|
 |
HRTorQue REPORTER
|
Table of Contents |
1. What is conciliation at CCMA?
2. Company Car Fringe Benefit - Rental Vehicles
3. Notice from Compensation Fund
4. The New Companies Act of 2008 - Now in Force
5. Budget Speech Update - Travel Reimbursements
6. Budget Speech Update - Local Subsistence Allowances and Advances
7. Budget Speech Update - Medical Scheme Contribution Credit
8. Discrimination in the Workplace: Fair vs Unfair
9. Return of Earnings - W.As.8: March 2012 - February 2013
10. Contact the HRTorQue Team |
1. What is conciliation at CCMA? |
Author: Nicky Hardwick |
As a member of an Employer's Organisation, HRTorQue Outsourcing has the ability to represent its clients at Conciliations and Arbitrations at the CCMA.
Conciliation is a process held at the CCMA where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement. At this point it is not about who is right and who is wrong. Should the matter settle, neither party walks away having won or lost the case. At conciliation a party may appear in person or be represented by a director or employee of that party or any member, office bearer or official of that party's registered trade union or registered employer's organisation. The meeting is conducted in an informal way.
The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the commissioner and each party may also be held. Parties are encouraged to share information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions. The question is often asked, "Why go to conciliation and settle?", especially in situations where the employee was dismissed and dismissed for good and fair reason.
Very often the decision to settle at conciliation is purely a financial one, based on the most economical outcome. For example, to settle with an employee who requests a month's wages at R1500 per month would be more beneficial versus taking the matter to arbitration. Arbitration may involve bringing witnesses out of the workplace to spend the day or more at CCMA including senior management and executives, preparation time for the arbitration and legal representation. Another major aspect of course rests with the fact that your fate at arbitration lies in the hands of the commissioner and that you may lose the case.
When deciding whether or not to settle at CCMA, ensure that you have considered all the factors whilst the decisions are still in your hands. |
2. Company Car Fringe Benefit - Rental Vehicles |
Author: David Beattie |
For further consulting and policies on this topic please contact David Beattie.
It has been noted that employers have increasingly been utilising rental vehicles for business purposes, as opposed to directly owning them or acquiring them via finance leases.
Where these vehicles are then provided to employees for business use, the current calculation of the fringe benefit of the private use of the vehicle is not appropriate. It has been proposed that the fringe benefit be calculated using the rental value as the starting point. This will be applicable if the vehicle is acquired under an operating lease and the operating lease was concluded by parties who are not connected persons in relation to each other, transacting at arms' length.
For this transaction to be viewed as an operating lease, the lease agreement must contain the following elements:
• The employer must rent the vehicle from a lessor in the ordinary course of the lessor's business (other
than banking, financial services business or insurance business).
• The vehicle may be leased by the general public for a period of less than one month.
• The costs of maintaining the vehicle must be borne by the lessor.
• The risk of loss or destruction of the vehicle must not be assumed by the lessee.
The monthly value of the vehicle rental for fringe benefit purposes will be the actual costs incurred by the employer under the operating lease as well as the cost of fuel in respect of that vehicle.
Where an employee is allocated a fuel card that is not specifically allocated to that vehicle, the taxable benefit that results must be reflected separately as a travel allowance. Where the maintenance, license and insurance in respect of the vehicle have been split from the main rental agreement, the provision of those services to the employee by the employer would result in a different fringe benefit that had to be valued separately.
SARS has stated that the proposed amendments are effective in respect of years of assessment commencing on or after 1 March 2013. |
3. Notice from Compensation Fund |
Author: Karen van den Bergh |
The following notice is copied verbatim from an electronic communication received on 31 December 2012 from the Income Directorate of the Compensation Fund.
The year has presented many challenges, both internally and externally, that have prevented us from fulfilling our legislative mandate optimally. Fraudulent activities are still negatively affecting the finalisations of the assessments. We have noted with great concern that the issuing of Letters of Good Standing has spiralled out of control to the extent that these are issued fraudulently and, in most cases, not in accordance with the Compensation Fund Policy.
In the last few weeks of December 2012, a number of cases have been identified and reported where Letters of Good Standing are issued to companies that:
• Have closed businesses.
• Have outstanding debt with the Fund.
• Have not submitted annual returns.
• Have not been assessed.
• Reproduced and altered letters of Good Standing.
The internal audit findings also paint a very disturbing picture. Letters of Good Standing are issued to businesses whose status cannot be viewed on the system. I have no doubt in my mind that this letter has been issued to businesses that are not registered with the Fund. While we acknowledge the backlogs we are still resolving, that have played a major contributing factor to issuing these letters to non-complying businesses; it has become necessary to review the conditions under which the Letter of Good Standing will be issued.
