introduction

1. introduction

2. Introduction cont. • The Four main labour laws • LRA -Act 66 of 1995 • BCEA – Act 75 of 1997 • EEA– Act 55 of 1998 • Skills Development Act – Act 97 of1998, • 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] • Rebuttablepresumption 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 R115 572 • working less than 24 hours pm – specific exclusions • Temp employees?