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EMPLOYMENT EQUITY PROPOSED AMENDMENTS planned for 2014

EMPLOYMENT EQUITY PROPOSED AMENDMENTS planned for 2014

The Amended Employment Equity Act places an obligation on employers to train all employees on the provisions of the Employment Equity Act. Training on the act, diversity management programs and discrimination awareness programs must be reported in part 10 of the employment equity plan to the Department of Labour. We at TRAINYOUCAN created this help document that can also be downloaded in PDF format Employment Equity Act Proposed Amendments 2014.

1. EMPLOYMENT EQUITY HISTORICAL BACKGROUND

Since its inception in 1998 and the end of the first reporting period in the year 2000, the Employment Equity Act 55 of 1998 (the EE Act) saw 14 annual reporting periods before the recent amendments. The amendments are contained in the Employment Equity Amendment Act 47 of 2013 which was published for general information on 16 January 2014 and still waiting to be signed by President Jacob Zuma. (Not approved yet)

Coupled with these enhanced provisions, the EE Act will have far-reaching implications for non-compliant employers. Amendments to the regulations are currently also in the pipeline and are soliciting widespread comment from business.

In terms of section 21 of the EE Act all designated employers are required to submit their annual employment equity (EE) report by a certain date, normally the first working day of October. Electronic filing is also allowed.

One of our accredited facilitator at TRAINYOUCAN with years of experience in HR specialises in this field and will be able to assist your company or offer this short training course on your premises in Durban, Kwa-Zulu Natal.  Click here to view our course detail

Employment Equity Training – TRAINYOUCAN Calendar | Training price List | Accreditation

Also see Project Management Training Accredited and Project Management Short Course

2. SUMMARY OF THE AMENDMENTS

The new amendments to the Employment Equity Act 2014 planned will influence:

  1. How you recruit new staff…
  2. How you training of staff…
  3. How you pay your employees…
  4. How you do your EE reporting…
  5. How you perform your EE plans…

This help document was created internally by TRAINYOUCAN Facilitators to assist companies with these new amendments. If you don’t comply with this the DoL could fine you 10% of your turnover or up to R2.7 million! Now 10% may not seem like a lot, but if your annual turnover is R6 million, you’d be liable to pay the DoL R600,000 for each area of non-compliance! And if you’re non-compliant with five of the changes that could cost you R3 million.

If you employ more than 50 people or if your turnover is over the Employment Equity Act threshold for your industry, you need to comply with each and every one of them.

3. CHANGES IN THE DEFINITION OF DESIGNATED EMPLOYERS OF THE ACT

The designated employers referred in the new amendment in section 21 are:

  • An employer who employs 50 or more employees
  • An employer who employs fewer than 50 employees, but has a total annual turnover that is equal to or above the applicable annual turnover of a small business in terms of Schedule 4 to the EE Act
  • A municipality, as referred to in Chapter 7 of the Constitution
  • An organ of state as defined in section 239 of the Constitution, but excluding the National Defence Force, the National Intelligence Agency and the South African Secret Service, and
  • An employer bound by a collective agreement in terms of sections 23 or 31 of the Labour Relations Act, which appoints it as a designated employer in terms of this Act, to the extent provided for in the agreement

4. CHANGES IN THE AMENDED ACT

4.1 Definition of “designated groups”

“Designated Groups in short mean black people, women and people with disabilities.”

The revision of the term “designated groups” ensures that only citizens of the Republic of South Africa, by birth or descent, may benefit from affirmative-action measures.

People who became citizens of the Republic of South Africa by way of naturalisation, after 26 April 1994 are barred from benefits of affirmative action, unless such people were entitled to citizenship but were barred as a result of apartheid policies.

This effectively means that affirmative action measures do not apply to anyone who falls outside this definition. Please bear in mind that this will have an impact on your B-BBEE scorecard as well.

4.2 Unfair discrimination

The grounds for claims of unfair discrimination have been broadened to include discrimination on arbitrary grounds as opposed to previously listed grounds only. The listed grounds include 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.

Amendment

Section 6 sees the inclusion of a clause which states that “a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work of equal value that is directly or indirectly based on the grounds of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, belief, political opinion, culture language, birth or any other arbitrary ground amounts to unfair discrimination.

Should this be the case, the employer is bound by an amendment to Section 27 to take measures to progressively reduce the income differentials.

4.3 Burden of proof

If unfair discrimination on a listed ground is claimed, the employer must prove that such discrimination did not take place, is rational and not unfair, or is otherwise justifiable.

If unfair discrimination on arbitrary grounds is claimed, the complainant must prove on a balance of probabilities that the conduct is not rational, the conduct complained of amounts to unfair discrimination and the discrimination is unfair.

Amendment Section 11 has been expanded upon to give clear guidelines regarding the “burden of proof” in discrimination cases.If unfair discrimination is alleged on a ground of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, belief, political opinion, culture, language and birth, the employer against whom the allegation is made, must prove, on a balance of probabilities that:

  • The discrimination did not take place as alleged; or
  • Is rational and not unfair, or is otherwise justifiable

If unfair discrimination is alleged on an arbitrary ground, the complainant must prove, on the balance of probabilities, that:

  • The conduct complained of is not rational;
  • The conduct complained of amounts to discrimination; and
  • The discrimination is unfair

This amendment places a burden of proof on the complainant, which was not explicitly stated in the original Act. With these guidelines, we should see a reduction in discrimination cases as an employee or job applicant would now need to prove that the conduct complained about is not rational, is in fact discrimination and that it is unfair. This should bring an end to every second employee claiming “Discrimination” when they don’t get their way in the workplace.

 

Employment Equity Training – TRAINYOUCAN Calendar Training price List | Accreditation

Also see Project Management Training Accredited and Project Management Short Course

4.4 Psychometric tests

Psychometric testing and similar assessments of an employee are prohibited unless the test or assessment being used has been scientifically shown to be valid and reliable, can be applied fairly to all employees and is not biased against any employee.

The new amendments require that any such test must be certified by the Health Professions Council of South Africa (HPCSA) established under the Health Professions Act, 56 of 1974, or any other body that may be authorised by law to certify such tests or assessments.

Amendment

Section 8, which deals with psychometric assessments, has an additional paragraph inserted, which will compel an employer who conducts psychometric assessments on employees or job applicants to ensure that the test has been certified by the Health Professions Council of South Africa or any other body which is authorised by law to certify psychometric test or assessments.

4.5 Equal pay for work of equal value

This new provision is included to ensure that employees receive equal pay for work of equal value unless the employer is able to show that valid and fair grounds exist for discrimination.

The minister of labour will be entitled to publish codes to provide guidelines on work of equal value.

4.6 Discrimination: jurisdiction of the CCMA

Employees who claim unfair discrimination on the grounds of sexual harassment may refer the matter to the CCMA for arbitration.

In any other case pertaining to disputes regarding unfair discrimination, an employee who earns below the threshold in terms of the Basic Conditions of Employment Act may refer the matter to arbitration to the CCMA. Employees who earn above the threshold may refer the matter to the CCMA for arbitration only in the event that all parties have consented to the arbitration of the dispute.

Parties affected by an award of the CCMA under this section may appeal to the Labour Court.

AmendmentSection 10 sets out clearly defined dispute resolution procedures for alleged unfair discrimination, which sees the inclusion of the following:In addition to the existing clause 1, which stipulates that the first port of call for alleged unfair discrimination is a referral to the CCMA for conciliation, the following clauses are included“An employee may refer the dispute to the CCMA for arbitration if:

  • The employee alleges unfair discrimination on the grounds of sexual harassment; or
  • In any other case, that employee earns less than the amount stated in the determination made by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; or
  • Any party to the dispute may refer it to the CCMA for arbitration if all the parties to the dispute consent to arbitration.

Furthermore the amendments will allow a party affected by an arbitration award, to lodge an appeal against such arbitration award by the CCMA, concerning this section, to the Labour Court. The party appealing has 14 days from the date of the award to lodge an appeal with the Labour Court.

