|
| Editor's Note |
Every month HRTorQue tries to deliver relevant content to its clients.
In this newsletter we are pleased to bring you the following:
| • |
An update on a breaking case on strike interdicts; |
| • |
An overview of the recently promulgated Employment Services Act; |
| • |
A reminder of the key aspects of the Occupational Injuries and Diseases Act (COIDA); and |
| • |
Useful tips and viewpoints from our professionals on medical certificates. Whether you as an employer can demand to know the reason for your employee's absence and whether you have to accept a medical certificate from a traditional healer. |
We hope the newsletter is useful. Don't forget our team are always available to provide further guidance with your employment issues. |
| Top of Page |
| |
| Table of Contents |
1. Breaking Case on Strike Interdicts - Violence
2. Employment Services Act
3. The Compensation for Occupational Injuries and Diseases Act (COIDA)
4. Medical Certificates - Reason For Absence (Diagnosis)
5. Medical Certificates and Traditional Healers
6. Contact the HRTorQue Team |
| Top of Page |
| |
| 1. Breaking Case on Strike Interdicts - Violence |
| Author: Bruce MacGregor, MacGregor Erasmus Attorneys |
The nature of strikes in South Africa over the past five years has become consistently more violent, to the extent that strikers often expect and/or believe that violence is the only method of forcing a result in a strike.
Strikes are designed to be a lawful means of allowing employers and workers to engage with each other in power play, in an endeavour to force a result related to matters of mutual interest, usually dealing with issues such as wages and employment conditions.
Traditionally employers have relied on the police and their own security to try and combat the violence which is steadily getting worse. Recent reprisal tactics have included strikers going to the home of an employee who is not striking, setting the house alight, taking a photo and SMSing the picture to the working employee, or to launch attacks in the middle of the night.
These types of tactics would perhaps be considered as some form of warfare or terrorism in other countries but have become par for the course here in South Africa.
The irony of the situation is that should roles be reversed and employers orchestrate similar violence (during lock-outs for example), South Africa would find itself visited by an armed force appointed by the United Nations or the International Criminal Court.
Our Courts have queried from time to time their concerns with whether violent strikes are still strikes. See FAWU v Premier Foods (2010) ILJ 1654 (LC), "Strikes that are marred by this type of violent and unruly conduct are extremely detrimental to the legal foundations upon which labour relations in this country rest. The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. As already indicated, although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violent and criminal conduct to accede to their demands."
In a recent matter of Willowton Logistics, a division of Willowton Group (Pty) Ltd vs Tirisano (Transport and Services Workers Union), unreported, Case No. 0571/15, our firm brought an urgent application to declare that the strike was no longer a strike by virtue of the fact that the purpose of the strike was no longer a matter of mutual interest but merely the perpetuation of violence. The Court granted a final interdict on this basis and brought the strike to an end.
Going forward, this is an important area to consider in circumstances of violent strikes. |
| Top of Page |
| |
| 2. Employment Services Act |
| This article is provided by Momentum Health. |
The Employment Services Act came into effect on 9 August 2015 with the exception of section 13 which deals with the registration of private employment agencies.
The new Act aims to repeal all the employment services provisions contained in the Skills Development Act, to provide for a range of measures to promote employment and to regulate the employment of foreigners.
The Act makes provision for the following:
1. Comprehensive and integrated free public employment services.
2. Registration and regulation of private employment agencies.
3. Establishment of schemes to promote the employment of young job seekers and other
vulnerable persons.
4. Schemes to assist employees of enterprises in distress to retain employment.
5. The establishment of the Employment Services Board.
The Purpose of the Act
The Act aims to establish productivity within South Africa by decreasing the levels of unemployment and also by giving training to unskilled workers. It further addresses the matter of the employment of migrants and foreign nationals. A secondary focus of the Act is that of providing for schemes to assist employees of enterprises in distress to retain employment rather than being retrenched.
Public Employment Service
One of the ways of achieving the aims mentioned above is by creating a Public Employment Service which will be established and managed by the state. This institution will then provide state assistance to unemployed job seekers.
