This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.
LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - AUGUST 2021
B-BBEE:
Many employers use service providers to conduct training for youth employees in order to claim B-BBEE points as well as grants.
SARS issued Binding Private Ruling 367 (BPR 367) dated 6 July 2021, indicating that students in a proposed training programme are not “employees” as contemplated in the Employment Tax Incentive Act 26 of 2013, and that the potential employer will not be entitled to claim an Employment Tax Incentive (ETI) in respect of any of them.
In summary, the ETI is an incentive aimed at encouraging employers to hire young work-seekers. Employers who participate in this programme will reduce their cost of hiring young people by reducing the amount of Pay-As-You-Earn (PAYE) that they must pay over to SARS, while leaving the wage or salary received by the employee unaffected. An employer can only claim the ETI for SA citizens between the ages of 18 and 29 years. These individuals must be unemployed, not a domestic worker, not a connected person to the employer, must be employed by the employer and must be paid the minimum wage applicable to the employer or, in the absence of a minimum wage, an amount not less than R2 000. The maximum amount of remuneration received by a qualifying employee is R6 000. A qualifying employee must be employed for 160 hours a month before the employer can claim the full benefit. Should a qualifying employee work less than 160 hours per month, the remuneration amount must be ‘grossed up’ to 160 hours per month to calculate the value of the ETI. The amount can then be calculated and be ‘grossed down’ in the same ratio. Of importance is the fact that the value of the ETI that an employer can claim depends on the value of the monthly remuneration paid to a qualifying employee.
This Binding Private Ruling is important from a B-BBEE point of view as it links up with the elements on the B-BBEE scorecard, i.e. mainly Skills Development but also Preferential Procurement. Furthermore, the ruling is important as it ensures that false representation of an entity’s contributions towards transformation is avoided.
Employers are advised to exercise caution and vigilance regarding tax schemes that seek to undermine the intention of a specific incentive, because the ‘employer’ will be held responsible for the tax and labour obligations of the students.
POPIA & PAIA:
Protection of Personal Information Act, 2013 (Act No. 4 of 2013):
- A media statement dated 13 July 2021 reminding the public that photographs clearly identifying an individual are regarded as personal information in terms of POPIA, and that distribution of such material is regarded as processing of personal information in terms of the Act. The Act prohibits the distribution of personal information without the consent of the individual identified in the item that is distributed.
- The Regulator implores the public to act within the scope of POPIA regarding the rights of individuals and not to violate or engage in action which violates another person’s rights or the provisions of POPIA by distributing personal information without consent from the data subject.
- On 22 July 2021, the Regulator published the POPIA Complaint Form 5, which can be utilised in terms of section 74 of POPIA to inform the Regulator of any interference with the protection of personal information of a data subject or to submit a complaint to the Regulator regarding the determination of an adjudicator.
Consumer Protection Act, 2008 (Act No. 68 of 2008):
- The National Consumer Commission (NCC) released a statement dated 19 July 2021 indicating that suppliers may not inflate prices of essential items listed under the Consumer and Customer Protection and National Disaster Management Regulations and Directions, issued in terms of Regulation 350 of Government Notice No. 43116 (Regulation 350).
- The Commission received reports of possible food shortages in KwaZulu-Natal and Gauteng due to the public unrest. Regulation 350, read with sections 40 and 48 of the CPA, prohibits suppliers from profiteering during a period of National Disaster. The goods and services relate to basic food and consumer items, emergency products and services, medical and hygiene supplies, as well as emergency clean-up products and services. Should these Regulations be contravened by a supplier or person, they could be fined up to R1 million, a fine of up to 10% of a firm’s annual turnover, or imprisonment for a period not exceeding 12 months.
- The NCC furthermore encourages consumers to monitor the market and report any suspected unfair increases in the price of these goods and services.
SERR Synergy’s Information Compliance (POPI and PAIA) Department can assist businesses or entities with a full range of Information Compliance service offerings, including the compilation of Data and Information Protection Reports, drafting of the required Data Privacy policies, updating agreements to deal with data considerations, advice on internal data-handling requirements, or an understanding of the specific data-privacy roles that businesses or entities are required to fulfil.
LABOUR RELATIONS:
Bargaining Councils:
The Director of Collective Bargaining, Stephen Rathai, in Government Gazette No. 44822 dated 9 July 2021, extended the period of operation of the Main Collective Agreement of the Bargaining Council for the Furniture Manufacturing Industry KwaZulu Natal to 31 December 2021.
