Chapter 7 – VARIATION OF BASIC CONDITIONS OF EMPLOYMENT

This Chapter adresses that a Collective Agreement at Bargaining Council may vary from the BCEA in certain instances, however this should not be confused with a Contract of Employment. It goes further and gives the Minister of Employment and Labour the right to vary the BCEA once due process has been followed. Nothing too special to know in this Chapter.

Chapter 8 – SECTORIAL DETERMINATIONS

In previous writings did I refer to this, saying that certain industries have their own conditions and rules, and this is accordingly published and those operating in those industries adhere to those set of rules and conditions more than the BCEA. Prime examples of this would be the Motoring Industry (MIBCO), Metal and Engineering (MEIBC), Road Freight (NBCRFLI) etc. The rest of the Chapter goes further to explain how this is done and what needs to happen before it can be Gazetted and of course the legally binding nature of same. Those working in these specific industries do not really know and care about this part, rather more about what it says and what they need to adhere to.

Chapter 9 – EMPLOYMENT CONDITIONS COMMISSION

This just goes to the establishment of the Commission, that they advise the Minister and on what they advise, and lastly how the Commission is composed. There is nothing interesting in this Chapter unless you specifically work with it, which most companies do not, and seldom do we deal with this.

Chapter 10 – MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS

This deals a lot with Labour inspectors, how and by whom they are appointed, their functions and duties, what gives them the authority to come into any workplace without an appointment or warrant (this is limited with Domestic Employers), co-operation with inspectors, compliance orders, limitations, appeals or objections to compliance orders. For a great deal is this not something that companies need to know, however, we do and because we do, we will not bore you with the details but will advise accordingly based on what we know. Important thing is that should a Labour Inspector come knocking at your door, that you simply do not laugh it off or just do nothing as they do have powers which can ultimately land you in trouble for non-compliance, however, should you co-operate, they are more often than not friendly and helpful.

The legal proceedings part is by way of Labour Court, which is a High Court of South Africa and there can be interest of payments which is to be paid to another party. Our job is to prevent this of course.

The next part is a bit more interesting and for that I will quote the law and then accordingly add my comments where explanation is needed, in brackets.

Rights of employees

78 (1) Every employee has the right to

(a) make a complaint to a trade union representative, a trade union official or a labour inspector concerning an alleged failure or refusal by an employer to comply with this Act;

(b) discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person; (my interpretation here sadly this includes remuneration and benefits)

(c) refuse to comply with an instruction that is contrary to this Actor and sectoral determination;

(d) refuse to agree to any term or condition of employment that is contrary to this Act or any sectoral determination;

(e) inspect any record kept in terms of this Act that relates to the employment of that employee (specific note is made to “that” employee and not “all” employees;

(f) participate in proceedings in terms of this Act;

(g) request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee. (same as with e above)

(h) Every trade union representative has the right, at the request of an employee to inspect any record kept in terms of this Act that relates to the employment of that employee (same as with e and g above)

Protection of rights

79(1) In this section “employee” includes a former employee or an applicant for employment. (Yes, this includes the people that you interview)

(2) No person may discriminate against an employee for exercising a right conferred by this Part and no person may do or threaten to do, any of the following:

(a) Require an employee not to exercise a right confirmed by this Part:

(b) prevent an employee from exercising a right conferred by this Part: or

(c) prejudice an employee because of a past or present or anticipated—

(i) failure or refusal to do anything that an employer may not lawfully permit or require an employee to

do;

(ii) disclosure of information that the employee is lawfully entitled or required to give to another person;

or

(iii) exercise of a right conferred by this Part.

(3) No person may favour or promise to favour, an employee in exchange for the employee not exercising a right conferred by this Part. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle the dispute.

(The last part of this Chapter then just indicates where a dispute must be lodged at the CCMA or Bargaining Council, and then who carries the Burden of Proof – the person who alleges must prove thus the employee or Trade Union).

Chapter 11 – GENERAL

Section 82 speaks about Temporary Employment Services and what is the difference between a TES and an Independent Contractor. This is a short section with little detail and information for interpretation, so we rely more on the LRA for guidance in this instance.

Section 84 address the issue of Duration of Employment which is often relevant should there be a break in service. The short answer is that a break in service must be for longer than a year for previous service not to be considered. Why the person left does not matter, just as long as the person was not with the company for longer than 1 year.

Section 87 goes to the Codes of Good Practice and that the Minister, after consultation with NEDLAC must issue a COGP for a) Arrangement of Working Time, b) Protection of Employees during Pregnancy and after the Birth of a Child, c) Other Codes, and may of course replace current Codes with update versions.

Section 89 entitled registered Trade Union and Employer’s Organizations to represent their members in any matter referred to in the Act. This is the part where we obtain Locus Standi and have the right to be present in any and all matters, just like Trade Union Officials would.

The rest of the Chapter speaks about Confidentiality, answers not to be used in criminal prosecutions and obstruction, undue influence and fraud and that this could lead to criminal action being taken.

It further imposes maximum period of imprisonment for transgressions according to different sections of the Act.

Not to worry as our jobs are to keep you from doing anything that might lead to criminal action being taken which might land you in jail.

I hope that this series has been insightful and that you have learned something, however, should anything be unclear, or you wish to discuss your business and issues it may have regarded of the above, or anything in our previous writings, please do not hesitate to contact us.