This has resulted in us suspending the issuing of Letter of Good Standing until 4 January 2013. Efforts are being made to improve security, internal controls and risk management processes. We regret any inconveniences this may have caused your businesses.
It is also worth noting that this letter is now formally a requirement by National Treasury to be issued to the Building and Construction industry.
It goes without saying that while there are still challenges experienced; we are proud to have reached a very important milestone, in the history of this organisation, by successfully launching the ROE WEBSITE in May 2012. We are grateful for the support and encouragement provided by many of our external stakeholders, in particular the payroll administrators and consultants, who went beyond their call of duty to ensure the success of this initiative. This is indeed a pronounced sign of hope that the Fund is moving in the right direction. |
4. The New Companies Act of 2008 - Now in Force |
Author: Karen van den Bergh |
Pre-Existing Companies on the Adoption of a New Memorandum of Incorporation (MOI) - The New Companies Act of 2008 now in force.
If you require assistance contact Karen. This can be done at a reasonable fee!
Due to the uncertainty surrounding the new MOI and the teething problems that CIPC experienced last year, companies initially held replacing their Memorandum and Articles with the new MOI.
However: |
| • |
The New Companies Act, 2008 requires that existing companies bring their Memorandum and Articles of Association in line with the new Act by May 2013. |
| • |
By Adopting the new MOI, many companies will also avoid the need to prepare audited financial statements (private Companies who do not bring their MOI into line with the new act remain subject to a full audit). |
| • |
As from May 2013, the Commission will begin issuing compliance notices to companies who have not yet registered their new MOI. |
|
It is therefore recommended that all companies change their Memorandum and Articles to be in line with the new requirements as soon as possible to avoid the rush with CIPC in March and April next year.
Most private companies will want to use the short MOI which will be suitable for: |
| • |
Companies where shareholders and directors are the same. |
| • |
Companies where there are no separate shareholders agreements. |
| • |
Subsidiaries who have the same or similar directors as the holding company. |
| • |
Companies where the relationship between shareholders and directors is such that there is no need for the shareholders to exercise control over the directors. |
| • |
Companies that want their directors to utilise their powers to make rules relating to the governance of the company. |
|
5. Budget Speech Update - Travel Reimbursements |
Author: Karen van den Bergh |
The alternative rate per kilometre has been increased from R 3.16 per km to R 3.24 per km. This rate is applicable at the option of the recipient where the distance travelled for business purposes does not exceed 8000 kilometres per annum and no other form of compensation is received.
Update your remuneration policies in this regard.
If you are a HRTorQue Payroll client, please contact your payroll administrator or our tax manager, Dave Beattie, if you require assistance in this regard. |
6. Budget Speech Update - Local Subsistence Allowances and Advances |
Author: Karen van den Bergh |
The deemed expended portion of the subsistence allowance is:
• R 319 per day for meals and incidental costs
• R 98 for each day for incidental costs only
Update your remuneration policies in this regard.
If you are a HRTorQue Payroll client, please contact your payroll administrator or our tax manager, Dave Beattie, if you require assistance in this regard. |
7. Budget Speech Update - Medical Scheme Contribution Credit |
Author: Karen van den Bergh |
The medical scheme tax credit that will be effective from 1 March 2013 is:
• R 242 in respect of the taxpayer
• R 242 for the first dependant
• R 162 for each additional dependant
If you are a HRTorQue Payroll client, your payroll rules will be automatically amended prior to you running your March payroll. |
8. Discrimination in the Workplace: Fair vs Unfair |
Author: Nicky Hardwick |
Did you know that there is no limit on the monetary award for unfair discrimination at CCMA?
In terms of the South African Constitution and, more specifically, the Employment Equity Act, no employer may unfairly discriminate against a person.
So what does it mean to discriminate? Discrimination can be defined as the treatment or consideration of a person, or making a distinction in favour of or against a person based on the group, class or category to which the person belongs rather than the individual's merit. These could include race, gender, sexual orientation, age, beliefs, conscience etc.
The Act states that no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, 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. What is interesting to note in all of this is the word 'unfairly', which implies that you can you may not unfairly discriminate, which means that you can discriminate fairly.
There are four grounds under which discrimination would be deemed fair: |
| 1. |
Discrimination based on AFFIRMATIVE ACTION, i.e. in favour of designated groups (black people, women and people with disabilities). |
| 2. |
Discrimination based on the INHERENT REQUIREMENTS OF THE JOB, i.e. years of experience, qualification, driver's license, technical skill etc. |
| 3. |
Discrimination based on LAW, not allowing a child under the age of 15 to work. |
| 4. |
Discrimination based on PRODUCTIVITY, i.e. bonuses for performance. This is provided that the criteria used for assessing the performance are fair, reasonable and objective.
|
|
How, as a business owner or HR Manager, do you ensure that you are not unduly accused of unfair discrimination?
