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EMPLOYMENT

GUIDE TO THE
AMENDMENTS 2015

www.cliffedekkerhofmeyr.com
Cliffe Dekker Hofmeyr is a member DLA Piper Group, an alliance of legal practices.

OVERVIEW OF THE 2014 AMENDMENTS TO THE SOUTH AFRICAN LABOUR


LEGISLATION
The legislature during 2013 and at the beginning of 2014 published amendments to the Labour
Relations Act, No 66 of 1995 (LRA), the Basic Conditions of Employment Act,
No 75 of 1997 (BCEA) and the Employment Equity Act, No 55 of 1998 (EEA) and
introduced a completely new act called the Employment Services Act. Some of the main changes
in terms of these amendment acts are highlighted in this publication.
The vast majority of these amendment acts are now in force. The latest to become effective, was the amendment to
the LRA, which came into force on 1 January 2015.

CHANGES IN TERMS OF THE LABOUR RELATIONS AMENDMENT ACT 2014 (LRAB)


AUTOMATICALLY UNFAIR
DISMISSALS AND MATTERS
OF MUTUAL INTEREST
(LRA s187(1)(C))
The amendment signicantly widens
the scope of s187(1)(c) of the LRA,
by amending it as follows.
The text of the section as it currently
stands reads:
"a dismissal is automatically unfair
if the reason for the dismissal is
(c) to compel the employee to accept
a demand in respect of any matter of
mutual interest between the employer
and employee;"

The amended version reads:

How will this affect retrenchments?

"a dismissal is automatically unfair


if the reason for the dismissal is
(c) a refusal by employees to accept
a demand in respect of any matter
of mutual interest between them and
their employer;"

Taken literally, the amendments will


have the result that a dismissal for
operational reasons will be unfair
where employees are given an
alternative to dismissal, but refuse to
accept it. The amendment will also
present employers with difculties
when attempting to amend the
terms and conditions of employment
pursuant to a restructuring.1

The crucial difference between the


current and the amended texts is
that it is no longer a requirement
for automatic unfairness that the
reason for dismissal is the employer's
intention to compel the acceptance
of a demand.

1
Beerman & Coetzee, "Can an employer still raise the retrenchment ag in interest negotiations?
The Fry's Metals case under the Labour Relations Amendment Bill 2012" De Jure 45 (2012) 355.

2 | Guide to the amendments 2015

What about the decision in


Fry's Metals?
The Supreme Court of Appeal in
National Union of Metalworkers of
South Africa v Fry's Metals (Pty) Ltd 2
gave the current s187(1)(c) a
narrow interpretation. The effect
was that employers could retrench
employees, if the employees were
unwilling to agree to changes to
their terms of employment (provided
that such changes could be justied
based on the employer's operational
requirements). The amendment's
effect and its stated purpose is
to nullify the effect of Fry's Metals.
The emphasis will be on whether
the employee refused to agree to a
demand and is dismissed. If so, the
dismissal will be automatically unfair.
2

[2005] 3 All SA 318 (SCA).

FIXED TERM CONTRACTS


AND A REASONABLE
EXPECTATION OF RENEWAL
(LRA s186)
Is there an obligation on employers
to renew xed term contracts?
On termination of a xed term contract,
the failure by an employer to engage
an employee on the same (or similar)
terms when the employee reasonably
expected such further appointment
constitutes a dismissal. Unless such
a reasonable expectation exists,
no right to renewal or permanent
employment will be created. Note,
however, that additional protections
are extended to employees earning
below the threshold prescribed
from time to time by the Minister in
terms of s6(3) of the BCEA [which
currently is set at R205 433,30]
(earnings threshold). These additional
protections are explained in the
section dealing with non-standard
employment that follows hereon.
What is the effect of the amendment?
Prior to the amendment the best an
employee could expect was for a
renewal of the xed term contract on
the same or similar terms. The
amendment introduces an expectation
of permanent employment. Where
the employee is able to prove a
reasonable expectation of renewal on
a permanent basis the employee may
now be appointed permanently.
Can xed term contract workers
be treated less favourably than
permanent workers?
Yes, the new requirement of equal
treatment for xed term employees
apply only to xed term employees
earning below the earnings threshold.

