less than 24 hours pm – specific exclusionsexclusions

Temp employees?Temp employees?