of The Labour Consultancy.
This week, we have a bumper edition of labour guides, with three in-depth looks at the new labout legislation and how it affects you.
Labour laws force madams into legal minefield
RAEL SOLOMON discusses the impact of the new labour legislation governing domestic workers
The Labour Relations Act 66 of 1995 presented employers of domestics with many challenges, as can be seen from the number of domestic disputes referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). However, the new Basic Conditions of Employment Act is set to create even more havoc.
On November 11 1996, the new Labour Relations Act rolled back years of inequality, and even tilted the playing field in favour of employees. One of the key clauses gave full recognition to all domestic employees - including part-time gardeners - who are now able to enjoy the full protection of the new dispensation. This step was generally welcomed but it brought in its wake a certain concern on the part of employers who did not know how to handle the developments.
Employee expectations were greatly heightened followed by a flurry of referrals to the CCMA. Many employers had their worst fears confirmed and began to wish for the "good old days". Even hardened businessmen walk in trepidation of the rigid structures of our labour legislation. For the average housewife, being an employer of a domestic worker has turned into a nightmare of rules and procedures.
The Labour Relations Act is, however, fair and the rights bestowed were long overdue. It is correct that domestics should be treated fairly and most employers have accepted that they cannot hire and fire at whim. However, the Basic Conditions of Employment Act is a horse of another colour and will, I believe, do infinite harm to domestic labour relations. All employers have to comply with and implement the provisions of the Act from December 1.
The Basic Condition of Employment Act creates a plethora of rules and regulations and it has been said that it will retard rather than encourage job creation. For small businesses, it is going to be a nightmare and the housewife has become a small business person in her own right. The Act creates rigid prescriptions regarding , leave, overtime, night work, working hours in general, notice pay and contracts.
Employers can no longer unilaterally insist that the domestic work overtime. This must be by agreement and the amount of hours that may be worked is prescribed by the Act. In addition, if you require your domestic to work after 6pm, you must obtain her consent. You must also give your domestic an additional allowance (over and above normal overtime) and provide transport home if she does not live in.
Without a doubt, the employment contract and its enforcement will be the biggest headache for domestic employers. All employers are required to supply their employees with written particulars of employment. Not only this, but the Act specifies 16 different particulars of employment that must be recorded in the contract. The only exception is employees who work for less than 24 hours per month. This may sound simple, but apart from knowing what to include in the contract of employment, it is essential to know how to phrase the contract and what to exclude from it. Your domestics are armed with powerful weapons. The next thing they will be doing is indulging in protected strikes.
As a result, domestic employers must be the equivalent of human resources managers in order to successfully navigate the perilous waters of the Basic Conditions of Employment Act. The net effect of this will be an increasing reticence to take on full-time employees. We can already observe this effect if we look at the increased use of gardening and pool cleaning services. The situation is only likely to get worse as domestic employees suffer the slings and arrows of labour legislation not suited to the domestic environment.
The state should review the Act where it applies to domestics, making it simpler and more flexible. Treating one's employees fairly and correctly is laudable, but imposing legislation more suited to the business environment on the domestic sector may be self defeating, with both parties ending up losers. If job creation is the name of the game, then the Act in its current form will simply not do.
Equity act provides opportunity for companies to become world class
Shaun Pfister and Heather Marshell of Molope Training
Following our Labour Guides artivle of the 25th October 1998, we have had maney enquiries from companies whishing to know more about skills development and basic adult education training. Labour guides asked Shaun Pfister and Heather Marshall of Molope Training, a leading exponent of of skills training, to comment on the training currently being provided to companies by training service providers.
Pfister and Marshall say that many companies are presently looking for ways in which to implement equity. A disturbing fact however, seems to be, that they are focusing mainly on just meeting the criteria instead of using equity as a vehicle to upgrade company performance , as well as providing individuals with a performance development plan and possible career pathing.
Companies are largely unaware of the huge potential that lies within their own staff. The focus in previous years was to provide the necessary technical or job related skills, with little or no emphasis on life or "soft " skills. Skills training were viewed in a light of not adding value to the overall productivity or bottom line. The equity Act and enlightened training companies are addressing these issues.
