Week beginning Sunday, 18 May 1997 Back to BT Labour Guides main page

THIS week John Botha, Human Resources Manager of Quest Personnel, examines the expectations of women in the workplace. Rael Solomon and The Labour Consultancy, deal with problems relating to the transfer of contracts of employment. Rael Solomon comments on procedures and the LRA. Don't forget to read our letters page which contains practical advice in response to browsers' questions. WOMEN IN THE WORKPLACE The Constitutional Bill of Rights, the Labour Relations Act (1995), the Proposed Basic Conditions of Employment Bill and pending legislation all have a fundamental common purpose: TO ENSURE THAT THE RIGHTS AND EMPLOYMENT CONDITIONS OF HISTORICALLY DISADVANTAGED GROUPS ARE GIVEN PREFERENTIAL TREATMENT. For the purposes of this discussion we focus on the woman in the workplace from two dimensions: gender discrimination; and temporary female employees It is common cause that for all classes of employee other than casual employees, the provisions pertaining to fair discrimination, unfair dismissal and unfair labour practices apply. Hence, just giving statutory notification to the secretary (or domestic) may be legal but not fair. The Labour Court or an Arbitrator may be requested to adjudicate fairness of termination and practice. These proposals are aimed at introducing some flexibility in the area of compulsory maternity leave. But at the same time they also clearly create job security for pregnant employees. Read together with the relevant provisions of the LRA, ESA will ensure that employers may not dismiss women employees simply for the reasons of pregnancy and child birth. 1. WOMEN, AFFIRMATION AND LABOUR LEGISLATION 1.1 AFFIRMATIVE ACTION AA often appears to relate only to racial affirmation, to the detriment of gender affirmation. The legislation is expected to improve the rights of women in the work place. The temporary worker is also given job security and similar rights and obligations only previously enjoyed by permanent employees. The situation of the domestic worker has in particular been radically improved and the days when an employer could simply just dismiss her domestic at her least whim are now gone. 1.2 EQUALITY OF OPPORTUNITY IN EMPLOYMENT Statistics relating to secretarial positions highlight the need for affirmation action. RACIAL REPRESENTIVITY Blacks are the most under-represented race, whilst Whites are the most over-represented. The Coloured population is also under-represented GENDER REPRESENTIVITY Black men are most under-represented, whilst White women are most over-represented (stereotypes about what sex secretaries should be are grossly accentuated here - possibly because we see that most of management has been occupied by males. In each race category, the woman represents the larger portion of occupancy in the job.

EARNINGS DISPARITIES

• 56% of White men in secretarial positions earned more than R2500 in 1996, compared with only 12% African women
• In each race category we again see how the women in the workplace earns less money than does the male for the same work done

PROPOSALS
A woman employed in night work or work which may be harmful to her or her child is entitled to suitable alternative work without loss of benefit during pregnancy and a year after the birth of her child.

These proposals are aimed at introducing some flexibility in the area for compulsory maternity leave. But at the same time they also clearly create job security for pregnant employees. Read together with the relevant provisions of the LRA, ESA will ensure that employers may not dismiss women employees simply for the reasons of pregnancy and child birth.

DOES A WOMEN RETURNING FROM MATERNITY LEAVE HAVE THE RIGHT TO HER SAME PREVIOUS JOB?
Yes. The Green Paper specifically talks about "job" security and does not cater for employers guaranteeing a return to a "Similar position" or any other such terminology.

IS PATERNITY LEAVE CATERED FOR?
Yes. The proposal is that every employee with more than one year's service is entitled to "three days" paid paternity or child care leave during the year of the birth of the child.

However, this leave will not accrue if it is not used in any year and the employer may require reasonable proof of paternity before granting the leave.

2. LEGISLATIVE PROVISIONS
A comprehensive knowledge of legislative rights and obligations is essential for the woman in the workplace to ensure that she is treated with due regard for equity.) To see the exact sections and clauses of the various pieces of legislation, PLEASE CLICK HERE.

The LRA and BCEA give the questions of pregnancy and maternity their full attention.

An employee is deemed to have been unfairly dismissed if the employer refused to allow her to resume work if she took maternity leave in terms of the Act.

Similarly, an employer is deemed to have been automatically unfair if an employee is dismissed for reasons of pregnancy. An employer can be penalised up to two years remuneration in compensation.

This also relates to an applicant for a position who is not considered because of pregnancy.

3. FAMILY RESPONSIBILITY LEAVE
An employee who works for four or more days per week for one employer is entitled to 3 days paid leave, during the work cycle, when the employee's child is born or is sick. This also applies in the event of a death of an immediate family member.

4. CONCLUSION
The rights of the woman in the workplace are now afforded the status needed to restitute rights previously ignored. The industrial / labour court will view proven offenses of sexual / gender discrimination in a very serious light.

Recent sexual harassment decisions have resulted in a payout of over R730 000 in costs in one case alone.

TRANSFER OF CONTRACTS OF EMPLOYMENT

How employees are afected when their employer's undertaking/businnes has been sold to a third party as a going concern.

For employees the sale of the company which is employing them can be traumatic. Clause 197 or the Labour Relations Act 66 of 1995 addresses the situation when there has been transfer of ownership of an ongoing undertaking.

1. The contract of employment cannnot be transferred from one employer to another without the employees' consent
   1. a)unless the business is wholly or partly sold as a going concern
   2. b)where the original employers is insolvent or related issues are involved.
2. (2) The new employer must accept with the old that all the rights and obligations enjoyed by each employee with the old employer are therefore not affected by the transfer of ownership

PROCEDURES AND THE LRA

Rael Solomon examines the issue of procedural compliance.

COSATU's planned strike for 12 May 1997 was ruled unlawful by the Labour Appeals Court, presided over by Justice John Myburgh. Despite a dissenting opinion from Judge Chris Nicholson, the Court found that Cosatu had failed to comply with procedures to be followed in terms of Section 77(1) of the LRA.

If the strike had been executed, employees would have been 'unprotected' in terms of the Act and subject to disciplinary action by employers.

The LRA goes further than laws and provisions protecting the rights and obligations of employees and employers. It includes procedures that have to be complied with.

Analysis of the arbitrations and conciliations conducted by the CCMA since its inception in November 1996, reveals that employers are being penalised extensively for ignoring statutory procedures. Irrespective of whether you are Cosatu, Business South Africa or the employer of a domestic worker, bypassing the set procedures will produce the same result.

Whilst some criticise the legalistic and technical aspects that have become so important, the Act and its control mechanisms are exceptionally efficient at levelling the playing fields.

The procedures to be followed when taking action are clearly outlined in the LRA and give both employers and employees an opportunity to reflect on the action they are about to set in motion.

The CCMA has been severely criticised in the print media, apparently in sympathy with vested interests wanting to short-circuit the checks and balances for their own convenience. Where this happens, it undermines a negotiated framework which balances a number of interests in society. Any attempts to operate outside of the Act merely contributes to the criminal anarchy prevailing in South Africa.