This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.

POPIA & PAIA
TRAINING AND SKILLS PROGRAMMES

Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) (PAIA) and Protection of Personal Information Act, 2013 (Act No. 4 of 2013) (POPIA):

The Department of Justice and Constitutional Development in Government Gazette No. 45249 dated 30 September 2021, published Form D making available a description of category of records that are automatically available in terms of section 15(1)(a) of PAIA.
The Department of Justice and Constitutional Development, in Government Gazette No. 45306 dated 12 October 2021, stated that in terms of the provisions of section 61(2) of POPIA, the Information Regulator gives notice that the Regulator is in receipt of a code of conduct from the Credit Bureau Association (CBA) which deals with how personal information will be processed in the credit sector. The CBA’s Code of Conduct: Lawful Processing of Personal Information in Credit Sector was published by the Information Regulator on 15 October 2021.

The Information Regulator published the following guides, notices and forms during October 2021:

The Information Regulator released a Guide on How to Use PAIA. The purpose of this guide is to provide information that is needed by any person who wishes to exercise any right contemplated in terms of PAIA and POPI. This guide will specifically assist a person, also referred to as a “data subject”, to access his/her personal information in terms of section 23 of POPIA.
The Information Regulator also published Form 20 which can be used to request an Internal Review in accordance with the rules of procedure relating to the manner in which a complaint must be submitted to and dealt with by the Information Regulator.
The Information Regulator (Regulator), under section 113(3)(c) of POPIA, invited interested parties to submit written comments on or before 15 November 2021, on the proposed draft regulations to amend the regulations issued under section 112(2) of POPIA as published in Government Gazette No. 42110 on 14 December 2018.

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The Information Regulator issued the following media statements during October 2021:

On 14 October 2021, the Information Regulator reminded all political parties to ensure the lawful processing of voters’ personal information, as prescribed in POPIA, and indicated that they could use the Regulator’s Guidance Notes on the processing of a voter’s personal information for this purpose.
On 18 October 2021, the Information Regulator announced its new email addresses for service requests and enquiries. Its email system currently operates under a new domain to ensure accessibility for the public and stakeholders.
On 27 October 2021, the Information Regulator expressed its shock regarding the continued compromise of Experian data in the personal information of people whose data had been part of the Experian data breach, and which had been placed on a public domain using a messaging application.

SERR Synergy’s Information Compliance Department can assist businesses or entities with a full range of Information Compliance (POPI and PAIA) service offerings, including the compilation of Data and Information Protection Reports, drafting of the required Data Privacy policies, updating of 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.

The Department of Education, in Government Gazette No. 45275 dated 8 October 2021, indicated that the Council for Quality Assurance in General and Further Education and Training (Umalusi) had developed the Policy and Criteria for the development, registration and publication of qualifications for the General, Further Education and Training Qualifications Sub-Framework which were subsequently published for implementation by stakeholders in the education and training sector.
The Department of Higher Education, in Government Gazette No. 45352 dated 22 October 2021, published the revised National Norms and Standards for Funding Technical and Vocational Education and Training Colleges (NNSF – TVET Colleges) in accordance with section 23 of the Continuing Education and Training (CET) Act, 2006 (Act No. 16 of 2006) as set out in the Schedule. The implementation of the funding norms will be effective from 21 April 2021.

Some companies are still uncertain about the current Seta benefits, especially in comparison to Broad-Based Black Economic Empowerment (B-BBEE) benefits. Seta benefits and B-BBEE recognition are two distinct concepts, but they also largely overlap. Click here for an explanatory article where we distinguished between the current Seta benefits and B-BBEE recognition in an attempt to identify the differences and overlapping areas between the two areas in which accredited training is applied.

SERR Synergy offers customised and strategic skills development solutions specifically designed to meet the particular needs of our clients and their specific industry. Our training options include mandatory training, accredited and nonaccredited training courses. Please contact us to find out more about our Skills development and training options.

Latest amended legislation:

The Private Security Industry Regulation Amendment Act, 2014 (Act No. 18 of 2014), in Government Gazette No. 45295 dated 8 October 2021, contains notable amendments to the Act in that it introduces a 51% South African ownership requirement in terms of section 20(c).
The Act further provides that the Minister of Police may take the security interests of the Republic into account and may prescribe per regulation a different percentage of ownership and control in respect of different categories of the security business in terms of section 20(2)(2A). The Amendment Act will come into operation on a date determined by the President by proclamation in the Government Gazette.

Department of Employment and Labour:

The Registrar of Labour Relations, Lehlohonolo Molefe, in Government Gazette No. 45268 dated 8 October 2021, announced that the Municipal Employees & Civil Servants Union (MECSU) (LR 2/6/2/3187) had been registered as a trade union effective from 29 September 2021 in terms of section 109(2) of the Labour Relations Act, 1995 (Act No. 66 of 1995).
The Registrar of Labour Relations, in Government Gazette No. 45328 dated 15 October 2021, announced that the Liberated Workers Association of South Africa (LIWASA) (LR 2/6/2/3190) had been registered as a trade union effective from 29 September 2021 in terms of section 109(2) of the Labour Relations Act, 1995 (Act No. 66 of 1995).
The Department of Employment and Labour published the latest registered and cancelled bargaining councils, trade unions and federations for 2021:

o   Cancelled Employer Organisations
o   Cancelled Trade Unions
o   Federations of Employer Organisations
o   Federations of Trade Unions
o   Registered Bargaining Councils
o   Registered Employer Organisations
o   Registered Trade Unions.