3 | Guide to the amendments 2015

Employers should still take care not to


discriminate against groups of
employees on listed grounds of
discrimination.
Can an employer still make use of
xed term contracts?
Yes. The proposed s198B relates
only to employees earning below the
earnings threshold and, even for such
employees, provides that an employer
may still engage such an employee on
a xed term contract of employment.
The period of engagement (of such
lower earners) may, however, only
exceed three months if the nature of
the work for which the employee is
engaged is of a limited or denite
duration, or if the employer is able
to demonstrate any other justiable
reason for xing the term of the
contract. The employer bears the onus
of proving at any proceedings that
there exists a justiable reason for
xing the term of the contract and that
such term was agreed. In the absence
of a justiable reason the employee
can be deemed to be a permanent
employee.
NON-STANDARD EMPLOYMENT
(LRA s198)
Section198 of the LRA deals with the
position of Temporary Employment
Services (TES), commonly known as
labour brokers. In this section we
discuss the changes relating to TESs,
as contained in the LRAA, and the
additional sections which address
so-called non-standard employment.
It is worth noting that the amendments
as contained in ss198B and 198C
of the LRA will only apply to workers
whose earnings fall below the
earnings threshold.

Does any part of s198 of the LRA


survive any of the amendments
contained in the LRAA?
For the most part, s198 of the LRA has
largely remained unchanged. The
changes to s198 take the form of
additions thereto in the LRAA. These
additions can be summarised as
follows:

if it is determined that the client


of a TES is jointly and severally
liable in terms of the current
s198(4) of the LRA, the employee
may now institute proceedings
against the client or the TES, or
both;
a labour inspector acting in
terms of the provisions of the
BCEA may enforce compliance
with that Act as against the client
or the TES, or both;
any order granted against a
client or TES in terms of this
section can be enforced against
either the client or TES [s198(4A)];
a TES will need to ensure that
its contracts of employment held
with its employees are compliant
with the provisions of s29 of the
BCEA [s198(4B)];
the Commission for Conciliation
Mediation and Arbitration
(CCMA) and Labour Court
are empowered to determine
whether a TES employee's
contract complies with
obligations imposed by the TES
in law [s198(4E)]; and
all TESs must be registered
in terms of the Employment
Services Act [s198(4F)].

What is the effect of s198A of the


LRA in terms of employees who earn
below the earnings threshold?

Do the amendments change anything


with regard to xed term contracts
[LRA s198B]?

Section198 still contains the denition


of a TES (a person who, for reward,
procures for or provides to a client
other persons (TES employees), to
perform work for the client but which
TES employees are remunerated by the
TES).

The amendments introduce new


provisions regarding the duration and
status of xed term contracts, and
are only applicable to employees
earning below the earnings threshold.
Higher earners and certain small or
start-up businesses are not affected
and may continue to use xed term
contracts as before.

Section198A limits and renes this


denition for TES employees earning
below the earnings threshold, with
the effect that such lower earning TES
employees will only properly resort
under the traditional TES model if the
work is:

for a period not exceeding three


months; or
as a substitute for an employee
for a client who is temporarily
absent; or
in a category of work for any
period of time in terms of a
collective agreement or by the
Minister.

Such a lower earning TES employee


performing work for a client that does
not fall within the limited denition of
'temporary service' will be deemed
to be an employee of the client. If the
placement is furthermore for longer
than three months, the TES employee
will become employed on an indenite
basis by the client, if none of the
s198B justications for such a longer
employment period applies.
TES employees, once they become
deemed employees of the client,
are also to be treated on the whole
not less favourably than permanent
employees of the client, who perform
the same or similar work as the TES
employee.
The new provisions relating to
temporary employment services
take effect three months after the
commencement of the LRAA (ie on
1 April 2015).
4 | Guide to the amendments 2015

Employers will not be able to employ


its employees on a xed term basis
for longer than three months unless
it can be shown that a longer xed
term period is justiable due to
the nature of the work or due to
an alternative justiable reason.
Justiable reasons may include one
or more of the specied reasons
listed in s198B or other justiable
grounds. The list of permissible
reasons include:

project work;
student or graduate internships;
seasonal work;
non-citizens who have been
granted a work permit for a
dened period;
replacement of another
employee who is temporarily
absent;
temporary increases in work
volume (expected duration up
to 12 months);
public works or job creation
schemes;
positions funded by external
sources for limited periods;
and
after retirement age was
reached.