 

4.7 Requirement for representation at all occupational levels

The new amendments have deleted the reporting of and requirements for representation in occupational categories, with emphasis on the requirement for representation in the various occupational levels.

AmendmentSection 15, 16, 19, 20 and 21 which deal with the designated employer’s duty to consul; conduct an analysis of its workforce profile, policies practices and procedures; prepare and implement an employment equity plan; and report to the Director General have been changed in terms of reference to “occupational categories and levels.” The amendments take into account only “occupational levels.”The reason for this is that when consulting, analysing, planning and reporting across “occupational categories”, we see sufficient representation of designated groups; however, the real disparity with regards to equitable representation lies in the “occupational levels”. This change will force employers to focus on the real burning platform which affects transformation, i.e. underrepresentation of designated groups within “occupational levels” in their workplaces.

 

4.8 Reporting

All designated employers are required to report annually in October each year, or on a date specified in the regulations if such reporting submitted via e-filing. In the past, designated employers who employed less than 150 employees were only required to file a return once every two years.

 

Section 21 which deals with the designated employer’s duty to submit an EEA2 report to the Director General has changed significantly. In the past, there was a distinction made between reporting periods of Large employers (150+ employees) and Small employers (0 – 149 employees).With the amendments, all employers must now submit an EEA2 and EEA4 report every year, by the first working day of October or on such other date which may be prescribed.Also, an employer who becomes designated on or after the first working day of April, but before the first working day of October, must submit its first report by the first working day of October the following year, or on such other date that may be prescribed. Please see a worked example of how this will affect your company below:

For example:

  • If you become designated on 18 June 2014, you must submit your report by the first working day of October 2015, or on such other date that may be prescribed
  • If you become designated on 15 March 2014, you must submit your report by the first working day of October 2014, or on such other date that may be prescribed
  • Furthermore, the amendments to this section stipulate that should you not be able to report by the first working day of October, you are obliged to notify the Director General in writing by the last working day of August in the same year and give reasons for your failure to report by the deadline
  • Another significant amendment to this section is that the Director General may apply to the Labour Court to impose a fine in accordance with Schedule 1 (see table above) if the employer:
  • Thus, to avoid unnecessary complications, reporting by the deadline is paramount.
  • Fails to submit a report in terms of this section;
  • Fails to notify and give reasons to the Director General for failing to report by the deadline;
  • Has notified the Director General of failure to submit, but the reasons are false or invalid.

Section 27 amendments were mentioned in the beginning, where we saw that “a difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work of equal value that is directly or indirectly based on the grounds of race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, belief, political opinion, culture language, birth or any other arbitrary ground amounts to unfair discrimination.

 

An employer is bound to progressively reduce these disparities.

 

4.9 Monitoring and compliance

Obligations of labour inspectors to request letters of undertaking from employers under certain circumstances have been removed. This means that an employer could be faced with a compliance order in the event that the designated employer has failed to prepare or implement an employment equity plan, and submit an annual report or prepare a successive employment equity plan.

Certain obligatory considerations by the director general during a DG review process have also been removed from the Act. Thus, the main consideration during the DG review process would be national and regional demographics and steps taken by an employer to train people from designated groups in order to achieve targets.

Maximum permissible fines which may be imposed for contravention of certain provisions of the Employment Equity Act

Enforcement measures and penalties:

  • The Director-General of the Department of Labour is now empowered to apply to the Labour Court to impose a fine on an employer who fails to prepare or implement an employment equity plan or who fails to file the required return.
  • Amendments to sections 36, 37, 39, 40, 42 and 45 seek to promote enhanced enforcement measures and prevent the use of reviews as a mechanism to delay the enforcement process.
  • The powers of a labour inspector to issue a compliance order was clarified and applies to specific provisions. By the same token the provisions for objections and appeals against compliance orders are repealed.
  • The Minister of Labour is empowered to make regulations for circumstances under which an employer’s compliance should be assessed with reference to the demographic profile or the national or regional economically active population.
  • Amendment to sections 59 and 61 increase the maximum fines for criminal offences from R10 000 to R30 000.
  • The maximum fines that may be imposed in terms of the Act for the contravention of certain provisions indicated are set out in Schedule 1 (see table 1). An employer’s turnover may be taken into account in determining the maximum fine that may be imposed for substantive failure to comply with the Act.
Previous Contravention Contravention of:S16 – Consultation with employeesS19 – AnalysisS 43(2) – Failure to provide information to DG as requested during DG review process

 

 

Contravention of any provisions ofS 20 – Employment Equity PlanS21 – ReportS23 – Successive Employment Equity PlansS44(b) – Recommendations of DG
No previous contravention R1 500 000 The greater of R1 500 000 or 2% of the employer’s turnover
A previous contravention in respect of the same provision R1 800 000 The greater of R1 800 000 or 4% of the employer’s turnover
A previous contravention within the previous 12 months or two previous contraventions in respect of the same provision within three years R2 100 000 The greater of R2 100 000 or 6% of the employers’ turnover
Three previous contraventions in respect of the same provision within three years R2 400 000 The greater of R2 400 000 or 8% of the employer’s turnover
Four previous contraventions in respect of the same provisions within three years R2 700 000 The greater of R2 700 000 or 10% of the employer’s turnover

 

Turnover threshold for compliance as designated employer

The turnover for compliance purposes as a designated employer, other than the number of employees is R45 000 000 per annum in the retail motor industry.

AmendmentSection 36 dealing with a “written undertaking to comply” has been amended to state that a labour inspector may obtain a written undertaking to comply from the designated employer who has failed to:

  • Consult as per Section 16
  • Conduct an analysis as per section 19
  • Publish a report as per section 22
  • Assign responsibility as required by section 24
  • Inform employees of the Act as per section 25 or
  • Keep records as per section 26

From the list above, and as mentioned earlier, we can see that the duty to prepare and implement an employment equity plan as well as report are excluded. Failure to observe these two duties will allow for procession straight to the Labour Court upon application by the Director General.

Other changes state that if an employer fails to comply with a written undertaking within the time period stipulated in it, the Director General may apply to the Labour Court to make the undertaking or part thereof an order of the court.

Section 37 which deals a “compliance order” has been amended to state that a labour inspector may issue a compliance order to a designated employer who has failed to:

  • Consult as per Section 16 on the topics dealt with in S17
  • Conduct an analysis as per section 19
  • Publish a report as per section 22
  • Assign responsibility as required by section 24
  • Inform employees of the Act as per section 25 or
  • Keep records as per section 26

The previous provisions which state that the inspector can issue the compliance order if the employer refuses to sign a written undertaking to comply or has failed to adhere to the written undertaking by the deadline, have been taken out

With this change, we can see that inspectors will be faced with a choice of either securing a written undertaking or issuing a compliance order. I believe they will default straight to the compliance order.

Once again, we can see that the duty to prepare and implement an employment equity plan as well as report, are excluded. As before, failure to observe these two duties will allow for procession straight to the Labour Court upon application by the Director General.

Other changes state that if an employer fails to comply with a compliance order within the time period stipulated in it, the Director General may apply to the Labour Court to make the undertaking or part thereof an order of the court.

Section 39 and Section 40 which deal with and objection and appeal against a compliance order are repealed. Thus, the designated employer is left no recourse other than to wait for his day in Labour Court should he believe he has complied with the provisions of the compliance order and the Director General submits an application to Labour Court to impose fines in accordance with Schedule 1.

Section 42, governing the Director General’s “Assessment of Compliance” has seen the existing clauses being substituted with the following clauses:

In determining whether a designated employer in implementing employment equity in compliance with this Act, the Director general or any person or body applying this Act, may, in addition to factors listed in Section 15, take the following into account:

  • The extent to which suitably qualified people from designated groups are equitably represented within each occupational level of the employer’s workforce in relation to the demographic profile of the national and regional economically active population;
  • Reasonable steps taken by the designated employer to train suitably qualified people from the designated groups
  • Reasonable steps taken by the designated employer to implement its employment equity plan
  • The extent to which the designated employer has made progress in eliminating employment barriers that adversely affect people from designated groups
  • reasonable steps taken by the employer to appoint and promote suitably qualified people from designated groups
  • Any other prescribed factor.