Latest caselaw:
NUMSA obo Dhludhlu and Others v Marley Pipe Systems SA (Pty) Ltd (JA33/2020) [2021] ZALAC 13 (23 June 2021):
Marley Pipe Systems SA (Pty) Ltd (the Company) conducts business within the plastics industry, under the jurisdiction of the Metal and Engineering Industries Bargaining Council (MEIBC). After concluding a wage agreement in the Plastics Negotiating Forum (PNF) to which NUMSA was not party, the agreement was communicated to the NUMSA shop stewards and all employees on 13 July 2021. NUMSA-member employees were involved in an unprotected strike on 14 July 2017. They left their workstations carrying posters, and issued written demands, specifically for the removal of Mr Ferdi Steffens, the Company’s head of human resources. Mr Steffens was surrounded by the employees and seriously assaulted. The Company contacted the police and issued the employees with an ultimatum to leave the company premises, after which the employees left the premises at approximately 12h00. Disciplinary action followed in the form of disciplinary hearings conducted by an independent chairperson against 148 employees, all of whom were dismissed.
The Labour Court found that the employees and a NUMSA shop steward, Mr Mokoena, who were identified as being on site, had acted with common purpose in assaulting Mr Steffens in what was a “mob attack” by associating themselves with events on the day and their dismissal was found to be fair. The Court also upheld the Company’s counterclaim for damages under the Labour Relations Act against NUMSA and 148 appellants, jointly and severally, to the amount of R829 835,00 in just and equitable compensation.
On appeal at the Labour Appeal Court (LAC), the remaining 41 employees in respect of whom the appeal was pursued, were not identified through direct evidence as having been part of the striking group. The Company indicated that the 41 employees had been placed on the scene of the assault through clocking records, as they were absent from their workstations, as well as video footage showing that the entire group moved to the offices where the assault took place. The LAC held that the conclusion drawn that all employees were involved in or associated themselves with the assault was the most probable and plausible. The LAC dismissed the appellant’s appeal.
Reddy v SARS [2021] EQ19443-21 (EC) (12 July 2021)
SARS (South African Revenue Service) employed Mr Reddy as an Inbound Contact Centre Agent from 12 January 2015. Due to an incident that occurred in the workplace, Mr Reddy was referred to the SARS HRM where it was recommended that Mr Reddy be placed on Ill Health Retirement Benefits.
As a result of this recommendation, Mr Reddy was informed in writing by SARS that he had been placed on early retirement due to ill health and medically boarded. After Mr Reddy’s internal appeal was unsuccessful, he approached the CCMA referring a claim for discrimination. He was informed that the case had to be referred to the Labour Court for arbitration. No clarity was provided to the Equality Court on the outcome or status of the case at the Labour Court. However, seeking relief, Mr Reddy approached the Equality Court.
The Equality Court held that “Mr Reddy’s complaint stems from being placed on early retirement due to ill health. This he contends was done because of his disability. The genesis of his complaint therefore is SARS’ policy relating to placement of SARS’ employees on early retirement due to ill health. What however does not come out from Mr. Reddy’s complaint is that such policy is unfairly discriminatory, in that it differentiates between people. In essence, the sum total of Mr. Reddy’s complaint is that he has not been fairly treated during the process of his placement on early retirement due to ill health, and as such was unfairly made to go on early retirement. This is not a case for unfair discrimination that is envisaged in the Equality Act that ought to be entertained by this court. A remedy for Mr. Reddy in such circumstances, if properly formulated, lies with the CCMA or Labour Court”. In conclusion, the Equality Court dismissed Mr Reddy’s complaint.
CCMA and Bargaining Council caselaw:
Mehlala / Cybersmart (Pty) Ltd (2021) 30 CCMA
The applicant (hereafter referred to as Mehlala) was employed at Cybersmart (hereafter referred to as ‘the employer’) from 1 October 2019 as Technical Support Agent. She was issued with a final written warning on 19 January 2021 for being absent from work without leave for two days. She then referred the matter to the CCMA, citing unfair labour practice. The employer submitted that Mehlala had been absent without leave and insubordinate by disobeying an instruction to return to work.
The Commissioner held that the following information was common cause, namely that on 20 January 2021 Mehlala went for a Covid19 test and was advised to self-isolate from 20 to 29 January 2021 and to return to work on 1 February 2021. The Covid-19 test results indicated on 21 January 2021 that she tested positive. She went to the clinic on 29 January 2021 where she obtained a letter indicating that she was fit for duty; however, as she still did not feel well, she obtained a second letter which referred to the completion of the 14-day isolation period by means of an amendment with no medical official’s initial. The company supervisor instructed her to return to work on 1 February 2021. The second medical letter, which was amended, was initialled by the required medical official on 3 February 2021. Mehlala returned to work on 4 February still showing Covid-19 symptoms and on 5 February 2021 was booked off for 5 days on sick leave by a medical practitioner.