Employees who are employed for a


xed term period longer than three
months, in the absence of a justiable
reason, will be deemed to be a
permanent employee.

Fixed term employees employed for


longer than three months are to be
treated on the whole not less
favourably than permanent employees
and are also to be guaranteed the
same opportunities as permanent
employees in terms of vacancies. To
the extent that the xed term contract
is entered into for a period of less
than three months, the xed term
employee may be treated less
favourably than an employee
employed on a permanent basis or
performing the same or similar work.
In the absence of a justiable reason
for the different treatment they must
be treated the same after three months.
A xed term employee who is
employed for a period longer than
24 months will be entitled to
severance pay amounting to one
week's remuneration for each
completed year of service.
These changes took effect
immediately on 1 January 2015,
except in respect of the equal
treatment obligation which will only
take effect on 1 April 2015.

Do the amendments regulate


part-time work?
Yes, s198C of the LRA introduces
certain protections to part-time
employees earning below the
threshold.
A part-time employee is dened as an
"employee who is remunerated
wholly or partly by reference to the
time the employee works and who
works less hours than a comparable
full-time employee".
Employers are to ensure that
part-time employees are treated on
the whole not less favourably in
comparison to full-time employees
and that those part-time employees
are provided with the same access to
training and skills opportunities that
are available to full-time employees.
A part-time employee will be
considered comparable to a
full-time employee if the employees
are employed in terms of the same
type of employment relationship that
involves the same or similar kind of
work at the same workplace.
As with xed term employees,
part-time employees must also be
provided with the same opportunities
regarding workplace vacancies.
Importantly, these amendments do
not apply to:

employees who earn above the


earnings threshold;
small businesses;
employees who ordinarily work
less than 24 hours in a month; or
during the rst three months of
employment.

5 | Guide to the amendments 2015

Who will have jurisdiction to deal


with disputes arising from the
amendments to s198 of the LRA?
Section198D of the LRA empowers
the CCMA, or relevant Bargaining
Council with jurisdiction, to
adjudicate all disputes regarding the
interpretation and/or application of
ss198A, 198B and 198C.
Further, employers will be allowed to
treat non-standard employees, being
TES, xed term and part-time
employees, differently to permanent
employees with reference to the
following differentiating factors:

seniority, experience or length of


service;
merit;
quality or quantity of work
performed; and/or
any other similar criterion.

It is clear that the additions and


amendments to s198 of the LRA, as
contained in the LRAA, are designed
to introduce additional protections to
non-standard employees.

ENFORCEMENT OF
ARBITRATION AWARDS
(LRA s143)
What is the effect of the amendment
to the LRA dealing with the
enforcement of arbitration awards?
The amendments to this section intend
to further streamline the mechanisms
for enforcing arbitration awards of
the CCMA and to make these
mechanisms more cost effective and
accessible to low earning litigants.
How does it purport to achieve this?
An award for the payment of money
that has been certied by the CCMA
can be presented to the Deputy-Sheriff
for execution if payment is not made.
This removes the need for the current
practice in terms of which parties rst
have to have a writ issued by the
Labour Court.
The enforcement of awards to pay
money will now occur in terms of the
Rules and Tariffs applicable to the
Magistrate's Court, thus simplifying
and reducing the costs of execution of
awards for the payment of money.
In the case of awards such as
reinstatement which are enforced by
contempt proceedings in the Labour
Court, the need to have an arbitration
award made an order of the Labour
Court before contempt proceedings
can be commenced with, is removed.