Further to these changes, the Minister may, after consultation with NEDLAC, issue a regulation which must be taken into account when determining whether a designated employer is implementing employment equity in compliance with the Act

This regulation may also specify the employer’s compliance with reference to either the national or regional economically active profile.

In any assessment of its compliance with this Act or in any court, a designated employer may raise any reasonable ground to justify its failure to comply.

Section 45 which describes the consequences in “failing to comply with Director General’s request or recommendation” has changed significantly.

The amendment now stipulates that if an employer fails to comply with a request made by the Director General for the employer to:

  • submit copies of its analysis or Employment Equity Plan;
  • submit any record, book correspondence or information which could be relevant to this Act;
  • honour a request for a meeting with the employer to discuss its employment equity plan and implementation thereof;
  • allow a meeting with an employee or union, workplace forum or other relevant person;
  • The Director General may then apply to the Labour Court
  • for an order directing the employer to comply with the request or recommendation; or
  • If the employer fails to justify the failure to comply with the request or recommendation, to impose a fine in accordance with Schedule 1.

Further to this, if an employer notifies the Director General in Writing within the period specified in the request or recommendation that it does not accept the request or recommendation, the Director General must institute an application to the Labour Court in accordance with (a) and (b) above within:

  • 90 days of receiving the employers notification, in the case of a request; or
  • 180 days of receiving the employer’s notification, in the case of a recommendation.

Should the Director General not institute proceedings in the timeframe stipulated above, the request or recommendation lapses.

Should an employer challenge the validity of the Director General’s request or recommendation, the challenge can only be made in Labour court proceedings as described above.

The introduction of these timeline will give more clarity to employers regarding how to deal with a request or recommendation but will place a large amount of pressure on the employer to firstly, adhere to both a request and recommendation and secondly, on the Director General to enforce compliance.

Section 48 which deals with the “powers of a commissioner in arbitration proceedings”, has been amended to state that an award made by the commissioner of the CCMA hearing a matter in terms of Section 10 may include any order which can include payment of compensation by the employer to that employee, payment of damages by the employer to that employee and / or an order directing the employer to take steps to prevent the same discrimination or a similar practice from occurring, but, an award of damages mat not exceed the amount stated in terms of section 6(3) of the Basic Conditions of Employment Act.

This clause was amended to ensure congruence between the EE Act and the BCEA.

Section 50 which stipulates the “powers of the Labour Court” has introduced an additional clause which states that fines payable in terms of the Act must be paid into the National Revenue fund. In the original Act, there was no mention of where fines were to be paid into.

 

This section has also indicated that the Labour Court has the power to review an administrative action I terms of the Act on any grounds that may be permissible by law.

Conclusion

With all the amendments mentioned above, we can clearly see that the Department of Labour is taking its role very seriously with regards to employment equity.

Not only has dealing with the adverse effects of past discrimination become a social imperative, but compliance with Employment Equity Legislation has now, more than ever, become a business imperative.

Employers who fail to comply with the provisions of the Employment Equity Act No 55 of 1998 and the Employment Equity Amendment Act, 2013 not only face large financial penalties in the form of fines from an Employment Equity legislative perspective and adverse consequences on their B-BBEE scorecards by failing to transform, but they may tarnish their corporate reputation and lose their competitive advantage when recruiting and retaining high performing staff as well as tendering for business.

Read more about the Employment Equity Training Course online

Employment Equity Training – TRAINYOUCAN Calendar Training price List | Accreditation

Also see Project Management Training Accredited and Project Management Short Course

 

Employment Equity Training

The new Employment Equity Amendment Bill which has just been released, has far stricter stipulations for employers who don’t take EE seriously. Its impact will be hard hit in small, medium-sized, and large South African businesses.

Employers who don’t comply can expect harsher enforcement, penalties and even prosecution in extreme cases.Companies could potentially receive fines of up to R3 million or up to ten percent of their annual turnover.

The Department of Labour is now issuing fines of up to R900 000 or 10% of annual turnover to companies who don’t fully comply with the Employment Equity Act. This training programme enables managers and consultation forums to work together effectively to ensure a constructive business transformation process.

This course will enable participants to:

  • Develop a common understanding of the Employment Equity and Skills Development Acts and their relevance to business in South Africa
  • Understand the functions and responsibilities of Employment Equity Consultation Committees
  • Know how to provide a meaningful contribution as members of a committee, through the understanding of essential skills required for consultation and meeting processes
  • Consult constructively with all staff on the drawing up and implementation of Employment Equity plans
  • Share information on what other South African organizations are doing to practically implement EE plans

Every designated employer is required to design and implement an employment Equity plan. The purpose of the employment Equity plan is to enable the employer “to achieve reasonable progress towards employment Equity”, to assist in eliminating unfair discrimination in the workplace, and to achieve equitable representation of employees from designated groups by means of affirmative action measures.

An employment Equity plan therefore must clearly set out the steps that the employer plans to follow to achieve these objectives. In order to assist employers, the Department of Labour published a Code of Good Practice on the Preparation, Implementation and Monitoring of Employment Equity Plans. The Department of Labour also published a user guide to the employment Equity act, detailing 10 steps to preparing and implementing an employment Equity plan. Every employer should be in possession of at least these two documents – the Code of Good Practice and the User Guide.

There is no rigid format for an employment Equity plan, and the act allows employers to customise the plan to suit their own needs. Employment Equity and affirmative action applies to all designated employers and their employees, particularly those employees from designated groups. Designated employers are employers who employee 50 or more employees, employers who employ less than 50 employees but whose annual turnover exceeds or equals the amounts in schedule 4 of the EEA, or an employer who has been declared a designated employer in terms of a collective agreement.

Certain state organs are excluded, such as the National Defence Force, the National Intelligence Agency and the South African Secret Service. Designated groups are Africans, Coloureds, and Indians, woman of all races, and people with disabilities. All employers who have 50 or more employees on the date on which reports were due are required to report, and all employers who have 150 or more employees on the date on which reports were due are required to comply with the reporting requirements for larger employers.

Chapter 3 of the employment Equity act requires that employers take certain affirmative action measures to achieve employment Equity.

  • Employers must consult with the unions and employees in order to make sure that the plan is accepted by everybody and to allow all parties to have fair input
  • Employers must analyse all employment policies, practices and procedures, and prepare a profile of their workforce in order to identify any problems relating to employment Equity.
  • Employers must prepare and implement an employment Equity plan, setting out the affirmative action measures they intend taking to achieve the employment Equity goals.
  • Employers must report to the Department of Labour on the implementation of the plan in order for the department to monitor their compliance.
  • Employers must display a summary of the provisions of the act in all languages relevant to their workplace. The summaries are available from the government printer and certain offices of the Department of Labour.

In the implementation of EE, we are concerned with a number of documents. These are the Code of Good Practice on the Implementation of Employment Equity Plans, the Employment Equity Act itself, the Regulations under the Employment Equity Act, and the user guide published by the Department of Labour. The Code of Good Practice on the Implementation of Employment Equity Plans is not law. It has been published as a guide to employers, and it does give some valuable tips and information. Despite not being law, the Code must be taken into account.

COURSE SUMMARY

  • Course Description: Employment Equity Training
  • Accredited:  NO. The training provider and the facilitators is however accredited, but not this course.
  • Duration: 2 days (booking for Committee members only 1 day required)
  • Hidden fees: None
  • Certificate: Certificate of attendance unless otherwise stated.
  • Activities/Assessment: Learners are required to apply skills and knowledge obtained on the course in the workplace. The facilitator will incorporate 70% practicality by means of examples, activities and role-plays during the contact session. Learners will receive a learner guide which will guide them thorough the process.
  • Location: Public courses in KZN Durban but we do from time to time schedule classes in Cape Town and Gauteng.
  • Discounts: No membership discount apply with short courses. Also see “Corporate Discount Packages” below for additional packages offered.
  • Pricing: Click here for a full pricing schedule
  • Additional Courses: We also offer our SETA Accredited Courses on request that will only include the learner guide. Additional cost of R55 for workbook optional.

