Legislation of human capital Flashcards
Legislation of Equity
-Constitution of South Africa
-Labour Relations Act (LRA)
-Employment Equity Act (EEA)
-Broad Based Black Economic Empowerment (BBBEE)
-Skills Development Act (SDA)
-Basic Conditions of Employment Act (BCEA)
Constitution 108 of 1996
Fundamental Law of South Africa. No law may supersede the Constitution
Rights:
-Just administrative action
-Citezinship, Freedom of Movement
-Political
-Housing, Food and Water, Health Care, Social Security
-Protection of Children
-Basic Education
-Against unfair discrimination
-Freedom of trade, occupation, profession
-Freedom of association
-Protest
-Live in environment which is not harmful
Labour Relations Act 66 of 1995
-Enforce fundamental rights relating to labour issues
-Promote economic development, labour peace, social justice and democracy
-Does not apply to National Defence Force, National Intelligence Agency, Secret Service
-If business does not comply, employee can refer issue to the CCMA or Department of Labour
Positive Implications of LRA
-Ensures international labour standards are applied
-Ensures basic rights of employees and employers are protected
-Provides guidelines on how labour disputes should be handled
Negative Implications of LRA
-Trade Unions abuse power in politics
-Small businesses find difficulty in knowing what is allowed and not allowed
Discipline
Ensure correct behaviour from all parties.
Disciplinary Policy
Informs employees on acceptable behavior and standards as well as consequences of failing to meet these.
Grievance Procedure
Resolving a problem
-Employer
-Supervisor
-Line manager
-Human Capital Manager
-CCMA, Labour court
-Labour Appeal Court
Substantive Fairness
Dismissal due to:
-Incapacity
-Misconduct
-Operational Reasons
Incapacity
-Poor Work Performance (work that is incomplete, inaccurate, careless, of poor standard
.Employer must prove: work standard is fair, employee was aware of standard and given sufficient support
.Demotion or transfer should have been considered
-Poor Health
.Employer should try modify employee’s tasks to enable them to meet standard
.Extended unpaid leave, transfer and demotion should be considered
Misconduct
Forms: Abuse, Actions threatening safety of employees, Being under the influence, Bribery, Corruption, Fighting, Illegal industrial action
Before disciplinary action:
-Rule or standard was contravened
-Rule or standard is valid, reasonable
-Employee was aware of rule
-Rule is consistently applied
-Appropriate sanction is implemented
Operational Reasons
Reasons for Retrenchment:
-Restructuring
-Economic
-Technological
-Closing
For Procedural Fairness, Employer must Justify:
-Reason
-Steps were taken to avoid/minimise retrenchment
-Criteria to identify employees for retrenchment
-Notice periods were given
-Offers of severance pay
-Possible reemployment
Procedural Fairness (necessary steps)
- Complaint is put in writing and is fully investigated
- The accused should be advised of the full nature and details of the charge against them
- Date, time and venue of disciplinary hearing should be given to the accused
- The accused should be given reasonable time to prepare for disciplinary hearing
- The accused is entitled to have an interpreter
- The complainant presents their case first, giving evidence and calling a witness to testify
- The accused presents their defence second, evidence, witness
- Chairperson of hearing decides guilt/innocence
- If guilty, Chairperson considers aggravating/mitigating circumstances and decides fair sanction
- Chairperson advises accused of their rights to appeal and take matters to CCMA
Unfair Treatment
-Allocation of Benefits
-Unreasonably long probationary periods
-Discrimination
-Unfair disciplinary action
-Failing to comply with reemployment agreement
-Unfair treatment of whistleblower
-Preventing employee from belonging to a trade union
Unfair dismissal
-Participation is activities of trade union
-Striking
-Pregnancy/maternity leave
-Lack of appropriate notice
-Constructive Dismissal
Industrial Relations
Relationship between Employer, Employee, and Government. Establish industrial peace
Collective Bargaining
Employer and Trade Unions negotiate terms of employment (conditions, pay, benefits, hours, leave)
Industrial Action
Steps employees take to enforce their demands if collective bargaining process fails.