STREAMLINING REVIEWS
(LRA s145)
Is there a time limit to have a review
application heard by the Labour
Court?
The application must still be initiated
within six weeks of the date of the
arbitration award. Any applicant
must now, within six months of
launching the review proceedings,
nalise the review so that it is ready
to be heard by the Labour Court and
a trial date can be applied for.
Can the Labour Court condone action
which falls outside of the six month
period?
The Court can condone late action
but it would be inclined not to.
How else are review proceedings
affected by the amendments?
The institution of review proceedings
does not suspend the operation of
an arbitration award. The award will
be suspended only if the applicant
furnishes security to the satisfaction
of the Court. In the case of a
reinstatement or re-employment order
the security must cover 24 months'
remuneration and in the case of a
compensation order must be
equivalent to the amount of
compensation ordered.
What about prescription of
arbitration awards?
The various conicting judgements
led to an amendment to the LRA
that an application to set aside an
arbitration award will interrupt the
running of prescription in respect of
that award.
How long will it take for judges to
hand down review judgements?
The judgements must be delivered
'as soon as reasonably possible'.

6 | Guide to the amendments 2015

COLLECTIVE LABOUR LAW


The amendment to s21 affects the
granting of organisational rights to
minority unions.
How do minority unions, which do
not reach certain thresholds, obtain
such rights?
Previously, if an employer declined
any trade union's request for
organisational rights, the union had
to refer a dispute to the CCMA
for the Commissioner to determine
whether or not the union is entitled
to any such rights. A minority union
could then only resort to industrial
action to secure organisational
rights in accordance with the Bader
Bop Constitutional Court decision.
However, the intention of the s21
amendments, is to lessen the need for
minority trade unions to use industrial
action to obtain organisational
rights. They are now, subject to
meeting certain requirements, entitled
to at least some rights.
Can a commissioner award
organisational rights referred to in
s14 (trade union representatives) and
s16 (disclosure of information) of the
LRA to a minority trade union?
As a result of the amendment to s21,
a commissioner has a discretion in
this regard. This discretion, however,
is subject to the proviso that the
minority trade union must already be
sufciently representative and thus
entitled to rights under s12 (access
to the workplace), s13 (deduction
of union dues), and s15 (leave for
trade union activities). Furthermore,
the minority trade union may acquire
ss14 and 16 rights if it is the only
sufciently representative trade
union in the workplace that already

has ss12, 13 and 15 rights. Thus,


although a commissioner may award
organisational rights to minority trade
unions, such unions should nevertheless
have substantial membership
and must effectively be the
most representative union in the
workplace. The union will lose the
ss14 and 16 rights when it is not
the most representative union in the
workplace anymore.
Can a commissioner award
organisational rights under ss12, 13,
and/or 15 in instances where a
union does not meet the threshold
established by a collective agreement
in terms of s18 of the LRA?
Section18 provides that a collective
agreement may be concluded
between an employer and a majority
trade union(s) to establish a threshold
of representativeness required for
any other trade union seeking
to obtain organisational rights.
Another amendment to s21 gives a
Commissioner the discretion (notwith
standing the collective agreement
threshold) to award such organisational
rights to minority trade unions, where
to deny them these rights would be
unfair.
Factors which must be taken into
consideration by the Commissioner
when resolving a dispute over
organisation rights, are set out in
s21. In addition to the pre-existing
requirements, the amendments
to the LRA now also require the
Commissioner to consider the
general makeup of the workplace,
including the extent to which
employees are employed in nonstandard forms of employment, such
as employees of labour brokers.

7 | Guide to the amendments 2015

THE EXTENSION OF
COLLECTIVE AGREEMENTS
CONCLUDED IN A
BARGAINING COUNCIL
(LRA s32)
Can the Minister of Labour simply
extend a collective agreement
concluded in a bargaining council to
a specic sector?
The position before the amendment
has been that the Minister was
obliged to extend such an agreement
when the parties to the Bargaining
Council were representative in
number of the employees in the
sector. The Minister in addition had
a further discretion to extend the
agreement having taken into account
a number of other factors.
Now, pursuant to the amendment to
s32(2), where a Bargaining Council
requests in writing that the Minister
extend a collective agreement
concluded in the Council to any nonparties to the collective agreement
that are within its registered scope
and are identied in the request,
the Minister must rst within 60
days of receiving such request
publish a notice in the Government
Gazette calling for comments within
21 days. Only thereafter may the
Minister extend the agreement from
a specied date and for a specied
period, thereby making it binding
on the non-parties specied in the
notice. The requirements for an
independent exemption body and an
appeal body to exempt employers or
classes of employers from some or all
of theprovisions of such a collective
agreement have also been tightened
up.