SUPPORTING STRUCTURES

Currently we have the following supporting structures in place for our members:

  • Telephone support 7 days a week.
  • Whatsapp –
    • Cell. 0825507946 Tel. 0867227014 English.
    • Cell. Zulu 0727372733 Tel. 0318115749 English/Zulu.
  • Helpdesk – www.help.trainyoucan.co.za – 7 days a week (integrated email and sms notifications).
  • Weekly workshops in Durban on Fridays between 8am and 12am.
  • Skype support – contact helpdesk for details.
  • Members private forum with model answers to all  activities including JOB opportunities.

COURSE DETAIL

This programme consist of the following key areas:

1. ABOUT EMPLOYMENT EQUITY
-What is the background to Employment Equity?
-What was the background to the employment equity legislation?
-When must employers report?
-What is the purpose of the employment Equity Act in South Africa?
-What happens if I don’t report to the Department of Labour?

2. EMPOLOYMENT EQUITY STRATEGY
-What is an Employment Equity Strategy?
-When does Employment Equity planning take place?
-Who is involved in developing an Employment Equity Strategy?
-What information is included in an Employment Equity Strategy?
-What are qualitative goals and objectives?
-What are quantitative goals and objectives?
-Can the government-wide goals be adjusted to meet departmental needs?
-Criteria for Effective Employment Equity Programs

3. CODES OF GOOD PRACTICE
-Introduction
-The Purpose of the Codes of Good Practice

4. AFFIRMATIVE ACTION
-What is affirmative action?
-What is the aim of affirmative action?
-Practically, how would this reflect in a workplace?
-Where does affirmative action apply?
-What does an employer need to do to comply?
-What else is expected from an employer?

5. BLACK ECONOMIC EMPOWERMENT
-BEE objectives
-BEE codes and scorecard

6. DISCRIMINATION
-Unfair discrimination:
-Steps to take when unfair discrimination takes place:

7. RECRUITMENT AND SELECTION PROCESS
-Discrimination and the right to privacy in the recruitment process.
-Direct and indirect discrimination:
-The difference between fair and unfair discrimination:
-Affirmative action measures:
-Inherent requirement of the job:
-Medical Testing
-Psychometric testing
-Privacy during an Interview
-How does affirmative action and skills shortage affect recruitment?
-Suitably qualified Candidates.

8. EMPLOYMENT EQUITY COMMITTEE / FORUM
-Employment Equity Managers
-Some of the critical interventions needed to make your EE Committee effective, are:
-Selection and appointment of Employment Equity Committee / Forum
-Objectives for the Committee or Forums:

9. EMPLOYMENT EQUITY PLAN
-General Equity Plan questions and answers.
-Definitions

10. EMPLOYMENT EQUITY REPORT
-Form EEA 2
-Form EEA 4
-Other Employment Equity Forms

11. COMMUNICATION DURING MEETINGS
-The Meeting’s Objective
-Use Time Wisely
-Satisfying Participants that a Sensible Process Has Been Followed

New amendments to the Employment Equity Act 2014 planned:

 Recruit new staff…

  1. Train staff…
  2. Pay your employees…
  3. Do your EE reporting…
  4. Do your EE plans…

WHO SHOULD ATTEND

  • General Staff
  • Supervisors
  • Junior Management
  • Senior Management
  • Equity Forum Members

ENROLMENT REQUIREMENTS

  • Minimum of 14 days workplace experience in the workplace. (part time or full time)
  • Basic communication skills (English = reading and writing skills on a NQF level 1 (Grace 8 or higher))
  • Able to attend the contact session and any of our workshops offered.

Learner preparation for the contact session (Classroom Training)

COMPULSORY:

    • Attending the full contact session. (Classroom Session)
    • Copy of ID document
    • Pen and paper.

PROCESS FLOW

  1. Enrol as a learner with Trainyoucan by completing the application form. (PDF document or the online enrolment)
  2. Attend the contact session with Trainyoucan.
  3. We provide you with all the learning material that you need.
  4. Certification (Attendance) on completion.

CORPORATE PACKAGES – ON-SITE (YOU SAVE MONEY)

We offer corporate packages on site to reduce the cost and make training more affordable. Our corporate packages work as follows:

  1. You provide the venue – you safe money!
  2. We provide the Facilitator – you only pay the daily Facilitator rate!
    • Facilitator daily rate
    • Administration and booking fee
    • Delegate manual and certificate: R95 per person Inc.
    • Travelling: only outside urban areas where specified.
  3. Set price of R95 per manual and certificate or each person attending.
  4. Deposit 50% required as confirmation of the course and 50% on completion (last day).

Terms of agreement:

  • The employer provide the venue.
    • Where possible we require we request U-Shape or Boardroom style.
    • Employer to indicate if flipchart is available. (TRAINYOUCAN will provide where not possible)
  • The employer provide refreshments (teas on arrival, morning and afternoon) – Where not possible TRAINYOUCAN will make arrangements.
  • Catering – this is totally dependent on the employer/organisations internal policies and procedures.
  • Session start: All sessions will be starting 8h30 in the morning until 16h00 unless otherwise communicated.
  • TRAINYOUCAN will provide an SETA Accredited Facilitator with the scope to deliver the required programmes for the duration of the course.
  • Maximum of 12 delegates per class requested.
  • Request brief outline or training needs/gap from the employer/organisation to assist Facilitators in addressing special needs during the training sessions.
  • Bookings and arrangements can be confirmed directly with the Facilitators however all bookings and payments will be accepted on a valid invoice from our accounts department.
  • Payment Request: Strictly on invoice only!

TRAINYOUCAN Accredited Training Network | REG. 2009-150422-23 |  Accreditation: ETDP SETA – ETDP10687 | BEE 201310-21 – Level 4

Learnership Determination – BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997 SECTORAL DETERMINATION NO 5: LEARNERSHIPS

 

 

BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

 

 

SECTORAL DETERMINATION NO 5: LEARNERSHIPS

 

I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of Section 55(1) of the Basic Conditions of Employment Act no 75 of 1997, read together with Section 18(4) of the Skills Development Act, No 97 of 1998 hereby make the sectoral determination establishing conditions of employment and rates of allowances for learners in South Africa and fix the second Monday after the date of publication of this notice as the date from which provisions of this determination shall be binding upon all employers and learners in all sectors where Sector Education Authorities (SETAs) have been established.

 

 

 

M.M.S. MDLADLANA, MP

Minister of Labour

 

 

 

 

 


SCHEDULE

 

 

TABLE OF CONTENTS                                                                   PAGE NO.