Types of Strikes
-Strike: Refusal to work
-Go-slow: Decreased productivity rate
-Work-to-rule: No more and no less than minimum requirements
-Intermittent strikes: Stop and start strike
-Overtime bans: Employees refuse to work overtime
-Picketing: Demonstrate in a public place outside the workplace
-Secondary: Strike in support of another strike
Procedure for Protected Strike
- Issue must be referred to the CCMA, a bargaining/statutory council
- CCMA/Council must aim to resolve issue for 30 days.
- If not possible to resolve, certificate must be issued
- Private sector: 48 hour notice period. State: 7 day notice period
Lock-out
Employer prevents employee’s to enter workplace. Wages do not have to be paid, employee’s cannot sue.
Bargaining Councils
-Can be formed by employers’ organisations and Trade unions in a particular sector
-Functions:
.Negotiate and enforce collective agreements on issues
.Design and submit proposals for policies and laws that impact sector
.Establish training and education schemes
Workplace Forums
-Only when business employs 100 or more employees
-Employers and employees make joint decisions
-Issues negotiated: Health and safety, Work methods, Retrenchment, Bonuses, Training
CCMA
Commission for Conciliation, Mediation and Arbitration
-Dispute-resolution body
-Funded by NEDLAC
Trade Unions
Group of workers forming an organisation in-order to do collective bargaining with employers/organisations
-Ensure industrial peace
-Address workplace issues
-Ensure fair treatment
Order of Resolution
-Collective bargaining
-Conciliation
-Mediation
-Arbitration
-Strikes
NEDLAC
National Economic Development and Labour Council
-Important for relationships between: Business, Trade Unions, Government, Community Groups
-Dialogue aims to: Make economic decision making more inclusive, and Promote social equity and economic growth
Employment Equity (EE) Act 55 of 1998
Designed to redress the inequalities of the past through Affirmative Action
Positive Implications of EE
-Redresses inequalities of the past
-More diverse workforce with better representation
-More diverse management team
-Emphasis on training for PDI’s
-EE compliant businesses more likely to negotiate contracts with the government
Negative Implications of EE
-Additional workload from submitting EE reports
-More challenging recruitment process, candidates must meet EE requirements
-Limits non-designated groups’ opportunities
BBBEE (5 Elements)
-Ownership
-Management Control
-Skills Development
-Enterprise Development
-Socio-Economic Development
Positives BBBEE
-Promotes Human Rights of the South African Constitution
-Improve Black Middleclass
-Opportunities to be part of economy for black people
-Increased skills development
Negatives BBBEE
-BBBEE has not fully addressed lack of skills
-Window Dressing
Skills Development Act 97 of 1998 (Aim)
-Increase employment opportunities for PDI’s
-Improve skills and qualifications
-Boost vocational learning
-Promote entrepreneurship
-Improve employment opportunities
-Encourage employees to improve their skill levels
Positives (SDA)
-More training opportunities
-Employment Opportunities
-Better business performance
-Skills Development Levies (SDLs) fund training
-20% of SDL can be claimed back through submitting a WSP and ATR
Negatives (SDA)
-SDL is an additional expense
-SETAs not effective- money not being used
-80% of SDL (discretionary grants) can only be claimed after meeting strict requirements
-Employer must give employees time off for training
-If employee leaves business, training is wasted
-Contravention of the act can result in fines
Basic Conditions of Employment Act 75 of 1997 (BCEA)
-Ensure employees are treated fairly
-Promote economic development
Issues Covered (BCEA)
-Working hours: 45 hours or less/weak
-Overtime: 1.5 X salary
-Deductions: Employer may not deduct from employee’s remuneration
-Public holidays: 2X salary
-Annual leave: 21 consecutive days
-Sick leave: 30 days/3 years
-Maternity leave: 4 consecutive months (does not have to be paid leave) (can claim from UIF)
-Family responsibility leave: 3 days paid leave
-Notice periods:1 week <1 moth. 2 weeks <1 year.
1 month >1 year
-Makes provisions for Employment Conditions Commissions to be established
Positives (BCEA)
-Protects vulnerable employees from exploitation
-Sets minimum wages
-Prevents child labour
-Protects employees against unreasonable hours
-Ensures employees are treated fairly
Negatives (BCEA)
-Employee cannot work more than 45 hours if they want to earn more
-Businesses cannot afford to employ workers at the minimum wage