The Public Employment Service will assist by registering job seekers and finding them suitable placement opportunities. They will also provide career information to job seekers.
Employers in certain industries may be required to register vacancies with the Public Employment Service. Employers may also be required to interview any person recommended by the Public Employment Agency.
Foreign Nationals
One of the key topics that this Act touches on is the employment of foreign nationals. 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.
According to the Act, foreign nationals employed in South Africa will be protected by fair labour practices and may only perform work as authorised in terms of their work permits. If an employer employs someone without a valid work permit, there would be consequences for that employer. The employee will be entitled to enforce any claim that he may have in terms of any statute or employment relationship against his employer or any person in terms of the law.
It is compulsory that every employer satisfy themselves that there are no South African citizens or permanent residents within the Republic with suitable skills to fill a vacancy before they recruit a foreign national. Once a foreign national is employed, the employer needs to prepare a skills transfer plan for that person in that specific position. An employer may not have a foreign national engage in work that is contrary to the terms of their work permit.
Private Employment Agencies - not effective yet
Another key topic which ties in with the Labour Relations Amendment Act is that of the Private Employment Agencies.
Private Employment Agencies are institutions that will provide certain services, such as registering job seekers, matching available work opportunities for job seekers and facilitating other employment opportunities.
Any person wishing to provide employment services must apply to the Registrar in the prescribed form and manner in order to be registered as a Private Employment Agency. The Registrar will be a designated official from the Department of Labour as chosen by the Minister of Labour. The Registrar must within 60 days of the application either issue the certificate of registration, if successful, or a letter with the reasons for the certificate not being granted. Very importantly, the registration certificate must specify whether or not the Private Employment Agency is permitted to perform functions of a Temporary Employment Service (TES).
As mentioned above, the provisions relating to this section has not yet come into effect. We will send out a further communication once this effective date is known.
Conclusion
This Act has been put in place to promote employment, growth and workplace productivity, while also improving the access to the labour market for job seekers. It will provide new opportunities and improve their chances and prospects of finding employment. Most importantly, it gives effect to the right to fair labour practices as entrenched in our Constitution.
We expect Regulations to be issued in the near future to serve as a guide for the purposes of implementing the Employment Services Act.
Editor's Note: HRTorQue has recently launched an Employer Health Check to give clients a good idea of how they stack up against all the regulations - both identifying risk areas and opportunities. If you would like one of our consultants to take you through this heath check (it is a free service), please give us a call. |
| Top of Page |
| |
| 3. The Compensation for Occupational Injuries and Diseases Act (COIDA) |
| This article is provided by Momentum Health. |
The main purpose of the Compensation for Occupational Injuries and Diseases Act (COIDA) is to provide compensation for all permanent, casual, temporary or contracted employees who in the course of their employment might suffer:
1. Disablement as a result of a work-related injury;
2. Disablement as a result of contracting a work-related disease, or
3. Death as a result of a work-related injury or disease.
From 1 April 2015, the maximum amount of earnings per annum that a person may earn in terms of COIDA is R355 752. The minimum level of pensions that are paid has also been increased to R1500 per month in respect of all existing pensioners, R1245 per month to all spouses and R623 per month to a child. The schedule that determines the manner in which compensation is calculated was also amended by way of the recommended maximum and minimum compensation amounts having been changed and became effective 1 April 2015.
Compensation in terms of this Act can be paid out by means of lump sum payments, periodical payments or monthly pension payments.
Can an employer who has Group Life Cover (GLA) and Permanent Health Insurance / Lump sum Disability (PHI / PTD) benefits for their employees, decide not to register under COIDA?
COIDA provides that all employers are required to register with the Commissioner. However, section 84(1)(b) of COIDA provides as follows:
"No assessment in favour of the compensation fund shall be payable in respect of employees whose -
| (b) |
Employer has with the approval of the Director-General obtained from a mutual association a policy of insurance for the full extent of his potential liability in terms of this Act to all employees employed by him, for so long as he maintains such policy in force." |
COIDA defines a mutual association as "a mutual association licensed under section 30".