 

 

  1. 1.                  Definitions                                                                                          2-4
  2. 2.                  Area and scope of determination                                                        4                                        
  3. 3.                  Learner’s allowances                                                                           4-5
  4. 4.                  Calculation of remuneration and allowances                                      6
  5. 5.                  Payment of remuneration                                                                    6
  6. 6.                  Information about remuneration                                                         7
  7. 7.                  Deductions and other acts concerning remuneration                          7-8
  8. 8.                  Interpretation of day                                                                           8
  9. 9.                  Ordinary hours of work                                                                      8-9
  10. 10.              Overtime                                                                                             9
  11. 11.              Compressed working week                                                                 9-10
  12. 12.              Averaging of hours of work                                                                10
  13. 13.              Meal intervals                                                                                      10-11
  14. 14.              Daily and weekly rest period                                                              11
  15. 15.              Pay for work on Sundays                                                                    11-12
  16. 16.              Night work                                                                                          12-13
  17. 17.              Public holidays                                                                                                13-14
  18. 18.              Emergency work                                                                                 14
  19. 19.              Annual leave                                                                                       14-15
  20. 20.              Pay for annual leave                                                                            15-16
  21. 21.              Sick leave                                                                                            16-17
  22. 22.              Proof of incapacity                                                                              17
  23. 23.              Application to occupational accidents and diseases                           17
  24. 24.              Maternity leave                                                                                   18
  25. 25.              Protection of learners before and after birth of a child                       18
  26. 26.              Family responsibility leave                                                                  19-20
  27. 27.              Contract of employment                                                                     20-21
  28. 28.              Informing learners of their rights                                                        21
  29. 29.              Keeping of records                                                                              21
  30. 30.              Termination                                                                                         22
  31. 31.              Payments on termination                                                                     22
  32. 32.              Certificate of service                                                                           22
  33. 33.              Disputes about this determination                                                      22
  34. 34.              Keeping of the determination for learners                                          23

 

Annexure “A” Certificate of service

 

 

 

 

[a75y1997s1]DEFINITIONS

 

1.         In this Act, unless the context indicates otherwise-

 

‘Act’ means the Skills Development Act, 1998 (Act No 97 of 1998)

 

‘agreement’ includes a collective agreement;

 

‘allowance’ means the amount of money paid or payable to a learner in respect of ordinary hours of work or, if they are shorter, the hours a learner normally works in a day or week;

 

‘bargaining council’ means a bargaining council registered in terms of the Labour Relations Act, 1995, and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act;

 

‘CCMA’ means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995;

 

‘collective agreement’ means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

 

(a)                one or more employers;

(b)                one or more registered employers’ organisations; or

(c)                one or more employers and one or more registered employers’ organisation;

 

and includes a collective agreement concluded in a bargaining council and binding in terms of either section 31 or 32 of the Labour Relations Act, 1995;

 

‘credit’ means a credit as defined in the Regulations made under the South African Qualifications Authority Act, 1995 (Act 58 of 1995) published in Government Notice 18787 of 28 March 1998;

 

‘dispute’ includes an alleged dispute;

 

‘Labour Relations Act, 1995′ means the Labour Relations Act, 1995 (Act 66 of 1995);

 

‘medical practitioner’ means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974);

‘midwife’ means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act 50 of 1978);

 

‘Minister’ means the Minister of Labour;

 

‘month’ means a calendar month;

 

‘ordinary hours of work’ means the hours of work permitted in terms of clause 9 or in terms of any agreement in terms of clauses 11 or 12;

 

‘NQF level’ means a level of the National Technical Qualifications Framework referred to in the regulation 3 of the Regulations made under the South African Qualifications Authority Act, 1995 (Act no. 58 of 1995) published in Government Notice 18787 of 28 March 1998;

 

‘overtime’ means the time that a learner works during a day or a week in excess of ordinary hours of work;

 

‘public holiday’ means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act 36 of 1994);

 

‘registered employers’ organisation’ means an employers’ organisation registered under section 96 of the Labour Relations Act, 1995;

 

‘registered trade union’ means a trade union registered under section 96 of the Labour Relations Act, 1995;

 

‘remuneration’ means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and ‘remunerate’ has a corresponding meaning; [1]

 

‘sector’ means an industry or a service or a part of an industry or a service;

 

‘sectoral determination’ means a sectoral determination made under Chapter Eight of the Basic Conditions of Employment Act, 1997;

 

‘wage’ means the amount of money paid or payable to a learner in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or a week;

 

‘week’ in relation to a learner, means the period of seven days within which the working week of that learner ordinarily falls;

 

‘work’ includes any time that the learner is required to spend in study periods or theoretical learning sessions with the training provider in terms of the learnership agreement’;

 

‘workplace’ means any place where learners work.

 

 

[a75y1997s6]APPLICATION OF THIS DETERMINATION

 

2. (1)  This determination applies to –

 

(a)                the employment of a learner –

 

(i)       who has concluded a learnership agreement in terms of section 17 of the Act;  and

(ii)     who was not in the employment of the employer party to the learnership agreement when the agreement was concluded.

 

(b)     to every employer who employs a learner contemplated in sub-paragraph (a) in respect of the employment of that learner.

 

(2)  (a)      This determination forms part of the contract of employment of any learner employed in terms of section 18(2) of the Act.

 

(b)      Sub-paragraph (a) does not prevent an employer and a learner concluding a contract of employment in terms of section 18(2) of the Act, which contains terms, and conditions that are more favourable to the learner.

 

(3) This determination takes precedence over any collective agreement, except insofar as a collective agreement concluded after this determination comes into effect expressly provides for learners to receive an allowance or conditions of employment that are more favourable to the employee than provided for in this determination.

 

 

LEARNER’S ALLOWANCES

 

3.  (1) An employer must pay a learner an allowance calculated in terms of this clause.

 

(2)     Subject to subclause 3, a learner’s allowance must be calculated as a percentage of the qualified wage in accordance with column 3 of Table A.

 

 

(3)     No learner may be paid less than the applicable allowance specified in

column 4 of Table A.

 

(4)     For the purposes of this clause –

 

(a)           the “qualified wage” is the wage that the employer would pay the learner on obtaining the qualification for which the learnership is registered ;

(b)          “wage” means the amount of money payable to an employee in respect of the hours of work an employee normally works, excluding any overtime.

 

 

Table A

 

COLUMN 1

COLUMN 2

COLUMN 3

COLUMN 4

Exit level of learnership

Credits already earned by learner

Percentage of qualified wage to be paid as allowance

Minimum  allowance per week

NQF 1 or 2 0 – 120

35%

R120.00

121 – 240

69%

R240.00

NQF 3

0 – 120

17%

R120.00

121 – 240

40%

R226.00

241 – 360

53%

R370.00

NQF 4

0 – 120

13%

R120.00

121 – 240

25%

R240.00

241 – 360

53%

R370.00

361 – 480

56%

R540.00

NQF 5 to 8

0 – 120

8%

R120.00

120 – 240

18%

R260.00

240 – 360

27%

R389.00

361 – 480

38%

R548.00

481 – 600

49%

R700.00

 

 

[a75y1997s35]CALCULATION OF REMUNERATION AND ALLOWANCES

 

4. (1)  A learner’s allowance is calculated by reference to the number of hours the learner normally works.

 

(2)    For the purposes of calculating the allowance of a learner, a learner is deemed normally to work-

 

(a)           45 hours in a week, unless the learner ordinarily works a lesser number of hours in a week;

 

(b)          nine hours in a day, or seven and a half hours in the case of a learner who works for more than five days a week, or the number of hours that a learner works in a day in terms of an agreement concluded in accordance with clause 11, unless the learner normally works a lesser number of hours in a day.

 

(3)    A learner’s monthly remuneration or allowance is four and one-third times the learner’s weekly remuneration or allowance, respectively.

 

(4)    If a learner’s remuneration or allowance fluctuates significantly from period to period, any payment to that learner in terms of this Act must be calculated by reference to the learner’s remuneration or allowance during-

 

(a)           the preceding 13 weeks; or

(b)          if the learner has been in employment for a shorter period, that period.

 

 

PAYMENT OF REMUNERATION

 

5. (1)  An employer must pay to a learner any remuneration that is paid in money-

 

(a)           in South African currency;

(b)          daily, weekly, fortnightly or monthly; and

(c)           in cash, by cheque or by direct deposit into an account designated by the learner.

 

(2)     Any remuneration paid in cash or by cheque must be given to each learner-

 

(a)           at the workplace or at a place agreed to by the learner;

(b)          during the learner’s working hours or within 15 minutes of the commencement or conclusion of those hours; and

(c)           in a sealed envelope which becomes the property of the learner.

 

(3)     An employer must pay remuneration not later than seven days after-

 

(a)           the completion of the period for which the remuneration is payable; or

(b)          the termination of the learnership.

 

(4)     Subclause (3)(b) does not apply to any pension or provident fund payment to a learner that is made in terms of the rules of the fund.