CHANGES TO PICKETING
(LRA s69)
Where are employees permitted
to picket?
Prior to the amendment employees
were only allowed to picket in a
place to which the public had access
or on their employers' premises with
its permission. Picketing was not
allowed in for instance a shopping
centre where the employer traded
in one of the shops. In terms of the
amendment, s69(2) now provides
that employees have the right to
picket at a place controlled by
someone other than their employer,
provided that person has a say in the
establishment of the picketing rules.
The employees may still picket inside

8 | Guide to the amendments 2015

their employer's business premises


if they have the necessary and
required consent from such employer.
An employer may not unreasonably
withhold its consent and in the event
that he does, a Commissioner of the
CCMA may prescribe picketing rules
which could provide such consent on
the employer's behalf.

such a right to picket, provided the


owner has had an opportunity to
make representations to the CCMA
before the CCMA may establish any
picketing rules in this regard.

What if the employer's place of


business is situated on property
belonging to a third person?

Yes. Where a party has referred


a dispute over compliance with
picketing rules to the CCMA for
conciliation, and such dispute
remains unresolved, the party
may now refer the dispute to the
Labour Court for adjudication and
enforcement of the rules.

In terms of the amendments made to


s69, employees may be permitted
to picket on property belonging
to third parties provided that such
third party owner has given its
consent for employees to do so.
Where the owner has refused such
consent, the CCMA may grant

Do parties have the right to


approach the Labour Court in respect
of picketing?

9 | Guide to the amendments 2015

CHANGES IN TERMS OF THE EMPLOYMENT EQUITY AMENDMENT ACT


UNFAIR DISCRIMINATION
On what grounds can an employee
claim unfair discrimination in the
workplace and will that change?
The grounds are 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.
The Employment Equity Amendment
Act 47 of 2013 (EEAA) amends s6
of the EEA to include an additional
ground for discrimination, being "any
other arbitrary ground".
The amendments seek to clarify that
discrimination is not only prohibited
on a ground listed in that section, but
also on any other arbitrary ground.

A wage differentiation based on a


prescribed ground listed or any other
arbitrary ground will amount to unfair
discrimination, unless the employer
can show that differences in wages
or other conditions of employment are
in fact based on fair criteria such as
experience, skill, responsibility and
the like.
The Minister of Labour published new
Regulations to the EEA on 1 August
2014, which took effect immediately.
Equal work, according to the
Regulations, is work that is the same;
substantially the same, or of the
same value as the work of another
employee employed by that employer.
The Regulations further indicate
how employers should go about
determining equal pay disputes:

This change creates consistency with


the terminology used in the LRA that
prohibits discriminatory dismissals.
Does an employer have to give its
employees equal pay for equal work?
If so, on what grounds may there be
a differentiation in pay?
A new s6(4) is added to the EEA,
which deals explicitly with unfair
discrimination by an employer in
respect of the terms and conditions
of employment of employees doing
the same or similar work or work of
equal value.

it must rst be established


(i) whether the work concerned is
of equal value; and
(ii) whether there is a difference
in terms and conditions
of employment, including
remuneration; and
it must then be established
whether any difference identied
constitutes unfair discrimination,
applying the provisions of s11 of
the EEA.

The Regulations further offer guidance


regarding what would constitute
work that is of equal value. Factors
such as the responsibility demanded
of the work; skills required; and
the physical, mental and emotional
effort required to perform the work
as well as the physical conditions
under which the work is done, are all
relevant (not a closed list).
It also provides an indication of the
circumstances under which employers
may differentiate between the terms
and conditions of employment offered
to employees who perform work of
equal value (eg the individuals'
respective seniority or length of service;
their respective performance etc).
A draft Code of Good Practice on
Equal Pay is also pending, which will
provide further guidance on how to
deal with equal pay issues.
If an employee alleges unfair
discrimination based on a listed
ground or on any other arbitrary
ground, what must an employer
prove in order to escape liability?
The EEAA revised the burden of proof
in unfair discrimination disputes to
distinguish between discrimination
on listed grounds and discrimination
based on an 'arbitrary ground'.
If unfair discrimination is alleged on
a ground listed in s6(1), the employer
against whom the allegation is
made must prove, on a balance of
probabilities, that such discrimination:

10 | Guide to the amendments 2015

did not take place as alleged; or


is rational and is not unfair, or is
otherwise justiable.

