Procedure for the Appointment of Contract Employees Temporary and Agency Workers and related Matters Mrs R K Mahomed

Purpose To provide information with regards to contract appointments at UNISA To ensure that the appointment and utilisation of contract workers is consistent with the strategic objectives of the university

Principles Conducted in a fair, transparent and equitable manner In compliance with legislative requirements and obligations Representative of suitably qualified people from designated groups and persons with disabilities in all occupational categories and levels

Legislative Amendments Basic Conditions of Employment Amendment Act 20 of 2013 (no important amendments) Employment Equity Amendment Act 47 of 2013 Labour Relations Amendment Act 6 of 2014 Immigration Act of 2013

Basic Conditions of Employment Act AIM: Provides for minimum conditions of employment to regulate the employer employee relationship and protect employees from any form of exploitation. BCEA provides for written particulars indicating appointment duration remuneration annual leave sick leave family responsibility leave unpaid maternity leave Notice of termination of contract monthly contribution to UIF, PAYE

Basic Conditions of Employment Act Benefits excluded study assistance annual bonus pay out transfer & relocation assistance study/examination leave

Employment Equity Act Aim: To prohibit discrimination and to promote equity in the workplace. Applies specifically to the employment relationship. Applies only to designated employers and designated groups of employees Designated group - means black people, women and people with disabilities who are SA citizens by birth or descent, or who became citizens before 27 April 1994 or after that date, because they were precluded by the previous apartheid policies.

Prohibits Discrimination EEA - No person may unfairly discriminate against a worker on the basis of: 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 or on any other arbitrary ground… Any difference in remuneration or the terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value, is unfair discrimination.

Labour Relations Amendment Act 6 of 2014. Signed to by the President 17 August 2014.

Section 198A & B Protection to non-standard employees EARNING BELOW THE THRESHOLD Non-standard employees: - Fixed-term contract employees - Agency Temps - Part-time employees (3) May be appointed for 3 months and may be treated differently during 1st 3 months of employment

Section 198B Fixed Term Contract – means a contract where the duration has been agreed to in advance between the employer and employee and which may terminate at the end of: Specified event Specified task / project Fixed date

Section 198B Does not grant protection to those people who earn above the threshold - more than R205 433 per annum Only applicable to appointments from P10 to P18 – earn less than the threshold May be appointed beyond 3 months only if it can be proved that the: Nature of work is of limited duration Justifiable reason for the appointment exists

Section 198 B Justifiable reasons: - Temporary absence of another employee - Temporary increase in volume of work - Student or graduate being trained - Employed exclusively for a specific project of limited duration - Non-citizen, employed for a defined period - Seasonal work

Justifiable reasons (continued) Public works scheme or job creation project Position funded by external source for a limited period Employee reached agreed or normal retirement age Contract to specify the reason for appointment

Additional UNISA approved Justifiable reasons. Structure has not finally been approved but in the process of being approved. Pending the filling of a vacancy where the process of filling has begun In a position where the university can provide a justifiable reason for fixing the term FT contracts for reasons above are limited to 6 months – appointments for 3 months renewable for a further 3 months.

Section 198B reason: - Equal pay after 3 months If appointed beyond 3 months without justifiable reason: - Indefinite employment (deemed permanent) - Equal pay after 3 months - Entitled to all statutory protection in BCEA, LRA, EEA - Equal access to training and vacancies - Termination pay after 24 months

Implications for the employer Equal treatment of Fixed Term employees if appointed for longer than three months. Equal opportunity to apply for training and access to vacancies UNLESS justifiable reasons for differentiation

Justifiable reason for differentiation - Seniority, experience or length of service - Merit Quality or quantity of work Measured against permanent employee performing same or similar work

Conclusion on fixed-term Contracts If earning above threshold, the 1995 position still applies If earning below threshold – special protection as follows: If employed for less than 3 months, treatment may be less favorable than permanent employees performing same / similar work. If employed longer than 3 months without justifiable reason, equal treatment to permanent employees and deemed permanent employee. If employed longer than 3 months on justifiable reason, less favorable treatment allowed