 

 

 

 

 

[a75y1997s33]INFORMATION ABOUT REMUNERATION

 

6. (1) An employer must give a learner the following information in writing on each day the learner is paid:

 

(a)           the employer’s name and address;

(b)          the learner’s name and learnership;

(c)           the period for which the payment is made;

(d)          the learner’s remuneration in money;

(e)           the amount and purpose of any deduction made from the remuneration;

(f)           the actual amount paid to the learner; and

(g)          if relevant to the calculation of that learner’s remuneration-

(h)          the learner’s rate of remuneration and overtime rate;

(i)            the number of ordinary and overtime hours worked by the learner during the period for which the payment is made;

(j)            the number of hours worked by the learner on a Sunday or public holiday during that period; and

(k)          if an agreement to average working time has been concluded in terms of clause 12, the total number of ordinary and overtime hours worked by the learner in the period of averaging.

 

(2)     The written information required in terms of subclause (1) must be given to each learner-

 

(a)           at the workplace or at a place agreed to by the learner; and

(b)          during the learner’s ordinary working hours or within 15 minutes of the commencement or conclusion of those hours.

 

 

[a75y1997s34]DEDUCTIONS AND OTHER ACTS CONCERNING REMUNERATION

 

7. (1)  An employer may not make any deduction from a learner’s remuneration unless-

 

(a)           subject to subclause (2), the learner in writing agrees to the deduction in respect of a debt specified in the agreement; or

(b)          the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

 

(2)     A deduction in terms of subclause (1)(a) may be made to reimburse an employer for loss or damage only if-

 

(a)           the loss or damage occurred in the course of employment and was due to the fault of the learner;

 

(b)          the employer has followed a fair procedure and has given the learner a reasonable opportunity to show why the deductions should not be made;

(c)           the total amount of the debt does not exceed the actual amount of the loss or damage; and

(d)          the total deductions from the learner’s remuneration in terms of this subclause do not exceed one-quarter of the learner’s remuneration in money.

 

(3)      A deduction in terms of subclause (1)(a) in respect of any goods purchased by the learner must specify the nature and quantity of the goods.

 

(4)      An employer who deducts an amount from a learner’s remuneration in terms of subclause (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award.

 

(5)     An employer may not require or permit a learner to-

 

(a)           repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the learner’s remuneration; or

(b)          acknowledge receipt of an amount greater than the remuneration actually received.

 

(6)   An employer may not make any deduction from a learner’s remuneration, or require a learner to repay any amount, in respect of any tools, materials, equipment, protective clothing, uniforms or training material required for the purposes of the learnership.

 

[a75y1997s8]INTERPRETATION OF DAY

 

8. For the purposes of clauses 9 to 15, ‘day’ means a period of 24 hours measured from the time when the learner normally commences work and ‘daily’ has a corresponding meaning.

 

 

[a75y1997s9]ORDINARY HOURS OF WORK

 

9. (1)  Subject to clauses 8 to 18, an employer may not require or permit a learner to work more than-

 

(a)           45 hours in any week; and

(b)          nine hours in any day if the learner works for five days or fewer in week; or

(c)           eight hours in any day if the learner works on more than five days in a week.

 

(2) A learner’s ordinary hours of work in terms of subclause (1) may by agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable a learner whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.

 

[a75y1997s10]OVERTIME

 

10. (1)  Subject to clauses 8 to 18, an employer may not require or permit a learner-

 

(a)           to work overtime except in accordance with an agreement;

(b)          to work more than-

(i)            three hours’ overtime a day;

(ii)          ten hours’ overtime a week.

 

(2)     An employer must pay a learner at least one and one-half times the learner’s allowance for overtime worked.

 

(3)    Despite subclause (2), an agreement may provide for an employer  to-

 

(a)           pay a learner not less than the learner’s ordinary allowance for overtime worked and grant the learner at least 30 minutes’ time off on full pay for every hour of overtime worked; or

(b)          grant a learner at least 90 minutes’ paid time off for each hour of overtime worked.

 

(4) (a)    An employer must grant paid time off in terms of subclause (3) within one month of the learner becoming entitled to it.

(b)  An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

 

(5) An agreement concluded in terms of subclause (1) with a learner when the learner commences employment, or during the first three months of employment, lapses after one year.

 

 

[a75y1997s11]COMPRESSED WORKING WEEK

 

11. (1)  An agreement in writing may require or permit a learner to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 9, without receiving overtime pay.

 

(2)      An agreement in terms of subclause (1) may not require or permit a learner to work-

 

(a)           more than 45 ordinary hours of work in any week;

(b)          more than ten hours’ overtime in any week; or

(c)           on more than five days in any week.

 

[a75y1997s12]AVERAGING OF HOURS OF WORK

 

12. (1)  Despite clauses 9 (1) and (2) and 10 (1) (b), the ordinary hours of work and overtime of a learner may be averaged over a period of up to four months in terms of a collective agreement.

 

(2)      An employer may not require or permit a learner who is bound by a collective agreement in terms of subclause (1) to work more than-

 

(a)           an average of 45 ordinary hours of work in a week over the agreed period;

(b)          an average of five hours’ overtime in a week over the agreed period;

(c)           twelve hours in a day, inclusive of the meal intervals required in terms of clause 13.

 

(3)       A collective agreement in terms of subclause (1) lapses after 12 months.

 

(4)      Subclause (3) only applies to the first two collective agreements concluded in terms of subclause (1).

 

 

[a75y1997s14]MEAL INTERVALS

 

13. (1)  An employer must give a learner who works continuously for more than five hours a meal interval of at least one continuous hour.

 

(2)      During a meal interval the learner may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another learner.

 

(3)      A learner must be remunerated-

 

(a)           for a meal interval in which the learner is required to work or is required to be available for work; and

(b)          for any portion of a meal interval that is in excess of 75 minutes, unless the learner lives on the premises at which the workplace is situated.

 

(4)      For the purposes of this clause, work is continuous unless it is interrupted by an interval of at least 60 minutes.

 

(5)      An agreement in writing may-

 

(a)           reduce the meal interval to not less than 30 minutes;

(b)          dispense with a meal interval for a learner who works fewer than six hours on a day.

 

[a75y1997s15]DAILY AND WEEKLY REST PERIOD

 

14.  (1)  An employer must allow a learner-

 

(a)           a daily rest period of at least twelve consecutive hours between ending and recommencing work; and

(b)          a weekly rest period of at least 36 consecutive hours, which, unless otherwise agreed, must include Sunday.

 

(2)       A daily rest period in terms of subclause (1)(a) may, by written agreement, be reduced to 10 hours for a learner-

 

(a)           who lives on the premises at which the workplace is situated; and

(b)          whose meal interval lasts for at least three hours.

 

(3)  Despite subclause (1)(b), an agreement in writing may provide for-

 

(a)           a rest period of at least 60 consecutive hours every two weeks; or

(b)          a learner’s weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently.

 

 

PAY FOR WORK ON SUNDAY

 

15. (1)  An employer must pay a learner who works on a Sunday at double the learner’s allowance for each hour worked, unless the learner ordinarily works on a Sunday, in which case the employer must pay the learner at one and one-half times the learner’s allowance for each hour worked.

 

(2)       If a learner works less than the learner’s ordinary shift on a Sunday and the payment that the learner is entitled to in terms of subclause (1) is less than the learner’s ordinary daily allowance, the employer must pay the learner the learner’s daily allowance.

 

(3)      Despite subclauses (1) and (2), an agreement may permit an employer to grant a learner who works on a Sunday paid time off equivalent to the difference in value between the pay received by the learner for working on the Sunday and the pay that the learner is entitled to in terms of subclauses (1) and (2).

 

(4)      Any time worked on a Sunday by a learner who does not ordinarily work on a Sunday is not taken into account in calculating a learner’s ordinary hours of work in terms of clause 9 (1) and (2), but is taken into account in calculating the overtime worked by the learner in terms of clause 10 (1)(b).

 

(5)      If a shift worked by a learner falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day.

 

(6)    (a)    An employer must grant paid time off in terms of subclause (3) within one month of the learner becoming entitled to it.