If unfair discrimination is alleged on


an arbitrary ground, the complainant
must prove, on a balance of
probabilities, that:

the conduct complained of is not


rational;
the conduct complained of
amounts to discrimination; and
the discrimination is unfair.

A STREAMLINED
ENFORCEMENT PROCEDURE
IN TERMS OF THE EEAA:3
Can parties refer unfair
discrimination claims to the CCMA for
arbitration?
In terms of s10(5) of both the
previous Act and the Amended Act,
any unfair discrimination claim must
rst be referred to the CCMA for
conciliation.
In terms of s10(6) of the existing Act,
upon non-resolution of the dispute
during conciliation, parties would
only be able to refer the matter to
arbitration if the consent from both
sides of the dispute was obtained.
In all other circumstances, unfair
discrimination claims were to be
adjudicated by the Labour Court.
In terms of s10(6) of the Amended
Act, the adjudication of unfair
discrimination claims is more
streamlined, as parties to a dispute
are given the option to refer the
dispute to arbitration at the CCMA
under the following circumstances:

employees may refer disputes


to the CCMA for arbitration
in terms of s10(6)(b)(i), if the
employee's cause of action
arises from an allegation of
unfair discrimination on the
grounds of sexual harassment;

employees who earn less


than the earnings threshold
will be entitled to refer any
discrimination claim to the
CCMA for arbitration in terms of
s10(6)(b)(ii); and
any party to the dispute may
refer the dispute to the CCMA
for arbitration in terms of
s10(6)(c), if all the parties to the
dispute consent thereto.

If employees earn more than the


above-mentioned amount, they will
only be entitled to bring claims
based on unfair discrimination
arising from sexual harassment to
the CCMA for arbitration, unless all
parties consent thereto pursuant to
s10(6)(c) of the Amended Act.
Is a party given the opportunity
to either review or appeal an
arbitration award handed down
by the CCMA regarding an unfair
discrimination claim?
In terms of s10(8) of the Amended Act:
"A person affected by an award of a
CCMA commissioner made pursuant
to a dispute referred in terms of
paragraph (b) of subsection (6) may
appeal to the Labour Court within
14 days of the date of the award;
provided that the Labour Court, on
good cause shown, may extend the
period in which a person may appeal."
Arbitration awards in unfair
discrimination claims will therefore
be subject to appeal (as opposed to
review).
Furthermore, parties will only have
a period of 14 days (calendar days)
after the award is given to give
notice of their intention to appeal the
award, unless the Labour Court grants
a time-extension in this regard.

3
All references to the "previous Act" refer to the Employment Equity Act, 55 of 1998 and all
references to the "Amended Act" refer to the Employment Equity Amendment Act, 47 of 2013.

11 | Guide to the amendments 2015

Is there a limit to the compensation


which may be awarded by a
commissioner of the CCMA in an
unfair discrimination dispute?
No limit is imposed on the
compensation that a commissioner
of the CCMA can make in respect of
compensation in unfair discrimination
cases, but an award of damages,
as a separate claim, will be limited
to an amount equal to the earnings
threshold.
Compensation refers to the
amounts which Courts or
tribunals may award, based
on a successful statutory claim,
such as compensation for unfair
dismissal. Employees could however,
independently, and as separate
cause of action, rely on a common
'law damages' claim. To the extent
that the common law claim so made
out is based on contract, damages
are normally calculated by reference
to the position the claimant would
have been in, had the contract
been properly performed. Different
types of common law claims apply
different methods of calculation of
damages.
Compensation, other than a
damages claim, is a discretionary
award that is not limited to an
actual proven loss and, in fact a
claimant need not prove any loss
at all to be successful in a claim
for compensation - it is sufcient to
prove the statutory cause of action
such as unfair dismissal.
Enforcement of compliance orders
The Amended Act will do away with
objections and appeals against
compliance orders issued by
inspectors. When there is noncompliance with a compliance order
the Department may take the matter
directly to the Labour Court.

