What Acts of legislation do I need to be aware of with regard to my staff?
In South Africa, the following legislation is relevant to the employment relationship:
1. The Constitution of the Republic of South Africa Act 108 of 1996 (“The Constitution”)
Is the supreme law of the land. In relation to employment law, certain provisions of the Bill of Rights are relevant. Section 23 contains the rights which relate to the employment relationship.
These include among others: the right to fair labour practices; the right of employees to form, join and participate in a trade union; the right to strike; and the right to form, join and participate in an employer’s organisation.
Other rights contained in the Bill of Rights that may affect the employment relationship include: the right to equality; the right to privacy; freedom of religion, belief and opinion; freedom of expression and the right to just administrative action.
2. The Labour Relations Act 66 of 1995 (“the LRA”)
Contains the law regulating unfair dismissals and specifies what constitutes an unfair dismissal. The unfair dismissal system affords employees significant protection from dismissal. A dismissal must be substantively and procedurally fair.
In addition, the LRA protects employees against unfair labour practices, including unfair demotion, unfair suspension and unfair employer-conduct related to the provision of benefits.
The LRA also provides for the purchaser of a business sold as a going concern to automatically (i.e. by operation of law) assume the contractual obligations of the seller in respect of its employees.
The LRA established a mediation / arbitration tribunal called the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) to act as a dispute resolution body, as well as a Labour Court.
3. The Basic Conditions of Employment Act 75 of 1997 (“the BCEA”)
Regulates the minimum conditions of employment of the majority of employees (in certain industries minimum conditions are regulated by collective agreements or sectoral determinations).
While an employer and an employee may not agree to terms that are less favourable to an employee than what is prescribed in the BCEA, they may provide for conditions that are more favourable to the employee.
4. The Employment Equity Act 55 of 1998 (“the EEA”)
Aims to eliminate discrimination in the workplace and to promote affirmative action. The first part of the EEA prohibits discrimination in the workplace and provides employees with remedies in the event they fall victim to unfair discrimination.
The second part deals with affirmative action. Affirmative action aims to ensure that employees from previously disadvantaged groups are given a more equal chance of appointment and promotion.
5. The Skills Development Act 97 of 1998 (“the SDA”)
Aims to create a framework for the development of skills amongst employees. The SDA envisions the establishment of learnership and training programs, supervised by sectoral and national organisations to ensure uniform standards for training.
Training is to be primarily financed through a levy on employers provided for in the Skills Development Levies Act 9 of 2009 (“the SDLA”). In terms of the SDLA, when an employer is liable to pay the levy, that employer must apply to the Commissioner for the South African Revenue Service to be registered as an employer for the purposes of the levy and indicate in such application the jurisdiction of the Sectoral Education and Training Authority (“SETA”) within which that employer must be classified (if any). Provision is made for a cash grant back of a percentage of the levy paid by the employer, from a SETA to the employer.
Ensures that employees or their dependants who have suffered injury, illness or death arising from the performance of work are compensated from a fund specially created for this purpose.
To be compensated in terms of the COIDA the accident which caused the injury, illness or death must occur within the scope of the employee’s employment.
7. The Occupational Health and Safety Act 85 of 1993 (“the OHSA”)
Imposes a duty on employers to provide employees with a reasonably safe and healthy work environment. Employees are also required to abide by health and safety rules and report any unhealthy or unsafe practices to their employers or health and safety representatives.
8. Unemployment Insurance Act 2000 (“the UIA”)
Established the Unemployment Insurance Fund (UIF) which provides for the payment from the UIF of unemployment benefits to certain employees, and for the payment of illness, maternity, adoption and dependent’s benefits.
The UIA has to be read with the Unemployment Insurance Contributions Act 4 of 2002 (“the UICA”). The UICA requires every employer and every employee to whom it applies, to contribute to the UIF on a monthly basis. A failure to pay an amount due on the day determined for payment is an offence punishable by fine or imprisonment or both.