(b)  An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

 

 

[a75y1997s17]NIGHT WORK

 

16. (1)  In this clause, ‘night work’ means work performed after 18:00 and before 06:00 the next day.

 

(2)      An employer may only require or permit a learner to perform night work, if so agreed, and if-

 

(a)           the learner is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and

(b)          transportation is available between the learner’s place of residence and the workplace at the commencement and conclusion of the learner’s shift.

 

(3)       An employer who requires a learner to perform work on a regular basis after 23:00 and before 06:00 the next day must-

 

(a)           inform the learner in writing, or orally if the learner is not able to understand a written communication, in a language that the learner understands-

 

(i)            of any health and safety hazards associated with the work that the learner is required to perform; and

(ii)          of the learner’s right to undergo a medical examination in terms of paragraph (b);

 

(b)          at the request of the learner, enable the learner to undergo a medical examination, for the account of the employer, concerning those hazards-

 

(i)            before the learner starts, or within a reasonable period of the learner starting, such work; and

(ii)          at appropriate intervals while the learner continues to perform such work; and

 

(c)           transfer the learner to suitable day work within a reasonable time if-

 

(i)            the learner suffers from a health condition associated with the performance of night work; and

(ii)          it is practicable for the employer to do so.

 

(4)      For the purposes of subclause (3), a learner works on a regular basis if the learner works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year.

 

(5)      The record of any medical examination performed in terms of this determination must be kept confidential and may be made available only-

 

(a)           in accordance with the ethics of medical practice;

(b)          if required by law or court order; or

(c)           if the employee has in writing consented to the release of that information.

 

 

[a75y1997s18]PUBLIC HOLIDAYS[2]

 

17. (1)  An employer may not require a learner to work on a public holiday except in accordance with an agreement.

 

(2)       If a public holiday falls on a day on which a learner would ordinarily work, an employer must pay-

 

(a)           a learner who does not work on the public holiday, at least the allowance that the learner would ordinarily have received for work on that day;

(b)          a learner who does work on the public holiday-

 

(i)            at least double the amount referred to in paragraph (a); or

(ii)          if it is greater, the amount referred to in paragraph (a) plus the amount earned by the learner for the time worked on that day.

 

(3)      If a learner works on a public holiday on which the learner would not ordinarily work, the employer must pay that learner an amount equal to-

 

(a)           the learner’s daily allowance; plus

(b)          the amount earned by the learner for the work performed that day.

 

(4)      An employer must pay a learner for a public holiday on the learner’s usual pay day.

 

(5)  If a shift worked by a learner falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.

 

 

EMERGENCY WORK

 

18. (1)  An employer may only require or permit a learner to work in excess of the limits on working times prescribed in clauses 8 to 17 in order to perform work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary working hours of work.

 

(2)      Any work that any learner performs in terms of subclause (1) must be remunerated-

 

(a)           at overtime rates in accordance with clause 10(2), or

(b)          if it is performed on a Sunday or on a public holiday at the applicable rate in terms of clause 15 or 17 respectively.

 

 

[a75y1997s20]ANNUAL LEAVE

 

19. (1)   A learner who has entered into a learnership agreement in respect of learnership requiring more than 120 credits is entitled to one week’s paid leave for every 40 credits that the learner earns during the learnership or every four months worked whichever is the lesser.

 

(2)

A learner is entitled to take leave referred to in subclause (1) during learnership.

 

(3)      A learner who has accumulated sufficient leave is entitled to take up to three weeks leave consecutively in any year of the learnership.

 

(4)      Unless a learner elects to accumulate leave for the purpose of subclause (3), an employer must grant leave not later than four months after the leave was earned.

 

(5)      An employer may not require or permit a learner to take annual leave during-

 

(a)           any other period of leave to which the learner is entitled in terms of  clauses 21, 24 and 26; or

(b)          any period of notice of termination of learnership.

 

(6)      Despite subclause (5), an employer must permit a learner, at the learner’s written request, to take leave during a period of unpaid leave.

 

(7)      An employer may reduce a learner’s entitlement to leave by the number of days of occasional leave on full remuneration granted to the learner at the learner’s request.

 

(8)      An employer must grant a learner an additional day of paid leave if a public holiday falls on a day during a learner’s annual leave on which the learner would ordinarily have worked.

 

(9)      An employer may not require or permit a learner to work for the employer during any period of annual leave.

 

(10)  Leave must be taken-

 

(a)           in accordance with an agreement between the employer and learner;

or

(b)          if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this clause.

 

(11)      An employer may not pay a learner instead of granting paid leave in terms of this clause except-

 

(a)           on termination of learnership; and

(b)          in accordance with clause 31(b).

 

 

 

 

 

[a75y1997s21]PAY FOR ANNUAL LEAVE

 

20.  (1)  An employer must pay a learner leave pay at least equivalent to the remuneration that the learner would have received for working for a period equal to the period of annual leave, calculated at the learner’s rate of remuneration immediately before the beginning of the period of leave.

 

(2)      For the purposes of calculating a learner’s leave pay, a learner’s remuneration-

 

(a)           includes the cash value of any payment in kind that forms part of the learner’s remuneration unless the learner receives that payment in kind during the period of leave; but

(b)          excludes-

(i)            gratuities;

(ii)          allowances paid to a learner for the purposes of enabling a learner to work; and

(iii)        any discretionary payments not related to the learner’s hours of work or work performance.

 

(3)       An employer must pay a learner leave pay-

 

(a)           before the beginning of the period of leave; or

(b)          by agreement, on the learner’s usual pay day.

 

 

[a75y1997s22]SICK LEAVE

 

21. (1)  A learner is entitled to one day’s paid sick leave for every 26 days, in which the learner works or receives training during a learnership.

 

(2)      Subject to clause 22, an employer must pay a learner for a day’s sick leave-

 

(a)           the allowance the learner would ordinarily have received for work on that day; and

(b)          on the learner’s usual pay day.

 

(3)     An agreement may reduce the pay to which a learner is entitled in respect of any day’s absence in terms of this clause if-

 

(a)           the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and

 

 

 

(b)          the learner’s entitlement to pay-

 

(i)            for any day’s sick leave is at least 75 per cent of the allowance payable to the learner for the ordinary hours the learner would have worked on that day; and

(ii)    for sick leave over the sick leave cycle is at least equivalent to the learner’s entitlement in terms of subclause (2).

 

 

PROOF OF INCAPACITY

 

22. (1)  An employer is not required to pay a learner in terms of clause 21 if the learner has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the learner was unable to work for the duration of the learner’s absence on account of sickness or injury.

 

(2)      The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.

 

(3)      If it is not reasonably practicable for a learner who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subclause (1) unless the employer provides reasonable assistance to the learner to obtain the certificate.

 

 

APPLICATION TO OCCUPATIONAL ACCIDENTS OR DISEASES

 

23.         Clauses 21 and 22 do not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993), or the Occupational Diseases in Mines and Works Act, 1973 (Act 78 of 1973), except in respect of any period during which no compensation is payable in terms of those Acts.

 

 

 

 

 

 

 

MATERNITY LEAVE[3]

 

24.  (1)  (a)     A learner is entitled to at least four consecutive months’ maternity leave.

      (b)    A learner is not entitled to receive her allowance during any period of maternity leave she takes.

 

(2)  A learner may commence maternity leave-

 

(a)           at any time from four weeks before the expected date of birth, unless otherwise agreed; or

(b)          on a date from which a medical practitioner or a midwife certifies that it is necessary for the learner’s health or that of her unborn child.

 

(3)  No learner may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.

 

(4) A learner who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the learner had commenced maternity leave at the time of the miscarriage or stillbirth.

(5)  A learner must notify an employer in writing, unless the learner is unable to do so, of the date on which the learner intends to-

 

(a)           commence maternity leave; and

(b)          return to work after maternity leave.

 

(6)  Notification in terms of subclause (5) must be given-

 

(a)           at least four weeks before the learner intends to commence maternity leave; or

(b)          if it is not reasonably practicable to do so, as soon as is reasonably practicable.