The Commissioner noted that the applicable regulation required persons who tested positive for Covid19 to self-isolate for at least 10 days or longer if they displayed symptoms. The Commissioner also found that the instruction to report for duty was unlawful. Although the discrepancies in the letters could be indicative of suspicious conduct, it should have been corroborated more diligently before implementing disciplinary action against an employee for absenteeism or desertion. The Commissioner held that the final written warning was unfair and was set aside.
Temporary Employee / Employer Relief Scheme (TERS):
The Department of Employment and Labour, in a (C-19 TERS) Direction, 2021 dated 15 July 2021, indicated that the Unemployment Insurance Fund (UIF) will be implementing a third extension of the Covid-19 TERS benefit. The UIF will open the system for applications from 19 July 2021 and commence payments from 26 July 2021, with the following important changes to the previous TERS Directions applicable to the following employees:
- Payments will be made directly to the bank accounts of employees and not via the employer; however, employers must claim on the employees’ behalf;
- Employees who have not been able to work since 16 March 2021 due to Level 1, 2 and 3 restrictions which prohibited gatherings of a certain number of persons, such as in the entertainment industry;
- Employees who were and/or are still impacted due to the Level 4 restrictions which commenced on 28 June 2021; and
- Employees who have not been able to work during the period because they are over the age of 60 or have co-morbidities, as well as those who have had to isolate or go into quarantine.
The period the Direction covers terminates on 25 July 2021.
The South African Law Reform Commission (SALRC):
The SALRC published a discussion paper regarding maternity and parental benefits for self-employed workers in the informal economy. The SALRC indicates that there is a gap in the State’s social protection system which excludes self-employed workers in the informal economy from receiving maternity and parental benefits.
The SALRC provides recommendations which include, but are not restricted to, amendments to the definition of an employee in terms of the Basic Conditions of Employment Act, 1997; the Unemployment Insurance Act, 2001; the Unemployment Insurance Contributions Act, 2002 and parental benefits, so as to include self-employed workers in the informal economy.
The SALRC invites interested parties, stakeholders and members of the public to submit their comments and input on or before 29 October 2021.
The SERR Synergy Labour Department can guide and assist businesses with the processes and procedures to ensure compliance with labour legislation and to mitigate risks relating to employment issues to which businesses are exposed. The above documentation can be requested from the SERR Synergy Labour Department.
OCCUPATIONAL HEALTH AND SAFETY
Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993):
The Minister of Employment and Labour, Thulas Nxesi, in Government Gazette No. 44822 dated 9 July 2021, invited affected and interested parties or persons to submit comments on the Draft Pressure Equipment Regulations: 2021 in writing within 90 days from the publication of the gazette to the Director-General of the Department of Employment and Labour Laboria House.
Disaster Management Act, 2002 (Act No. 57 of 2002):
The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, in Government Notice No. 44839 dated 12 July 2021, extended the national state of disaster from 15 July 2021 to 15 August 2021.
The Minister of Cooperative Governance and Traditional Affairs, in Government Gazette No. 44895 dated 25 July 2021, determined that Adjusted Alert Level 3 will apply nationally from 26 July 2021.
COVID-19 VACCINES:
Covid-19 Employment Practical Guidelines for Employers:
President Cyril Ramaphosa announced on 25 July 2021 that persons between the ages of 18 and 34 will be allowed to be vaccinated from 1 of September 2021.
In order to implement a mandatory Covid-19 vaccine policy in the workplace, an employer must follow the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces as published by the Minister of Employment and Labour in a Government Gazette No. 44700 dated 11 June 2021.
Employers must have a valid and clear reason for implementing a mandatory Covid-19 vaccine policy in the workplace, which must also be fair and justified.
SERR Synergy has developed a Covid-19 Mandatory Vaccine Workplace Policy to provide assistance to employers in addressing aspects such as the application of and parties excluded from the directive; obligations of the employer and employee; employees suffering from side effects of the Covid-19 vaccine; confidentiality aspects; and disciplinary measures to be taken should an employee refuse to receive the mandatory Covid-19 vaccine.
The SERR Synergy Labour Department can assist businesses to comply with the relevant legislation. The above policy and directive can be requested from the SERR Synergy Labour Department.
Compiled by:
SERR Synergy Research Division
Lané Boshoff – research@serr.co.za