BUSINESS EDGE

EMPLOYMENT EQUITY AMENDMENT ACT (EEAA) (ACT NO. 4 OF 2022)

President Ramaphosa has signed the Employment Equity Amendment Act (EEAA) into law but is yet to determine the effective date.

The proposed legislation will empower the Minister of Employment and Labour to determine numerical targets for each sector to ensure the equitable representation of suitably qualified people from designated groups at all occupational levels in the workforce. It also seeks to enhance the administration of the Act, including the implementation of section 53 which allows for the Minister to issue a certificate confirming an employer’s compliance with Chapter II, or Chapters II and III in relation to the conclusion of State Contracts. 

Only once the commencement date has been established will the Minister of Employment and Labour be able to set employment equity targets for economic sectors, as well as regions where transformation is lagging.

In the meantime, until the President has proclaimed the commencement date, the status quo will be maintained.

B-BBEE OWNERSHIP

TRUST PROPERTY CONTROL ACT, 1988 (ACT NO. 57 OF 1988)

• The Minister of Justice and Correctional Services, in Government Gazette No. 48351 dated 31 March 2023, published the amendments to the Regulations of the Trust Property Control Act, 1988 (Act No. 57 of 1988) effective from 1 April 2023. The amendments deal with the ‘Establishment and maintenance of public register of persons disqualified from serving as trustees; Recording of details of accountable institutions by trustee; Beneficial ownership information to be recorded by trustee; The Master’s register on beneficial ownership of trust and lastly, Access to information contained in beneficial ownership register’.
• President Cyril Ramaphosa determined in Government Gazette No. 48351 dated 31 March 2023, under section 66 of the General Laws in the Anti-Money Laundering and Combating Terrorism Financing Amendment Act, 2022 (Act No. 22 of 2022), that certain provisions in the Trust Property Control Act, 1988 (Act No. 57 of 1988) are effective as of 1 April 2023.

SERR Synergy has sent an informative communication to its BEE clients delineating the effects and practical aspects of the amendments and inter alia, ensuring that the business interests of our clients are protected. We have also published an insightful article in this regard "HOW DOES THE AMENDMENT TO THE TRUST PROPERTY CONTROL ACT IMPACT BENEFICIAL OWNERSHIP AND B-BBEE TRUSTS?" 

LATEST APEX COURT CASE LAW ON LOCK-OUT AND REPLACEMENT LABOUR

In National Union of Metalworkers of South Africa (NUMSA) v Trenstar (Pty) Ltd (CCT 105/22) [2023] ZACC 11 (18 April 2023), the Constitutional Court re-affirmed the principle of using temporary replacement labour during and after a strike. The background information regarding the case is provided, followed by the judgement.

In terms of section 76(1)(b) of the Labour Relations Act, 1995 (Act No. 66 of 1995) (LRA), an employer is not permitted to employ any person for the purpose of performing the work of an employee who is locked out, unless the lock-out is in response to a strike.

In this case the trade union NUMSA demanded payment of a once-off gratuity to employees from Trenstar (the employer). The ensuing conciliation process failed to settle the dispute between the union and the employer. NUMSA consequently gave the employer notice that its members would embark on a strike from Monday, 26 October 2020, which continued for several weeks. NUMSA’s communication to the employer indicated that the strike was suspended as of 17h00 on Friday, 20 November 2020 and that the employees will commence their duties from Monday 23 November 2020. However, a few hours earlier, but after being notified that the strike would end, the employer gave notice that it would commence a lock-out of employees as from Monday, 23 November 2020 in response to NUMSA’s strike action and, in turn, demanded that the once-off gratuity stipulation be waived.

NUMSA demanded an undertaking that the employer would not use temporary labour during the lock-out as its members had suspended the strike and were available to resume their duties. The lock-out would prevent the employees from resuming their duties and result in their absence from work. 

The employer proceeded with the lock-out and NUMSA consequently launched an urgent application in the Labour Court to interdict the employer from using replacement labour. The Labour Court dismissed the application and found that the lock-out was lawful. As a result of the Labour Court judgement, the employer could use replacement labour. The Labour Appeal Court subsequently dismissed NUMSA’s appeal on the basis of mootness as the strike and lock-out had ended. NUMSA then approached the Constitutional Court.

The apex court took a different view and held that when the employees tender their services after the conclusion of the strike and the employer continues to exclude the employees from the workplace, “[the employer] is no longer responding to the strike but is choosing to use the lock-out offensively in a way that is indistinguishable from the employer who, in the complete absence of a strike, embarks on a lock-out to compel compliance with its demand”. In conclusion, by ending or suspending the strike, the employees effectively tendered their services; thus, the employer’s continuation of the lock-out would not be in response to the strike. 

NUMSA’s appeal succeeded, and the apex court declared that Trenstar (the employer) was not entitled to use replacement labour for the purpose of performing the work of any employees who were locked out after the strike was suspended.

SERR Synergy guides businesses regarding the required processes and procedures in a practical and supportive way to ensure compliance with labour legislation and to minimise the risk to which the business is exposed when employing staff.

