EXPANDED PUBLIC WORKS PROGRAMMES SUMMIT 2014

Legal Perspective

Ministerial Determination and Code of Good Practice

Contents• Legislation

– Constitution

– Labour Relations Act

– Basic Conditions of Employment Act

• Ministerial Determination

• Code of Good Practice

– Occupational Health and Safety Act

– Enforcement

– Emerging issue

– Compensation for Occupational Injuries and Diseases Act

– Unemployment Insurance Act

Conditions of Employment

Ministerial determinationBCEA

Code of Good Practice

Non compliance not criminalized

Sectoral determinations

Enforcement regime

Legislation Constitution

Fair labour Practices Freedom of association

Labour Relations Act Fair procedures must be followed

Basic Conditions Of Employment Act Regulation of working time Leaves Particulars of employment and remuneration Termination of employment

Legislation cont. Ministerial Determination

Specific to EPWP Extent

S10(2), S14(3), S 29(n) to (p), S30, S37, S 41 and S51 -58 Which workers are covered

All workers who are part of what is called the “Expanded Public Work Programmes”

Conditions Weekly Rest period – Two days p.w. Minimum wage – R75.10 per day linked with inflation per

annum Termination: Fair procedures, Qualify for UI benefits.

Code of Good Practice

To assist with implementation of the Ministerial determination

Purpose and application

Provides guidelines on: Working conditions Payment and setting rates of pay Disciplinary and grievance procedures

Promote uniformityApplies to all employers and employees in EPWP Is in line with all relevant legislation

BCEA, LRA, EEA,OHS, COIDA, UIA, SDAMust be read in conjunction with Ministerial

Determination

Beneficiaries of EPWPLocally-based (close as possible) prepared to

work on specific EPWPSpread benefits - one person per householdNot more than 20% skilled employees from other

communitiesProposed targets:

55% women 40% youth (16 – 35) 2% disabled

(means people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment)

Selection and participation Local community informed and consulted about

the establishment of EPWPCriteria to target the poorest of the poor

Where head of household has less than primary school education

Household with less than one full time person earning income

House where subsistence agriculture is the source of income

Provide as many people as possible with opportunity to participate

Distribute amongst the unemployedForced labour is prohibited

Payment

At least the prescribed minimum rate - R75.10Annual Increase linked with inflation from 1 November

May be paid on number of tasks completed (“task-rated” workers) or daily rate

Paid on basis of time worked (“time-rated workers If informed a day before that work will not take place the next day

– not entitled to payment Training allowance to be paid 100% when required to attend

training Written particulars to be provided If project is completed earlier than anticipated - worker should

receive agreed remuneration for the period in full.

Legislation cont.

Unemployment Insurance Contributions Act applies to EPWP.

DEFINITIONS: Employee means any natural person who receives remuneration or to whom

remuneration accrues in respect of services rendered or to be rendered by that person, but excludes any independent contractor.

Employer means any person, including a person acting in a fiduciary capacity, who pays or is liable to pay any person any amount by way of remuneration and any person responsible for the payment of any amount by way of remuneration to any person under the provisions of any law or out of public funds, excluding any person who is not acting a principal.

There is no exclusion mechanism in the Act

Health and Safety OHSA must be complied with

Health and Safety cont......

The management of an EPWP and each employer must; ensure that all workers are informed of any risks

and dangers associated with their tasks inform and train workers about the precautions

and steps that must be taken to avoid or minimise risks and dangers to them or others

ensure all possible precautions and safety measures are in place to avoid risk and minimise dangers

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Health and Safety cont....

not permit workers to perform tasks for which they have not been trained

provide workers with the necessary protective clothing such as hard hats, goggles, ear-plugs, boots and outer clothing required , as applicable to complete their tasks in safety. these must be supplied free of charge and must be maintained, by the worker, in a clean state and in working order for use

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Health and Safety cont.....

provide First Aid Kits on site;ensure that at least one person per site is

trained to act as a First Aid Officer and they are capable of providing first Aid to injured or ill workers;

provide sufficient clean drinking water to all workers for the duration of the project;

ensure that adequate sanitation is available to workers; and ensure all safety standards set are adhered to

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Enforcement

• Conscious decision not to have a directed program to inspect EPWP

• EPWP programs Inspected in the same manner as with other workplaces

• Whilst the level of compliance with respect minimum conditions of employment has seen a marked improvement, there are still areas that are lacking

• These areas include:– OHS

– COIDA and to some extent UIF

Emerging from legislative ammendments

• BCEA

Amendments to deal with different forms of employment: (continued nature of part time employment) – whilst the legislation recognizes the need for limited duration contracts – it sets specific criteria for this

• Equal pay for work of equal value

EPWP normally takes place alongside formal employment doing exactly the same kind of work. - This could emerge as a sticky issue

Compensation for Occupational Accidents and Diseases

The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) Administrative obligations; Every employer

must; register with the Compensation Commissioner

and cover all workers in the EPWP (this is done by submitting a completed W AS 2 form);

notify the commissioner of any changes in particulars

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COIDA

Employers must be registered with COIDA and records of employees must be kept in order for workers to be compensated in the event of accident.

• Definition of employee: “Means a person who has entered into or works under the contract of service or of apprenticeship or leanership with an employer, whether the contract is express or implied, oral or in writing and whether the remuneration is calculated by time or by work done or is cash or in kind and includes…”

•  The service provider is responsible for payment in this scenario as they have entered into agreement with these leaners and it is responsible for payment of salaries.

Compensation for Occupational Accidents and Diseases cont...

keep a register of wages, time worked and payment (this is the same register described above);

submit a return of wages paid each March and

pay assessments (contributions) as required by the commissioner

Obligation in respect of accidents and occupational diseases

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Compensation for Occupational Accidents and Diseases cont...

Every employer must report to the Compensation commissioner

accidents within 7 days (W CI 3 form); and occupational diseases within 14 das (W CI 14 form)

An employer must pay a worker who is injured in an accident at work and who is unable to work 75% of their wages for a period of up to three months or until the end of the workers contract, whichever comes first. the Compensation Fund will refund the employer this money.

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Compensation for Occupational Accidents and Diseases cont...

• A worker who is injured in an accident that is caused by the negligence of an employer is entitled to claim additional compensation in terms of section 56 of COIDA

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Thank You…