Part-Time Employees

Earn below threshold- if employed longer than 3 months they can claim: Amended position Part-time employees - appointed for 3 months and work less than 24 hours per month as and when required. Earn below threshold- if employed longer than 3 months they can claim: - permanency and equal treatment. - May not be treated less favorably than full time employees - Must be afforded same access to and opportunities for training and skills development - Must get same access to workplace vacancies NOTE: They may be treated differently during the first 3 months of employment

Agency Temps- Amended Position

Amended Position Appointment through TES– period not exceeding 3 months - Seasonal Work - As substitute for employee of client who is temporarily absent (e.g. striking/maternity leave) If appointed for any other reason besides above, client is deemed to be the employer together with the TES Employee may institute proceedings against TES or the client or both in case of a dispute.

Amended Position Where an employee earns below threshold and does not perform “temporary services”. - Client deemed to be employer and thus jointly and severally liable. - If employee does perform “temporary services” is a TES employee only.

Amended Position Termination of employee’s assignment by labour broker to avoid employee being deemed client’s employee = dismissal. Person deemed to be an employee of the client must be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment. “On the whole not less favourably” means: Principle of equal pay for equal work

If client is jointly and severally liable or is deemed employer – Amended Position If client is jointly and severally liable or is deemed employer – employee may institute proceedings against either the labour broker or client or both a labour inspector, in terms of BCEA, may secure compliance against either the labour broker or client or both Colour scheme for graphics / charts

Conclusion: Temps below the threshold If employed longer than 3 months for operational reasons other than those provided for in the LRA: - Deemed indefinite employee of client from 1st day of the 4th month - Will have protection in terms of BCEA, EEA, LRA - Will have claim for medical aid, pension fund, equal pay, equal conditions of service, sick leave, vacation leave, family responsibility leave, and if terminated, it must be follow fair procedure and be for a fair reason. Colour scheme for graphics / charts

TEMPS BELOW THRESHOLD CONTINUED Where operational need is more than 3 months and can be justified but there is no absence of a permanent employee: Rather appoint on a Fixed- Term contract Colour scheme for graphics / charts

Fixed Term Appointments Provisions Recruitment Adverts Selection Motivation Colour scheme for graphics / charts

Requirements for an application All applications submitted to HR - prescribed application form/s six weeks prior to start date Obligation of applicant to ensure correctness Required documents originally certified within 6 months Motivation for appointment Completed Personal Information Form Certified identification Certified qualifications Certified banking details CV Colour scheme for graphics / charts

Provisions, requirements & conditions vacant position/cost units/project full time or part time - overtime performance assessment up to 24 months - projects retirement age remuneration - fixed minimum of range including project appointments Colour scheme for graphics / charts

Fixed Term contracts (cont) ManCom approval required - beyond 24 VSP’s and VER’s –ManCom FT Performance Assessment -IPMS Acting & Secondments Tasks not to be performed by contract employees Appointments that will not be approved

Postgraduates Postgraduate student assistant means a student who is registered for an honours degree or has completed at least 360 credits of a 480 credit qualification; or Postgraduate assistant means a student who is registered for a master’s or a doctoral degree Provisions, requirements & conditions academic appointment part time basis - no overtime Unisa student/SA citizen/disadvantage groups acceptable academic progress - mentorship PGSA – Hon -1 year NOT renewable

Postgraduates (cont) Postgraduate Assistants master’s degree - maximum 2 years renewable annually doctoral - maximum 3 year renewable annually Students registered for a master’s degree or a doctoral provides proof of acceptance of research proposal in 1st year Remuneration - according to qualification registered honours degree P10 master’s degree P9 doctoral P8 PGA study assistance limited to registration fees

Interns Internship means a student who is required to gain practical on the job experience for registration with professional body Provisions, requirements & conditions appointment for 1 year at a time renewable once mentorship – individually appointed mentor/promoter progress report on renewal no salary - monthly stipend no study/examination leave

