1 introduction

2 Introduction cont.  The Four main labour laws 1.LRA -Act 66 of BCEA – Act 75 of EEA– Act 55 of Skills Development Act – Act 97 of1998, and Skills Development Levies Act – Act 9 of 1989 and Skills Development Levies Act – Act 9 of 1989

3 LRA -Act 66 of 1995 –Introduced 1995 –Main labour relations framework –Regulates employment and collective bargaining relationships ie governs the relationship at individual and collective level

4 BCEA 75 of 1997  Sets parameters governing terms and conditions of employment  Prescribes minimum terms and conditions of employment –Examples – working hours etc

5 Employment Equity Act, 55 of 1998 Governs affirmative action  Redresses past discrimination  2 fold purpose –To stop unfair discrimination against employees and applicants [applies to all employers] –To proactively advance people from designated groups  Imposes penalties  Specific employers have to have an equity plan and take affirmative action measures

6 Skills development Act Skills Development Levies Act  Linked to EE Act  Proactive advancement of people previously discriminated against  Aim –to develop skills of the workforce –Develop culture of learning  Skills development levy  Financial incentives for proactive employers

7 Constitution of SA 108 of 1996  Supreme law of the land –S23 of the Bill of Rights sets out employees rights; such as freedom of association, the right to fair labour practices, the right to collective bargaining, securing trade union rights etc – Right to equality

8 Other relevant law –Unemployment Insurance Act 63 of 2001  Provides social benefits to unemployed –Recent Amendments: –now includes domestic employees –If employee works for more than one employer – covered if one but not all, positions terminated –Excludes the jurisdiction of the CCMA over UIF Appeals which now go to the Regional Appeals Committee

9 Other relevant law cont  Compensation for Occupational Injuries and Diseases Act – 1993  Occupational Health and Safety Act – 1993  SA Qualifications Authority Act 1995 –Introduced National Qualifications Framework –8 levels on the NQF – each nationally recognised qualification will be in one or other level –Applies to skills development and training – employees encouraged that training will lead to NQF aligned qualification –SAQA – over - sees NQF implementation  Protected Disclosure Act 26 0f 2000 –Protects employees disclosing employers unlawful conduct.  See p4 handout for legislation/documents required and websites.

10 Types of Employees

11 Employee vs Independent Contractor  EMPLOYEE –definition  an agreement between parties  One places labour potential at disposal of, and under the control of, the other  For remuneration  INDEPENDENT CONTRACTOR –Locatio conductio operis – a contract for services  WHY THE NEED TO DISTINGUISH –LRA BCEA EEA SDA,SDLA and other labour related legislation, and the protection under these laws, do not extend to independent contractors  See cases P11 handout

12 S220A LRA and S 83A BCEA, amendments to clarify [2002]  Rebuttable presumption if a person works for or renders services to another  Indicators include [if any present, presumed an employee]: –Control of  manner of how work done?  Hours of work? –Is the person economically dependant on the other? –Tools of trade provided? –Work for one person only?

13 cont  Employers and employees love to try disguise agreements! –Employers avoid LRA, and Employees avoid/reduce income tax  Courts use dominant impression test: –De Greeve/Old Mutual Life assurance (2004)*2 –Briggs v CMS Support Services (1997) –Shikwambana v Quantum Construction holdings – court pierced the corporate vale; And compare: –Bezer v Cruises International CC (2003) [*1 ‘avoiding taxes’ ]

14 Different types of employees  Fixed term employees –Specific duration or specific project –Automatic termination (–word it carefully) –Rolling over generally not allowed  Permanent Employees –Indefinite period –Terminates usually on notice –Fulltime or part time  Note: Become an employee and protected = from conclusion of contract of employment, even if before work starts – see: Wyeth SA Pty Ltd v Manqele & others (2003)

15 Types employees cont.  Probationary employees –Assessment ‘trial period’ –To be of reasonable duration (depends on the job – and time to assess suitability)  Senior Managerial Employees –One who normally by reason of rank has powers and functions associated with the employer – eg – has the power to hire and fire. –Remains subordinate to employer –Excluded from certain legislation protection (eg –max work hours)

16 Types employees cont.  Employees excluded from stipulated working hours – travelling sales staff/ staff earning more than R  working less than 24 hours pm – specific exclusions  Temp employees?