1. Clear, objective and standardised recruitment and interview processes
2. Objective and measurable job profiles
3. Employment Equity policies
4. Objective and measureable performance appraisal systems |
9. Return of Earnings - W.As.8: March 2012 - February 2013 |
Author: Karen van den Bergh |
On or before 30 April 2013, you are required to submit this Return of Earnings to the Department of Labour, this is legislated under the: COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT (NO. 30 OF 1993). Each registered business must submit a separate return.
This Act replaces the Workmen's Compensation Act and provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, and for death resulting from injuries and diseases. The benefits are paid from the Compensation Fund, which gets its money from compulsory contributions, paid by employers. All employers carrying out business within the Republic of South Africa are required to register. If you require more information regarding this Act, please contact me.
Permanent, temporary and casual employees are to be included in this return. If you have casual or temporary employees that you do not put on your payroll that we do not have records for, please send this information to Kacey, so they can be included along with the payroll information for the year. The directors or members are to be reflected separately on the report. If they are not paid via the payroll, please advise Kacey of this information.
We are required to report on the earnings to a maximum of R 292 031.00 per employee per annum, for the tax year March 2012 to February 2013.
You are also required to make an estimation of the remuneration and number of employees monthly for the next tax year that will begin shortly. This enables the Commissioner to budget for the following year, and to fix the new OID limit. At the time of sending this communication, the limit for the tax year March 2013 to February 2014, has not been published yet.
If you have not requested this service from us in the past and require us to complete and submit this return on your behalf, please contact Kacey on [email protected]. If we have submitted from you in the past then Kacey will contact you via email for the details we require. The cost for this service is R500.00.
The Department of Labour have recently made an online service available, which we now have access to. Via this portal we are able to logon to the database and check the status of the returns for the clients for whom we provide this service, and to capture the returns directly into the database. Once we have submitted the ROE via the online service, you will be assessed immediately.
We will email that assessment to you and you must pay within 30 days.
In order to motivate employers to register on the website and speed up the assessment and payment process, an incentive has been granted to employers so that they receive a benefit for using the REO Website. These incentives have been granted by the Director-General of Labour and are applicable for the 2013/14 financial year.
The incentive will constitute the following:
• Pay within 30 days - 10% discount on assessment value
• Pay within 60 days - 5% discount on assessment value
• Pay within 90 days - 2% discount on assessment value
The interest and penalties will not be levied until 30 June 2013.
Unfortunately we cannot make this payment for you.
It must be made directly from your organisation to the Compensation Commissioner.
You have the following payment options available:
Paying by Cheque
Employers can send a cheque to: The Compensation Commissioner, PO Box 955 Pretoria 0001. If they send a cheque, employers must include the remittance advice part of the notice of assessment with the cheque. Employers should also write their reference numbers on the back of the cheque.
Paying by Direct Debit
Employers can pay the amount directly into the Compensation Fund account at any ABSA branch. A deposit slip with the banking details of the Compensation Fund is attached to the notice of assessment that employers receive. The deposit slip also has a unique deposit reference number printed on it. If employers use another deposit slip, they must make sure that they include the reference number on that slip.
Paying by Internet Banking
The reference number is the number printed on the deposit slip they receive with the notice of assessment. The banking details of the Compensation Fund are also printed on the deposit slip.
Please keep copies of all payments for your reference.
Additional information on the 2012 W.As 8 Form: |
| • |
The forms will be mailed to employers not registered on the ROE Website. |
| • |
Employers must not submit the form if registered online. |
| • |
With effect from 1 April 2013, there will be no assessment revisions entertained as a result of the fault of the employer. |
| • |
In the event that more than one return is furnished for the same assessment period, the first return submitted will be accepted as a final one. |
| • |
Criminal proceedings will be instituted for misrepresentation of facts. |
|
| Thank you for your attention to this matter. If you require further information please contact HRTorQue. |
10. Contact the HRTorQue Team |
|
| |
 |
| |
Sales
Melany Bydawell: 031 582 7425 / 083 441 5618
[email protected]
Payroll & HR Administration
Karen van den Bergh: 031 582 7413 / 082 891 1722
[email protected]
Human Resources / Employee Relations
Melany Bydawell: 031 582 7425 / 083 441 5618
[email protected] |
|
|
|
|