Candidate attorney Candidate attorney means an LLB or B Proc graduates accepted for clerkship Provisions, requirements & conditions appointment for 1 year at a time renewable once mentorship – individually appointed mentor/promoter progress report on renewal no salary - monthly stipend no study/examination leave

Independent Contract Tutors, invigilators, examiners, markers etc. Not regarded as an employee LRA definition - performs tasks independently, own equipment, no office space Should not be a permanent or fixed term employee Period of Appointment Up to 3 years renewable Appointment beyond 3 years approved by VP: Institutional Development and Transformation Renewal/ amendment

Employment age up to 70 years. In exceptional cases with substantial motivation appointment above 70 may be allowed UNISA retirees for a maximum of 2 years approved by VP: Institutional Development and Transformation Approval by VP: Institutional Development and Transformation - annual costs of the agreement is above R500 000, 00

Approval by ED: Human Resources - annual costs of the agreement is less than R500 000, 00 in Support Departments. Approval by VP: Teaching Learning (TLCESS) for undergraduate modules is less than R500 000, 00 Approval by VP: Research, Postgraduate Studies, Innovation & Support for postgraduate appointments less than R500 000, 00 Appointment of tutors & invigilators are delegated

Benefits and Remuneration Working Hours Independent – no fixed or limited working hours Work independently – own equipment Benefits and Remuneration Compensated per task/hour No monthly salary Compensated per claim No vacation leave/sick leave/family responsibility leave Contributions to UIF PAYE

No income tax number provided Incomplete/incorrect ID numbers Incorrect RC codes for project appointments Unauthorized extension of project end dates Non compliance with appointment conditions in terms of approved project submission EE/OD/ HRIS signature not obtained

Previous contract periods/ employee/ claim numbers omitted Salary scale/tariff incomplete/incorrect Commencement of duties before approval MOA’s not returned within 7 working days Selection report/ motivation not attached Submitting late applications and blaming HR for the delay

Thank you

HR FORMS FIXED TERMS Process to determine post grades Form A Process flow before submitting contract appointment forms Note 1 Application for a Fixed Term Contract (Advert) HR- CA 001(a) APP FORM Application to Appoint & Renew P7 to P18 HR-CA 101(a) ACA HR-CA 101(a) ADM Application to Appoint & Renew P5 & P6 HR-CA 101(b) ACA HR-CA 101(b) ADM Application to Amend an Appointment P7 to P18 HR-CA 102(a) ACA HR-CA 102(a) ADM Application to Amend an Appointment P5 & - P6 HR-CA 102(b) ACA HR-CA 102(b) ADM Personal Information & Termination of Contract HR-CA 002(a) HR-CA 800

CANDIDATE ATTORNEY HR-CA 101 (CA) Application of Contract INTERNS HR-CA 101 (INT)

INDEPENDENT CONTRACTORS   Colleges Administrative & Support Departments Application to Appoint & Renew Less than R500 000 pa HR-CA 201(a) ACA HR-CA 201(a) ADM Application to Appoint & Renew Above R500 000 pa HR-CA 201(b) ACA HR-CA 201(b) ADM Application to Amend an Appointment Less than R500 000 pa HR-CA 202(a) ACA HR-CA 202(a) ADM Application to Amend an Appointment Above R500 000 pa HR-CA 202(b) ACA HR-CA 202(b) ADM Independent Employers Guide Employers Guide Personal Information & Questionnaire HR-CA 002(a) & Classification Questionnaire

APPLICATIONS - POSTGRADUATE ASSISTANTS  Colleges Applications to Appoint & Renew PGA & PGSA HR-CA 301(a) Application to Amend PGA & PGSA HR-CA 302(a) APPLICATIONS: TEMPORARY WORKERS (TEMPORARY WORKER & PART TIME) Colleges and Administrative & Support Departments Application for a Temporary Contract (Advert) HR-CA 001 Application to Advertise and Appoint HR-CA 001(b) Application to Appoint and Renew HR-CA 401(a)

APPLICATION TO APPOINT AND RENEW: AGENCY TEMPORARY WORKERS   Colleges and Administrative & Support Departments Agency Worker P5-P9 HR-CA 701(a) Agency Worker P10-P18