CHANGES IN TERMS OF THE BASIC CONDITIONS OF EMPLOYMENT


AMENDMENT ACT
May an employer compel an
employee to purchase something in
order to do their work (ie uniform)?
No. An employer must now provide
all items which the employee is
expected to have unless it is a
scheme in which the employee will
derive nancial benet or the price
of the goods, products or services
provided by the scheme are fair and
reasonable.
Will the Minister be able to make
sectoral determinations for employers
and employees who are not covered
by any other sectoral determination?
Yes. The Minister now has the power
to make a blanket determination
for employers and employees who
are not covered by a sectoral
determination.
Can a sectoral determination by the
Minister now regulate the adjustment
of remuneration increases?
Yes. The Minister may provide for the
adjustment of remuneration by way of
minimum rates or minimum increases.

12 | Guide to the amendments 2015

Can a sectoral determination by the


Minister apply to sub-contracting?
Yes. The Minister may make a
sectoral determination to prohibit or
regulate task-based work, piecework,
homework, sub-contracting and
contract work.
Can the Minister make a sectoral
determination to regulate the
threshold for automatic organisational
rights of trade unions?
Yes, the Minister can, subject to
certain provisions, make a sectoral
determination that will set the
threshold of representativeness
through which a trade union will have
automatic organisational rights in
respect of all workplaces covered by
that sectoral determination.
Can the Minister make a sectoral
determination to regulate the
conditions of service of labour
tenants?
Yes. The Minister may, through a
sectoral determination, establish one
or more methods for determining
the conditions of service for labour
tenants who have a right to occupy
part of a farm.

May the Minister make a sectoral


determination to regulate a matter in
a sector or area for which a statutory
council is established?
No. The Minister can only make
a sectoral determination in these
circumstances if it will cover
employees who are covered by a
collective agreement concluded in a
statutory council regulating matters in
respect of which that statutory council
has concluded a statutory agreement.

EMPLOYMENT SERVICES ACT


At the time of preparing this publication, the date of commencement has not been proclaimed.
What requirement does a foreign
national need to meet to be
employed within the Republic of
South Africa?
The foreign national must produce
an applicable and valid work permit,
issued in terms of the Immigration
Act.
Who is considered a foreign
national?
An individual who is not a South
African citizen or does not have a
permanent residence permit in terms
of the Immigration Act is regarded as
a foreign national.
What steps need to be taken by the
employer before a foreign national
can be employed in the Republic of
South Africa?
It is mandatory that employers satisfy
themselves that that there are no
South African citizens or permanent
residents within the Republic with
suitable skills to ll a vacancy, before
recruiting a foreign national.

13 | Guide to the amendments 2015

It is optional for employers to make


use of public employment services
or private employment agencies
to assist them in recruiting suitable
employees who are South African
citizens or permanent residents.
The employer needs to prepare a
skills transfer plan in relation to any
position in which a foreign national
is employed.
The employer has to comply with
the Regulations that the Minister
may make after consulting with the
Employment Services Board.
What factors may the Minister take
into consideration when making
regulations?
The Minister may consider any
requirement which is consistent with
the Immigration Act.
The Minister may differentiate
between different categories of visas
issued in terms of the Immigration
Act and different categories of work.

What consequences may the


employer suffer when employing
someone without a valid work
permit?
The employee will be entitled to
enforce any claim that the employee
may have in terms of any statute or
employment relationship against his
or her employer or any person in
terms of the law.
What are the prohibited acts by
employers in respect of foreign
nationals?
An employer may not require or
permit a foreign national to perform
any work which such foreign
national is not authorised to perform
in terms of his or her work permit or
to engage in work contrary to the
terms of their work permit.

What is required from employers with


respect to the reporting of vacancies
and the lling of positions?

