BCEA

1. BCEA Lecture 10

2. Monitoring and enforcement of legal provisions • Labour inspectors: Inspections, investigate complaints, obtain written undertakings and compliance orders. • Access to private households can only be obtained with permission from the owner or by an order of the Labour Court. Class notes are not sufficient for study purposes.

3. Monitoring and enforcement of E conditions are the responsibility of the admin systems and the Labour Court. • Evidence given to an inspector may not be used against that person in any criminal proceedings • Labour inspectors and accredited bargaining councils agents may promote, monitor and enforce compliance with employment laws by advising employers and employees of their rights and obligations. • They may also conduct inspections and issue compliance orders • A Labour inspector who has reason to believe that an employer has not complied with any provision of the ACT must endeavour to secure ( from the employer) a written undertaking to comply.

4. Continued...... • This is done by either meeting with the employer and/or serving a prescribed document on the employer. • The inspector may: • Seek to obtain agreement between the EE and ER to any amount owed to the EE in terms of the ACTArrange for payment • At the written request of the employee, receive payment on behalf of the employee • Provide a receipt for any abovementioned payment received.

5. The compliance order • May be issued by a labour inspector • Name of ER • Name of every workplace • Provision not complied with • Any amount that the employer is required to pay to the employee/s • Any written undertaking by the ER • Exactly what the failure is in terms of the undertaking to comply • Any steps that the employer is required to undertake • The maximum fine that may be imposed upon the employer’s failure to comply.

6. NO compliance order may be issued: • Collective agreement- Arbitration • Senior Managerial employee • Recovery of amounts outstanding for more than 12 months • Objections raised to a compliance order- representations to the DG within 21 days of receipt of that order • Appeal against the DG order- within 21 days to the L/C

7. LEGAL PROCEEDINGS • Amount claimed must not be outstanding for longer than a year, prior to the dismissal • May institute civil action • No discrimination clause if you claim • Disputes about interpretation and application i.r.o. Unfair discrimination, must be referred to the CCMA for conciliation, if not solved, refer to L/C for adjudication

8. General • Temporary employment services: Joint and several liability for a failure to comply with provisions of the Act • Break/lapse in employment for less than a year with the same employer, duration must be taken into account( length of service) • Offence if you disclose information which you obtained in the performance of your duties pertaining to finances or business affairs of another person or your employer EXCEPT if made as a protected disclosure or for purposes of proper administration of the Act or in the interest of justice or compelled by law. • Transitional arrangements:

9. Presumption as to who an employee is • A person who works/renders service for/to another and is entitled to remuneration is PRESUMED to be an employee , regardless of the form of the contract if any one or more of the following is present: • Manner in which you work is subject to te control of another • Hours of work are subject to control of another person • Forms part of the organisation( if applicable) • Person worked for another for an average of at least 40 hours per month over the last 3 months • Economic dependency on the other person • Provided with tools of the trade /work equipment • Only renders service for one person

10. OUTCOMES • How are legal provisions being monitored and enforces? • Discuss the provisions i.r.o legal proceedings i.t.o the BCEA • Discuss the general provisions of the BCEA • Who is presumed to be an employee?