employment guide to the amendments 2014

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

www.cliffedekkerhofmeyr.com

EMPLOYMENTGUIDE TO THE AMENDMENTS 2015

2 | Guide to the amendments 2015

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

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.

AUTOMATICALLY UNFAIR DISMISSALS AND MATTERS OF MUTUAL INTEREST (LRA s187(1)(C))

The amendment signi cantly 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 unfairif 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:

"a dismissal is automatically unfairif 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;"

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 [2005] 3 All SA 318 (SCA).

How will this affect retrenchments?

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 dif culties when attempting to amend the terms and conditions of employment pursuant to a restructuring.1

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 2gave 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 justi ed 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.

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.

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 onthe 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.

Employers should still take care not todiscriminate 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 de nite duration, or if the employer is able to demonstrate any other justi able reason for xing the term of the contract. The employer bears the onus of proving at any proceedings that there exists a justi able reason for xing the term of the contract and that such term was agreed. In the absence of a justi able 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 haslargely 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 clientof a TES is jointly and severally liable in terms of the current s198(4) of the LRA, the employeemay 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 aclient or TES in terms of this section can be enforced againsteither 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)].


Do the amendments change anything with regard to xed term contracts [LRA s198B]?

The amendments introduce new provisions regarding the duration andstatus 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.

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 justi able due to the nature of the work or due to an alternative justi able reason. Justi able reasons may include one or more of the speci ed reasons listed in s198B or other justi able 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 de ned 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 threemonths, in the absence of a justi ablereason, will be deemed to be a permanent employee.

What is the effect of s198A of the LRA in terms of employees who earn below the earnings threshold?

Section198 still contains the de nition 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).

Section198A limits and re nes this de nition 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 de nition 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 inde nite basis by the client, if none of the s198B justi cations 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).

Fixed term employees employed forlonger than three months are to betreated on the whole not less favourably than permanent employeesand 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 lessfavourably than an employee employed on a permanent basis or performing the same or similar work. In the absence of a justi able 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 than24 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 de ned 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.


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, beingTES, 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 intendto further streamline the mechanisms for enforcing arbitration awards ofthe 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 certi ed 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 acompensation order must be equivalent to the amount of compensation ordered.

What about prescription of arbitration awards?The various con icting 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'.

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 suf ciently 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 suf ciently representative trade union in the workplace that already


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 (notwithstanding 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 non-standard forms of employment, such as employees of labour brokers.

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 speci c 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 non-parties to the collective agreement that are within its registered scope and are identi ed 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 speci ed date and for a speci ed period, thereby making it binding on the non-parties speci ed 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.

has ss12, 13 and 15 rights. Thus, although a commissioner may award organisational rights to minority tradeunions, such unions should neverthelesshave 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.


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

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.

What if the employer's place of business is situated on property belonging to a third person?

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

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.

Do parties have the right to approach the Labour Court in respect of picketing?

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.


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.

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.

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:

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 identi ed 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 ofequal 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:

did not take place as alleged; or is rational and is not unfair, or is

otherwise justi able.


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 theperiod 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 theaward, unless the Labour Court grantsa 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.

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 suf cient to prove the statutory cause of action such as unfair dismissal.

Enforcement of compliance orders

The Amended Act will do away withobjections and appeals against compliance orders issued by inspectors. When there is non-compliance with a compliance order the Department may take the matter directly to the Labour Court.


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 bene t 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.

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 thethreshold 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.

CHANGES IN TERMS OF THE BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT

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

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.

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.


At the time of preparing this publication, the date of commencement has not been proclaimed.

What is required from employers with respect to the reporting of vacancies and the lling of positions?

The Minister may after consulting with the Employment Services Board, make regulations requiring employers to notify the Department of Labour of:

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 ef cient 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.

What is the process to follow for the registration of private employment agencies?

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.

The registrar will be an of cial designated from the Department of Labour by the Minister.

The registrar must, within 60 daysof the application, issue a private employment agency with a certi cate of registration, if the application is successful or a letter containing reasons, notifying the private employment agency that it has notbeen granted registration, in accordance with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

The registration certi cate 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 certi cate 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:

Inez MoosaAssociateT +27 (0)11 562 1420E [email protected]

Anli BezuidenhoutAssociateT +27 (0)21 481 6351E [email protected]

Katlego LetlonkaneAssociateT +27 (0)21 481 6319E [email protected]

Gillian LumbRegional Practice HeadDirectorT +27 (0)21 481 6315E [email protected]

Fiona LeppanDirectorT +27 (0)11 562 1152E [email protected]

Mohsina CheniaDirectorT +27 (0)11 562 1299E [email protected]

Johan BotesDirectorT +27 (0)11 562 1124E [email protected]

Aadil PatelNational Practice HeadDirectorT +27 (0)11 562 1107E [email protected]

Michael YeatesDirectorT +27 (0)11 562 1184E [email protected]

Faan CoetzeeExecutive ConsultantT +27 (0)11 562 1600E [email protected]

Gavin Stans eldDirectorT +27 (0)21 481 6314E gavin.stans [email protected]

Hugo PienaarDirectorT +27 (0)11 562 1350E [email protected]

Ndumiso ZwaneSenior AssociateT +27 (0)11 562 1231E [email protected]

Kirsten CaddySenior AssociateT +27 (0)11 562 1412E [email protected]

Nicholas PrestonSenior AssociateT +27 (0)11 562 1788E [email protected]

Lauren SaltSenior AssociateT +27 (0)11 562 1378E [email protected]

Sihle TshetloAssociateT +27 (0)11 562 1196E [email protected]

Thandeka NhlekoAssociateT +27 (0)11 562 1280E [email protected]

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.

BBBEE STATUS: LEVEL THREE CONTRIBUTOR

JOHANNESBURG

1 Protea Place Sandton Johannesburg 2196, Private Bag X40 Benmore 2010 South Africa Dx 154 Randburg and Dx 42 Johannesburg

T +27 (0)11 562 1000 F +27 (0)11 562 1111 E [email protected]

CAPE TOWN

11 Buitengracht Street Cape Town 8001, PO Box 695 Cape Town 8000 South Africa Dx 5 Cape TownT +27 (0)21 481 6300 F +27 (0)21 481 6388 E [email protected]

www.cliffedekkerhofmeyr.comCliffe Dekker Hofmeyr is a member of DLA Piper Group,

an alliance of legal practices.

0018/FEB2015

employment guide to the amendments 2014

Documents