What is the process to follow for the


registration of private employment
agencies?

The Minister may after consulting


with the Employment Services Board,
make regulations requiring employers
to notify the Department of Labour of:

Any person wishing to provide


employment services must apply to
the registrar in the prescribed form
and manner in order to register as a
private employment agency.

any vacancy or new position in


their establishment in a manner
and within such period as the
Minister may determine;
the employment of any work
seeker referred by a labour
centre; and
any matter necessary to promote
the provision of efcient
matching services.

A regulation made by the Minister


may differentiate between different
categories of work and different
categories of employers.
What is a private employment
services agency?
It is an institution that will provide
job seekers with certain services
such as matching job seekers with
certain services with available work
opportunities, registering job seekers,
job vacancies and facilitating other
employment opportunities.

14 | Guide to the amendments 2015

The registrar will be an ofcial


designated from the Department of
Labour by the Minister.
The registrar must, within 60 days
of the application, issue a private
employment agency with a certicate
of registration, if the application
is successful or a letter containing
reasons, notifying the private
employment agency that it has not
been granted registration, in
accordance with the Promotion of
Administrative Justice Act, 2000
(Act No. 3 of 2000).
The registration certicate of a
private employment agency must
specify whether or not the private
employment agency is permitted to
perform the functions of a temporary
employment service.

The registrar must maintain in


electronic form a register of private
employment agencies that have been
registered in terms of this Act and
must make suitable arrangements
for the public to access the register.
The private employment agency must
display its certicate of registration in
a conspicuous place at the premises
from where it operates.
A person may not operate a private
employment agency except in
accordance with the provisions of this
Act and the terms of its registration.
What are the restrictions with
respect to the registration of private
employment agencies?
The criteria for registering private
employment agencies will differentiate
between private employment
agencies - that are registered as
temporary employment services; or
those that only seek to perform other
employment services as contemplated
in the Act.

CONTACT US

For more information about our Employment practice and services, please contact:

Aadil Patel
National Practice Head
Director
T +27 (0)11 562 1107
E aadil.patel@dlacdh.com

Gavin Stanseld
Director
T +27 (0)21 481 6314
E gavin.stanseld@dlacdh.com

Ndumiso Zwane
Senior Associate
T +27 (0)11 562 1231
E ndumiso.zwane@dlacdh.com

Gillian Lumb
Regional Practice Head
Director
T +27 (0)21 481 6315
E gillian.lumb@dlacdh.com

Michael Yeates
Director
T +27 (0)11 562 1184
E michael.yeates@dlacdh.com

Anli Bezuidenhout
Associate
T +27 (0)21 481 6351
E anli.bezuidenhout@dlacdh.com

Johan Botes
Director
T +27 (0)11 562 1124
E johan.botes@dlacdh.com

Faan Coetzee
Executive Consultant
T +27 (0)11 562 1600
E faan.coetzee@dlacdh.com

Katlego Letlonkane
Associate
T +27 (0)21 481 6319
E katlego.letlonkane@dlacdh.com

Mohsina Chenia
Director
T +27 (0)11 562 1299
E mohsina.chenia@dlacdh.com

Kirsten Caddy
Senior Associate
T +27 (0)11 562 1412
E kirsten.caddy@dlacdh.com

Inez Moosa
Associate
T +27 (0)11 562 1420
E inez.moosa@dlacdh.com

Fiona Leppan
Director
T +27 (0)11 562 1152
E ona.leppan@dlacdh.com

Nicholas Preston
Senior Associate
T +27 (0)11 562 1788
E nicholas.preston@dlacdh.com

Thandeka Nhleko
Associate
T +27 (0)11 562 1280
E thandeka.nhleko@dlacdh.com

Hugo Pienaar
Director
T +27 (0)11 562 1350
E hugo.pienaar@dlacdh.com

Lauren Salt
Senior Associate
T +27 (0)11 562 1378
E lauren.salt@dlacdh.com

Sihle Tshetlo
Associate
T +27 (0)11 562 1196
E sihle.tshetlo@dlacdh.com

15 | Guide to the amendments 2015

This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought
in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.

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