An essential part of the service that Molope Training provides (which is also in line with the requirements of the Equity Act) is that of evaluation and assessment of all staff. This provides the employee and staff member a basis from which to build skills and personalise a development plan. Training providers should be assisting companies not only in the implementation of the Equity Act but also in the communication strategies relating to it. This will elevate any heightened expectations and calm reservations.
Companies are becoming more aware of the importance of local adaption (whilst still employing world class benchmarking) and the flexibility of the delivery methodology of the training interventions that are chosen to address the needs of the company. When selecting a company, evaluate the methodology more closely than the content. A good training company will have facilitators and course material that is able to be adapted to achieve maximum results, no matter what the cognitive level of the delegates are.
Like the IT industry, the Training and Development Industry is dynamic and provides the key to the shift from mediocrity to a world class corporate culture.
Senior Management's commitment to training and development is vital for South Africa's survival within the global business community.
Exposing the basics!
Grant Ray-Howett of Kanichowsky, Solomon and Charalambous
On the 1st of December 1998, the new Basic Conditions of Employment Act will come into force, pressing already beleaguered employees further into the corner. This Act introduces several significant changes, which promise to make for some interesting times for various categories of employers". Employers. The consensus amongst those on the employer's side (as opposed to organised labour) is that the Act is likely to retard rather than promote job creation. In this article we will look at the features of this acts which are likely to be the most problematic for employers.
1. Ordinary hours of work and overtime provisions
According to the new Act, overtime will be remunerated at a minimum of one and a half time more than one's ordinary wage. Alternatively, you can choose to pay the employee his ordinary wage and grant him 30 minutes off ordinary time on full pay for every overtime hour worked overtime or simply grant the employee 90 minutes off his ordinary time at full pay for every hour worked overtime. According to the old Act, overtime was paid at one and a third times the employee's ordinary remuneration. There is also an increase in pay for Sunday and public holiday work under the new Act. Under the new Act, an employee must be paid double time for public holidays and Sundays, with the exeption that if one ordinarily works on a Sunday, they will only be entitled to one and a half times their remuneration.
These changes in respect of working times will mean that, labour will now become more expensive, since employers will have to pay more overtime and the rate at which overtime will be paid has been increased. These changes will have an especially dramatic effect on small business and the security industry. Traditionally small businesses require longer working hours in order to compensate for their smaller size while in the case of the security industry, the reduction in ordinary hours that can be worked is greater than anywhere else. Hence the fact that organisations representing small business and the security industry both made impassioned pleas to parliament to extend the maximum working hours under the Act.
2. Night work
This section is problematic for two basic reasons. Firstly, it will mean an added cost to the employer, who now has to pay a night worker this so called allowance and will incur additional logistical expenses in making provision for transport. Secondly, the section is so broadly framed that it creates fertile grounds for dispute. This section might have a particularly devastating impact on small business. The emerging business front, who represent small or "micro" businesses argued in it's submission to the working parliamentary committee that there should be no distinction between night and day work and that there should be a complete exemption for small business as they often have to perform their tasks on an urgent basis in order to obtain the orders and sales necessary to compete in the marketplace. This section will also present problems for employers of domestic workers, due to the fact that many domestics are employed to work during night work as defined by the Act. As in the case of business, it will become more expensive as well as less "convenient", for one to employ domestic workers.
3. Maternity and family responsibility leave
Written particulars of employment
This provision will prove to be problematic for micro business and employers of domestics. In these sectors, employers often operate on the basis of an " understanding" due to the fact that a certain degree of flexibility is part of their operational requirements. However, now the employer is required to formalise the arrangement in the form of the written particulars. This will present two problems. Firstly, the small businessman and typical domestic employer have no experience in drafting of contracts of employment. This may sound simple but apart from knowing what to include in the contract of employment it is essential to know how to phrase the contract and what to exclude from it. Secondly, the written particulars will undermine the flexibility of the working relationship that is often the hallmark of employment relationships in small businesses. The written particulars requirement has the potential to create a fertile breeding ground of labour disputes.