Section 30(1) provides as follows:
"(1) The Minister may, for such period and subject to such conditions as he may determine, issue a licence to carry on the business of insurance of employers against their liabilities to employees in terms of this Act to a mutual association which was licensed on the date of commencement of this Act in terms of section 95(1) of the Workmen's Compensation Act: Provided that the Minister may, from time to time, order that, in addition to any securities deposited in terms of the Insurance Act 27 of 1943 (repealed by the Long term Insurance Act 1998), and the Workmen's Compensation Act, securities considered by the Director General to be sufficient to cover the liabilities of the mutual association in terms of this Act be deposited with the Director General or his or her nominee..."
Accordingly, an employer will need:
| 1. |
To obtain a policy of insurance for the full extent of their potential liability; |
| 2. |
From a mutual association licensed under section 30 of the Act, and |
| 3. |
The employer will need the approval of the Director General, to be exempt from the provisions of COIDA. |
Any mutual association should have been licensed to provide the benefits payable in terms of COIDA at the commencement date of COIDA; in other words it should have been licensed under the previous Workmen's Compensation Act. There are currently only two licensed mutual associations, namely Federated Employers Mutual Assurance Company (Pty) Ltd, for the construction industry, and Rand Mutual Assurance Company Limited, for the mining industry. As part of the licensing conditions, they report to the Compensation Commissioner.
Looking at the provision of section 30(1), it appears that the Minister can only continue with the licensing of a mutual association if it was licensed at the commencement date of COIDA. Furthermore, no new licenses can be issued.
In Conclusion:
Unless the employer is in the construction or mining industry, and has a policy of insurance for the full extent of their potential liability with one of the two licensed mutual associations, they will not be able to be exempt from COIDA.
Editor's Note: If you find you are falling behind in your COIDA admin, but you don't want to hire anybody new to deal with the backlog, HRTorQue has a brilliant service available to clients. Our HRAdmin product provides clients with an HRTorQue resource to deal with the backlog (whether it is keeping track of employee records or even filing COIDA or other returns). Give us a call if you would like to learn more. |
| Top of Page |
| |
| 4. Medical Certificates - Reason For Absence (Diagnosis) |
| Author: Melany Bydawell |
Can an employer insist on the employee stating the reason for their absence on sick leave?
An employer may not insist on disclosure of the diagnosis from either the Employee or Medical Practitioner.
Medical certificates should state that the employee was unable to work on account of sickness and/or injury and state the duration of the absence. The certificate must be issued and signed by a medical practitioner. |
| Top of Page |
| |
| 5. Medical Certificates and Traditional Healers |
| Author: Melany Bydawell |
Is an employer obligated to accept certificates from Traditional Healers?
In terms of Section 23 of the Basic Conditions of Employment Act, the following are in a position to issue a valid medical certificate:
1. A medical practitioner registered with the Health Professions Council of South Africa.
2. Any person who is certified and registered with a professional council established by an
Act of Parliament.
If a Traditional Healer is registered with the Traditional Health Practitioners Council of South Africa, he/she will fall under (2).
In terms of the transitional arrangement under the Traditional Health Practitioners Act 22 of 2007, (promulgated April 2014), traditional health practitioners had until May 2015 to register with the new Council. |
| Top of Page |
| |
| 6. Contact the HRTorQue Team |
Head Office (Durban)
Phone: 031 564 1155
Fax: 031 564 1228
Email: [email protected]
Website: www.hrtorque.co.za
Address: 163 Umhlanga Rocks Drive
Durban North, KwaZulu-Natal |
| |
 |
| |
Sales
Melany Bydawell: 031 582 7425
[email protected] or 083 441 5618
Payroll & HR Administration
Karen van den Bergh: 031 582 7413
[email protected] or 082 891 1722
Human Resources / Employee Relations
Melany Bydawell: 031 582 7425
[email protected] or 083 441 5618 |
|
|
|
|
|
|