LATEST STATUTORY UPDATES

COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES ACT, 1993 (ACT NO. 130 OF 1993)

*hereafter referred to as COIDA

• The Acting Commissioner for the Compensation Fund, in Government Gazette No. 48294 dated 24 March 2023, issued a notice in terms of section 6A of COIDA to inform the pensioners, beneficiaries and recipients who receive a monthly pension from the Compensation Fund (Fund) to submit the ‘confirmation of life’ documents before 31 of May 2023. The submission of these documents will serve as a proof of verification of existence of pensioners, beneficiaries and recipients. 
• This notice affects all non-South African citizens residing in South Africa as well as all South African citizens residing outside South Africa. The individuals affected could be either ‘injury on duty’ (IOD) or ‘occupational disease’ (OD) employees who receive a monthly pension from the Fund because of disability (in terms of section 49(4) of COIDA), the dependents of deceased pensioners, and the guardians receiving pensions on behalf of dependents below the age of 18 years of age (in terms of section 54(1) of COIDA.
• The Acting Commissioner for the Compensation Fund, in Government Gazette No. 48337 dated 30 March 2023, published the CF-A Form for 2022 Return of Earnings (ROE) and the Explanation Note.
• The President assented to the Compensation for Occupational Injuries and Diseases Amendment Act, 2022 (Act No. 10 of 2022) in Government Gazette No. 48431 dated 17 April 2023. The Act has been gazetted but is not yet in force. In the meantime, until the President has proclaimed the commencement date, the status quo will be maintained.

LABOUR RELATIONS ACT, 1995 (ACT NO. 66 OF 1995)

*hereafter referred to as the LRA

The Registrar of Labour Relations cancelled the registration of the following Trade Unions: 

• The Workers Against Regression (WAR) Trade Union with effect from 2 March 2023, in Government Gazette No. 48178 dated 3 March 2023.
• The National Trade Union Congress (NTUC) with effect from 2 March 2023, in Government Gazette No. 48188 dated 10 March 2023.
• The Vision Integrated Workers Union (VIWU) with effect from 16 March 2023, in Government Gazette No. 48223 dated 17 March 2023.
• The Society Development Trade Union with effect from 14 April 2023, in Government Gazette No. 48420 dated 14 April 2023.
• The Union for the Union for the Local Employees in Missions Accredited to South Africa (ULEMASA), in Government Gazette No. 48463 dated 24 April 2023.

The Registrar of Labour Relations has registered the following Employer Organisation and Trade Union: 

• The Association of Private Security Owners of South Africa (TAPSOSA), an employer organisation, with effect from 24 February 2023, in Government Gazette No. 48187 dated 10 March 2023.
• The South African Public Worker’s Trade Union (SAPWTU) with effect from 24 February 2023, in Government Gazette No. 48188 dated 10 March 2023.
• The Director: Collective Bargaining in Government Gazette No. 48221 dated 17 March 2023 extended the period of operation of the Furniture Bargaining Council’s Collective Bargaining Fee Collective Agreement until 30 April 2024.
• The Minister of Employment and Labour, in Government Gazette No. 48279 dated 23 March 2023, extended the National Bargaining Council for the Road Freight and Logistics Industry’s Main Collective Amending Agreement to non-parties until 29 February 2024.
• The Minister of Employment and Labour, in Government Gazette No. 48340 dated 31 March 2023, announced that the Motor Industry Bargaining Council (MIBCO) Collective Agreements have been enacted and published with an extension to non-parties of the Motor Industry, namely, the Administrative Collective Agreement and the Main Collective Agreement.
• The Governing Body of the Commission for Conciliation, Mediation and Arbitration (CCMA), in Government Gazette No. 48445 dated 21 April 2023, published the Rules for the Conduct of Proceedings before the CCMA, with effect from 24 April 2023. As a result of the aforesaid Rules for the Conduct of Proceedings before the CCMA, updated LRA Forms were also introduced and published in Government Gazette No. 48445 dated 21 April 2023.
• The Minister of Employment and Labour, in Government Gazette No. 48483 dated 28 April 2023, published the Public Register in terms of section 41 of the Employment Equity Act, 1998 (Act No. 55 of 1998, listing the designated employers who reported for the 2022 reporting cycle.

RECENTLY PUBLISHED BLOGS

For ease of reference, please find below a summary with links to our recently published blogs: 

• UNDERSTANDING THE BENEFITS OF B-BBEE IN SOUTH AFRICA
• EXPLAINING EMPLOYER REQUIREMENTS FOR ANNUAL RETURN OF EARNINGS IN TERMS OF COIDA
• HOW DOES THE AMENDMENT TO THE TRUST PROPERTY CONTROL ACT IMPACT BENEFICIAL OWNERSHIP AND B-BBEE TRUSTS?
• THOUSANDS SPENT AND STILL NOT REACHING YOUR DESIRED B-BBEE LEVEL: HOW IMPORTANT IS TRANSFORMATION MONITORING?
• CONTINUOUS LOAD SHEDDING: WHEN CAN EMPLOYERS IMPLEMENT SHORTENED WORKING HOURS?
• EMPLOYER GUIDELINES REGARDING FALSE OR FRAUDULENT EMPLOYEE QUALIFICATIONS

Compiled by:

 SERR Synergy Research Division

Lané Boshoff - [email protected]

Link to online copy - BUSINESS EDGE - EDITION 1 (MAY 2023)