 

 

[a75y1997s26]PROTECTION OF LEARNERS BEFORE AND AFTER BIRTH OF A CHILD

 

25. (1)  No employer may require or permit a pregnant learner or a learner who is nursing her child to perform work that is hazardous to her health or the health of her child.

 

(2)      During a learner’s pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if-

 

(a)           the learner is required to perform night work, as defined in clause 16 (1) or her work poses a danger to her health or safety or that of her child; and

(b)          it is practicable for the employer to do so.

 

 

[a75y1997s27]FAMILY RESPONSIBILITY LEAVE

 

26. (1)  This clause applies to a learner-

 

(a)           who has been in employment with an employer for longer than four months; and

(b)          who works for at least four days a week for that employer.

 

(2)       An employer must grant a learner, during each annual leave cycle, at the request of the learner, three days’ paid leave, which the learner is entitled to take-

 

(a)           when the learner’s child is born;

(b)          when the learner’s child is sick; or

(c)           in the event of the death of-

(i)            the learner’s spouse or life partner; or

(ii)          the learner’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

 

(3)      Subject to subclause (5), an employer must pay a learner for a day’s family responsibility leave-

 

(a)           the allowance the learner would ordinarily have received for work on that day; and

(b)          on the learner’s usual pay day.

 

(4)      A learner may take family responsibility leave in respect of the whole or a part of a day.

 

(5)      Before paying a learner for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in subclause (2) for which the leave was required.

 

(6)      A learner’s unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues.

 

(7)      A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this clause.

 

 

[a75y1997s29]cONTRACTCONTRACT OF EMPLOYMENT

 

27. (1)  A contract of employment concluded between an employer and a learner in terms of section 18(2) of the Act must  –

 

(a)           be in writing and be signed by the employer and the learner;

(b)          be concluded when the learner commences employment; and

(c)           to the extent appropriate, contain the following particulars:

 

(i)            the full name and address of the employer;

(ii)          the name of the learner and the learnership;

(iii)        the place of work, and, where the learner is required or permitted to work at various places, an indication of this;

(iv)        the date on which the employment began;

(v)          the learner’s ordinary hours of work and days of work,  including the time that the learner is required to spend in study periods or theoretical learning sessions with the training provider;

(vi)        the learner’s allowance or the rate and method of calculating the allowance;

(vii)      the rate of pay for overtime work;

(viii)    any other cash payments that the learner is entitled to;

(ix)        any payment in kind that the learner is entitled to and the value of the payment in kind;

(x)          how frequently remuneration will be paid;

(xi)        any deductions to be made from the learner’s remuneration;

(xii)      the leave to which the learner is entitled;

(xiii)    the date when employment is to terminate;

(xiv)    a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the learner where a copy of each may be obtained.

 

(2)      The leaner must be supplied with a copy of the contract of employment.

 

(3)     When any matter listed in subclause (1) changes-

 

(a)           the contract of employment must be revised to reflect the change;

(b)          the employer and the learner must initial the change; and

 

(c)           the learner must be supplied with a copy of the contract reflecting the change.

 

(4)      If a learner is not able to understand the written contract, the employer must ensure that it is explained to the learner in a language and in a manner that the learner understands.

 

(5)      A contract of employment in terms of this clause must be kept by the employer for a period of three years after the termination of the learnership.

 

 

[a75y1997s30]INFORMING LEARNERS OF THEIR RIGHTS

 

28.  An employer must display at the workplace where it can be read by learners a statement in the prescribed form of the learner’s rights under this Act in the official languages, which are spoken in the workplace.

 

 

KEEPING OF RECORDS

 

29. (1)  Every employer must keep a record containing at least the following information:

 

(a)           the learner’s name and learnership;

(b)          the time worked by each learner;

(c)           the remuneration paid to each learner;

(d)          the date of birth of any learner under 18 years of age.

 

(2)       A record in terms of subclause (1) must be kept by the employer for a period of three years from the termination of the learnership.

 

(3)       No person may make a false entry in a record maintained in terms of subclause (1).

 

 

.

TERMINATION

 

30.  (1) An employer may only terminate the contract of employment of a learner if–

 

(a)      the period of duration specified in the learnership agreement has expired;

(b)      the learner successfully completes the learnership;

(c)      the employer and learner have agreed in writing to terminate the learnership agreement, or if there is no such agreement the SETA which registered the agreement approves its termination; or

(d)     the learner is fairly dismissed for a reason related to the learner’s conduct or capacity as an employee.

 

 

[a75y1997s40]PAYMENTS ON TERMINATION

 

31. (1)  On termination of employment, an employer must pay a learner-

 

(a)        for any paid time off that the learner is entitled to in terms of clause 10 (3) or 15 (3) and that the learner has not taken;

(b)        remuneration calculated in accordance with clause 20(2) for any period of leave due in terms of clause 19(1) that the learner has not taken.

 

 

[a75y1997s42]CERTIFICATE OF SERVICE

 

32. (1)  On termination of employment a learner is entitled to a certificate of service substantially in the form of annexure “A” stating-

 

(a)    the learner’s full name;

(b)    the name and address of the employer;

(c)      a description of any council or sectoral employment standard by which the employer’s business is covered;

(d)    the date of commencement and date of termination of the learners’ employment with the employer;

(e)    a brief description of the training and work experience received by the learner;

(f)       the remuneration at date of termination;

(g)      if the learner so requests, the reason for termination of employment.

 

 

DISPUTES ABOUT THIS DETERMINATION

 

33. (1)  A party dispute in terms of this determination may refer the dispute to the CCMA by submitting  a completed Form 7.11 published in terms of the Labour Relations Act 66 of 1995.

 

(2)     The party who refers a dispute in terms of subclause (1) must satisfy the CCMA that a copy of the referral has been served on all the other parties to the dispute.

 

(3)    The relevant provisions of Part C and D, Chapter VII of the Labour Relations Act 66 of 1995, read with the changes required by the context, apply in respect of a dispute referred to in terms of subclause (1).

 

 

 

 

KEEPING OF THE DETERMINATION FOR LEARNERS

 

34. (1)  Every employer on whom this determination is binding must-

 

(a)           keep a copy of the determination available in the workplace at all times;

(b)           make the copy available for inspection by a learner; and

(c)            give a copy of the determination-

 

(i)     to a learner who has paid the prescribed fee; and

(ii)    free of charge, on request, to a learner who is a trade union representative or a member of a workplace forum.

 

 

 

                                                  ANNEXURE “A”

DETERMINATION OF TERMS AND CONDITIONS OF EMPLOYMENT FOR LEARNERS

 

READ THIS FIRST

 

ß

 

WHAT IS THE PURPOSE OF THIS FORM?

 

This form is proof of learnership with an employer.

 

WHO FILLS IN THIS FORM?

 

The employer.

 

WHERE DOES THIS FORM GO?

 

To the learner.

 

INSTRUCTIONS

 

This form may be issued upon termination of learnership.

 

NOTE

 

The reason for termination of learnership must only be given if requested by the learner.

 

This is only a model and not a prescribed form. Completing a document in another format containing the same information is sufficient compliance with

clause 32.

 

 

                                        CERTIFICATE OF SERVICE

 

I ………………………………………………………………………………

(Name and designation of person)

 

of

 

…………………………………………………………………………………

(Full name of employer)

 

Address:   …………………………………………………………………

                   …………………………………………………………………

in the …………………………………..…………………………….. (Trade)

 

declare that

 

…………………………………………………………………………………

(Full name of learner)

 

…………………………………………………………………………………

(I.D. no.)

 

was in learnership

 

from …………………………….….. until …………………………………..

 

as

 

…………………………………………………………………………………

(Type of learnership)

 

…………………………………………………………………………………

any other information………………………………………………………..

 

 

On termination of learnership this learner was earning:        R……………….

 

…………………………..………………………………. (Amount in words)

 

„ per hour   „ per day   „ per week   „ per fortnight   „ per month   „ per year

 

……………………………………….              …………………………

Employer’s signature                                     Date