GLOBAL EMPLOYMENT LAW UPDATE – SOUTH AFRICA
The Labour Relations Act, No 66 of 1995, the Basic Conditions of Employment Act, No 75 of 1997 and the Employment Equity Act, No 55 of 1998 form the statutory backbone and parameters of employment law in South Africa. These statutes govern the employment relationship between parties and also outline the procedure for resolving employment disputes between parties. Legislation during 2013 and at the beginning of 2014 made material amendments to these statutes and introduced a new statute called the Employment Services Act. The purpose of this article is to provide an overview of some of the important changes in terms of the amendments to these statutes and is not therefore an exhaustive account of all the amendments.
The Labour Relations Act
The Labour Relations Amendment Act came into force on 1 January 2015. The amendments to the Labour Relations Act for the most part seek to introduce further protections for more vulnerable employees such as those earning below the threshold – R205 433.30.
The amendments widen the scope of automatic unfairness which will have an impact on dismissals for operational requirements. In this regard, a dismissal for operational reasons will be unfair where employees are given an alternative to dismissal but refuse to accept it.
In respect of fixed term contracts, the amendments suggest that an employee who is able to prove a reasonable expectation of renewal on a permanent basis should be appointed permanently. Furthermore, for employees earning below the threshold, they cannot be employed for longer than three months unless the nature of the work for which the employee is employed is of a limited or definite duration or if the employer is able to demonstrate any other justifiable reason for fixing the term of the employment. The onus is on the employer to prove that there is a justifiable reason for fixing the term of the employment.
For employees who earn below the threshold and are employed by temporary employment service providers, or “labour brokers”, the client of the labour broker may now be held jointly and severally liable for any legal breaches. The effect of the amendments is that the client of the labour broker no longer enjoys protection from legal liability in respect of employment issues that arise while the employee of the labour broker is working for the client.
The Employment Equity Act
The Employment Equity Amendment Act came into force on 1 August 2014.
The definition of “designated groups” for purposes of affirmative action has been constrained in that employees who are black people (Africans, Indians, Coloureds and Chinese), women or people with disabilities will only be considered as part of the designated groups if they:
- are citizens of South Africa by birth or descent; or
- became citizens of South Africa by naturalisation before the democratic era, in other words before 27 April 1994; or
- became citizens of South Africa by naturalisation after 26 April 1994 but would have been entitled to citizenship through naturalisation prior to this date but were prevented from doing so by apartheid policies.
Further amendments relate to the grounds of unfair discrimination. The grounds on which an employee can claim unfair discrimination in the workplace are 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.
The amendments amend this list to include an additional ground for discrimination which is “any other arbitrary ground”. The effect of the amendment is that the basis on which an employee can allege unfair discrimination is no longer constrained by the previously listed grounds. If unfair discrimination is alleged on a clearly listed ground then the employer against whom the allegation is made must prove, on a balance of probabilities, that discrimination did not occur or is reasonable and not unfair and and/or justifiable. If unfair discrimination is alleged on an arbitrary ground it is the duty of the employee to prove on a balance of probabilities that the conduct complained of is not rational, amounts to discrimination and that the discrimination is unfair.
Employment Services Act
The Employment Services Act has been approved but has not yet come into force.
The Employment Services Act (ESA) is a new piece of legislation which regulates the employment of non-citizens within South Africa. In order for a foreign national to obtain employment he or she must produce an applicable and valid work permit under the Immigration Act.
In terms of the ESA it is compulsory for employers to ensure that there are no South African citizens or permanent residents with suitable skills to fill a vacancy before recruiting a foreign national. In the event that a foreign national is employed an employer needs to prepare a skills transfer plan in relation to the position the foreign national occupies.
These employment law amendments are sure to have a concrete impact on many employers and further complicate the process of employing labour and regulating the employment relationship. Employers are advised to ensure that their employment practices are in line with the recent amendments and that they adhere to labour laws to safeguard against unnecessary litigation and fines.
January 19 2015