Bargaining Councils:

The Department of Employment and Labour, in Government Gazette No. 45275 dated 8 October 2021, published a correction notice regarding Government Notice No. R. 220 appearing in Government Gazette No. 44289 of 18 March 2021, with reference to clause (ix)D and clause (2)(b)(ii) for the Bargaining Council of The Motor Industry – MIBCO: Extension to Non-Parties of The Main Collective Agreement.
The Department of Employment and Labour, in Government Gazette No. 45328 dated 15 October 2021, extended the period of operation of the Main Collective Agreement for the Furniture Manufacturing Industry KwaZulu Natal until 30 June 2023.
The Department of Employment and Labour, in Government Gazette No. 45384 dated 25 October 2021, extended the operation of the Main Collective Agreement of the Laundry, Cleaning and Dyeing Industry KwaZulu Natal for an indefinite period.

Latest caselaw:

Fundiswa Mdunjeni-Ncula v MEC, Department of Health and another Case no: PA10/2019 (delivered 21 September 2021) (Not Reportable)

This matter deals with the scope of section 6 of the Employment Equity, 1998 (Act No. 55 of 1998) (‘EEA’) and the evidence required to commence its application. In this appeal, the appellant contends that she was subject to unfair discrimination on the basis of gender in that she was paid less than three of her male co-workers for doing the same or similar work. The appellant’s case had to be established on the basis that the differentiation between her salary and that of the three male employees amounted to discrimination based on her sex/gender.

The Labour Appeal Court (LAC) did not support the appellant’s argument because one of the male employees referred to by the appellant to substantiate her claim, had never been in the employment of the Department; therefore, the argument was found to be futile. In the second case cited by the appellant to support her argument, she referred to a fellow male employee who indeed received a much higher salary than the appellant. However, this anomaly was revised and corrected by the employer; therefore, the Court held that it was not fruitful to argue that a revised salary offer, which was unlawful and subsequently corrected, can be used as a basis to predicate a case of discrimination on the grounds of gender. The final example case submitted in support of the appellant’s argument illustrated that the fellow male employee had 13 years’ work experience with the Department and had been in the employment of the State since 1983, and that he had also served as a legal administrative officer since 2003.
The LAC held that none of the cases submitted in support of the appellant’s argument portrayed the basis that the differentiation between her salary and that of the three other employees amounted to discrimination based on her sex/gender.

Booi v Amathole District Municipality and Others [2021] ZACC 36

The Constitutional Court was faced with the question of “whether a court or arbitrator is entitled, in terms of section 193(2)(b) of the Labour Relations, 1995 (Act No. 66 of 1995) (LRA), to consider whether a continued employment relationship would be intolerable, when considering the remedy of reinstatement?”

In this matter, Mr Booi was employed as senior manager of municipal health services at the Amathole District Municipality (Municipality). Mr Booi received a charge sheet with allegations of insubordination, gross dishonesty, gross negligence, and misconduct which damaged the reputation of the Municipality. After conducting the disciplinary hearing, he was found guilty, and his employment was terminated in December 2015. Mr Booi was successful in the arbitration proceedings and was reinstated retrospectively. In a last attempt, the Municipality held that the trust relationship between Mr Booi and his supervisor had been broken down irrevocably and that the award of reinstatement would pose an operational risk. The arbitrator held that Mr Booi was found innocent of the charges and that the broken trust relationship argument was based on the guilty finding result of the disciplinary hearing and was not sufficient grounds for the arbitrator to come to an alternative award.

The Municipality approached the Labour Court in 2017 where the arbitrator’s finding was upheld; however, the Labour Court set aside the retrospective reinstatement monetary amount and replaced it with an amount equal to the back-pay of eight months’ remuneration. Displeased with the outcome, Mr Booi sought leave from the Labour Court to appeal to the Labour Appeal Court (LAC) accompanied by a condonation application. Upon Mr Booi’s condonation application being refused, he referred the matter directly to the LAC in order to appeal the Labour Court judgement.

The matter finally ended up in the Constitutional Court which held that it would be incongruous with the values of the South African Constitution where an employee is unfairly dismissed and proven innocent, but the employer, in a final attempt, submits intolerability of a continued employment relationship to avoid reinstatement of the dismissed employee. The Municipality was ordered to reinstate Mr Booi on no less favourable terms than prior to his dismissal, and a calculated back-payment sum in accordance with the monies already received, was awarded.

Covid-19 Employment Practical Guidelines for Employers:

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 Government Gazette No. 44700 dated 11 June 2021.

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 be vaccinated in instances where a mandatory Covid-19 vaccine policy is legitimately implemented.

Compensation for Covid-19 vaccination side-effects:

The Compensation Commissioner, Vuyo Mafata, in Government Gazette No. 45356 dated 22 October 2021, published a notice on compensation for Covid-19 vaccination side-effects in terms of section 6A(b) of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), stipulating that the Compensation Fund will cover employees–

for injuries, illness or death as a result of receiving a Covid-19 vaccine;
only where an employee is required by the employer to receive vaccination as an inherent requirement of employment or where vaccination is required based on the OHS risk assessment conducted by the employer;
only if the employee was vaccinated with SAHPRA-approved Covid-19 vaccine;
provided that the chronological sequence between the vaccine inoculation and the development of symptoms and clinical signs is submitted;
only where the employee shows symptoms and clinical signs that are generally recognised as side-effects of the Covid-19 vaccine; and
provided that additional tests may be required to assess the presence of abnormalities of any organ affected.

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