ILO Convention (21 June 2019): Elimination of violence and harassment in the world of work

ILO Convention: Elimination of violence and harassment in the world of work

New Picketing Regulations

New Picketing Regulations

National minimum wage | Effective 01 January 2019

On Friday, 07 December 2018, President Cyril Ramaphosa announced that the long awaited National Minimum Wage would come into effect on 01 January 2019.

Labour Minister Mildred Oliphant said the minimum wage will not replace the minimum wages that have already been agreed to, through the collective bargaining agreements.

“The national minimum wage will only replace the minimum wage in the sector if that minimum wage is less than the national minimum wage”. This does not extend to domestic and farm workers.

Employers are therefore advised to evaluate their current remuneration practices and ensure that they are aligned with the minimum rate of R20.00 per hour.

Increase in minimum wage for domestic workers

With effect from 03 December 2018, employees within the Domestic Worker Sector will receive an increase in respect of their minimum wages.  As the domestic worker sector earns below the proposed national minimum wage (which will come into effect from 01 January 2019), this sector will undergo a transitional phase in order to better align with the National Minimum Wage.

Employers are advised to familiarise themselves with the attached wage rate revisions.

Domestic Worker Wages 2018

Employment Equity Reports 2018 | 15 January 2019 (Online deadline)

In terms of S1 of the Employment Equity Act, a designated employer is an employer who employs 50 or more employees or an employer who employs less than 50 employees, but has a total annual turnover that is equal to or above the annual threshold specific to the relevant sector. Schedule 4 of the Employment Equity Act provides the threshold breakdown.

S20 and S 21 of the Employment Equity Act, states that a designated employer must prepare and implement an employment equity plan, and submit a report once a year to the Director General.  Designated employers that do not comply with the manual submission deadline of 01 October 2018 and/or online submission deadline of 15 January 2019 could be liable for a minimum fine of R1 5 million or 2% of the employer’s annual turnover (whichever is the greater).

Should you need assistance in respect of the formulation of your EE plan and report, do not hesitate to contact our offices directly.

Is it Mandatory to Re-employ a Retrenched Employee?

Contrary to popular belief there is no blanket and/or mandatory requirement that an Employer must re-employ an employee after retrenchment, should a suitable vacancy arise.

During the retrenchment process, S 189(3)(h) of the Labour Relations Act, No 166 of 1995 (LRA) specifically requires an employer to disclose and consult on the possibility of future re-employment. This disclosure and consultation must be in keeping with a core requirement of the S 189 process namely, that it is a joint consensus seeking exercise and not a fait accompli. It does not from the outset prescribe that an Employer must re-employ an Employee after retrenchment or benchmark any re-employment period after retrenchment. In SASBO v Standard Bank of SA [2011] JOL 26928 (LC) the court stated that should an Employer fail to disclose and consult on the possibility of re-employment, the retrenchment may be regarded as procedurally unfair.

During the consultation process the Employer may reach an agreement with the Employee that provides for preferential re-employment, but once again reaching an agreement is not mandatory.

In the event that the Employer does reach an agreement regarding re-employment and fails to adhere to this agreement, such an omission will result in an unfair labour practice and may amount to a substantively unfair dismissal.

NEWSFLASH – Constitutional Court Confirms Position On S 42(a) of the EEA

In the recent Constitutional Court judgment of Solidarity & Others v Department of Correctional Services & Others (CCT78/15) [2016] ZACC 18 handed down on 15 July 2016,the court held that the Department of Correctional Services acted unlawfully and in breach of its obligations under S42(a) of the EEA in that it failed to consider the regional demographic profile in assessing its levels of representation and thus setting targets for its Employment Equity Plan.

In terms of a brief background to the matter, the Department in 2011 advertised vacant posts in the Western Cape. Certain applicants who applied for the positions were denied appointment to the positions on the basis of race and gender considerations which the Department maintained were ‘over represented’.

The Department argued that because it was a national department, it wasn’t required to consider both the national and regional demographics (as indicated in S 42(a) of the EEA). The court however rejected this argument on the basis that S 42 (a) of the EEA doesn’t stipulate that national departments are excluded from its application, with the result that the Department wasn’t authorised to preclude consideration of the regional demographic profile. The Department therefore had no justification for using race and gender as a criteria to refuse the appointment of the respective applicants, with the result that the Department’s decision not to appoint most of the applicants was regarded as unfair discrimination.

In lieu of the above, the Court ordered that the recommended coloured applicants be appointed to the vacant advertised positions and be paid the remuneration assigned to these posts with retrospective effect. In terms of the posts that were currently occupied, the Department was ordered to pay these applicants the remuneration assigned to these posts with retrospective effect.