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Nikki
13-01-2011, 09:30
Morning all - got this from Dyonne Modlin (my new business partner on the HR side of things). Dyonne was the HR Director of Stallion Security (staff in excess of 12 000), so she really does know what she is doing.

Hi All,

I have decided to send my key clients and selected associates periodic circulars on changes and issues within the labour arena. No need to fear, I will not clog your already hectic inboxes unless the issue is of large significance for your businesses and employment relationships. The areas discussed below certainly meet this requirement and the recent proposals put forward by the government and the `lack of clarity’ has made it necessary for me to deal with these issues.

PROPOSED CHANGES TO LABOUR LAWS

On Friday the 17th of December 2010 the government gazetted a number of proposed changes to the labour laws in South Africa. Whilst these changes are in proposal form, the public have until the 17th of February 2011 to comment.

It is highly likely that these amendments will be implemented this year – in much the same format as what has been proposed.

Basically there are four major amendments which I want to comment on.

CHANGES TO EMPLOYMENT EQUITY LEGISLATION

Simply put, if you employ more than 50 employees, you will be expected to comply with your regional and national demographics in terms of the recruitment of black people, women and the disabled. Failure to do so will result in penalties of between 2% and 10% of your turnover.

DYONNE COMMENT:

Employment Equity is not going to go away. In fact, it’s time to get serious about equity. It starts with submitting your report on time. For electronic reporting the deadline is the 15th of January 2011 – thereafter you cannot submit for another year and are vulnerable to an inspection.

In short, you must be seen to be making progress. There is no getting away from it. Although the legislation is supposed to be interim legislation it is becoming more and more enforced. Either keep your businesses very small (split in various entities and kept under the turnover threshold and employee threshold) or accept that employment equity is likely to have a bigger and bigger impact on your business.

LABOUR BROKING

The proposed amendment does not ban labour broking. Rather it puts in measures to protect employees. Most importantly it now clearly specifies who the employer is - in the past this was always a grey area. Was the employer the labour broker or the client where the employee had been placed? Currently the answer is the Labour Broker but this is about to change.

In terms of the proposals the employer is now clearly identified as the client. Yes, that’s right – You = the client. The employee having a dispute will be able to cite you as the Employer at the CCMA and not the labour broker!

DYONNE COMMENT:

Ask yourself the question: Why do I employ staff from a labour broker? Most of you will answer – because I don’t want the hassle of employing them myself – because of CCMA’s and all that nonsense! THIS NOW FALLS AWAY.

My advice is to seriously reconsider your position – in the future you will be paying a premium for a protection that you will no longer have. Besides it’s the right thing to do – don’t be scared to manage your staff – embrace it as an opportunity to grow your business and your production.

REGULATION OF EMPLOYMENT AGENCIES

This is all about regulation of employment agencies and the creation of a super government department to handle job placements, etc. Not practical – won’t work. However what is interesting is that it is now specifically forbidden to charge a job seeker a placement fee!

DYONNE’S COMMENT:

I am in favour of any piece of legislation that bans exploitation of workers – that preys on the weak and desperate! Bring it on! This will not really affect any of you directly in any event.

The Big One - FIXED TERM CONTRACTS – A THING OF THE PAST?

This is an issue most of you have faced and some of you still face and it will directly impact the way you do business!

In essence the proposed bill talks about security of employment and the fact that the use of fixed term contracts has deprived many employees of their rights to benefits and security of tenure. Simply put, it is going to make it very difficult to justify employing junior staff on a fixed term contract unless its’ for a specific defined project. Note –Junior employees only - Senior employees will be exempt – employ them on Fixed Term contracts as you want.

For many of you this will mean a complete review of your current contracts of employment.

DYONNE COMMENT:

I am not happy about this at all and am certain you all feel the same way. Yes, it is all well and fine that we can still employ Senior staff on fixed term contracts but what about the rest? As one commentator on the Web said - `Now we are going to be stuck with the bastards!’

This is not entirely true – but you are going to have to do things properly ALL the time as your current reliance on the fixed term to replace probabtion or as “the easy out” is not going to stand. Proper references, proper aptitude tests and proper interviews are going to become have to’s instead of nice to haves.

Yes, it’s going to be inconvenient but we are going to have to revert to probation periods with proper reviews which are actually conducted and your performance appraisal systems are going to be more important than ever this year..


DYONNE’S CRYSTAL BALL …………

Well if you made it to the end of this email and you are still reading, here is my insight for the year ahead:

• Retrenchments in January and February – the recession is not over yet!
• Average wage increases of between 5% and 7% this year.
• Companies are going to advise their employees early this year that there will be no bonuses. HINT – If you think you won’t be able to pay bonuses – don’t wait to December to tell them – tell them before July – that’s good HR – they will then have 6 months to get used to the idea.
• Lots of companies are going to panic at the idea of the proposed changes – don’t – it will be at least about 8 months before they will be gazetted into law – be prepared however!
• Senior Managers are going to be feeling the heat more – there is a lot of emphasis on fiduciary duties of Directors. Employees are being encouraged (and rewarded) for telling on their bosses – so beware!
• There are going to some good bargains to had in terms of businesses closing through bad management – be brave, expand, take a risk. It’s in times like these that entrepreneurs are born and the business world is redefined!

Yours in labour law, in laughter and in life.

Have a Happy New Year.



Regards,

Dyonne Modlin
083 327 3965
dyonnemodlin@viljoenconsulting.co.za

Smiley
13-01-2011, 10:04
I want to employ junior staff, give them a chance to find their feet whilst we get a "clean slate" to build on. No previous bad development habits in other words.

HOWEVER ... I do not have the balls to handle all the nitty gritty, nor the time to get into all the details nor the energy to monitor it all to the level that is required by law.

Bottom line ... all these regs and rules are killing opportunities for junior staff for most of us are not big enough to handle it all.

Yet, with all these regulations and laws, the informal sector is not botherred at all by any of it. None of their problems are being dealt with, people are being exploited, and no-one is paying PAYE/SDL/UIF.

Well done ANC, well done! Kill the legal entities who pay for it all whilst you forget about the masses who desperately need your help, who has voted you into power.

Eish, venting over, still do not have the balls to employ a junior for the liabilities are not worth the risk.

AndriesH
13-01-2011, 10:37
Why not speak to Niks. She will either be able to help you directly or suggest a process for you to follow. Maybe she can recommend someone to handle the details for you.

Dieter
13-01-2011, 12:16
Given a choice: Employ someone, or get a machine / system to do the work for me, I would choose the machine / system. Why?

It's not that I want to exploit the employee - but compliance is becoming more and more expensive - either in respect of monies paid to outside consultants to manage the process or in the time 'wasted' in-house trying to remain compliant, rather than remaining focused on the real goal >>> income generation.

No matter which way you cut the mustard, without that income I (and my employees) are in the dudu!

Ergo: Make it harder to comply and I will employ less. Period.

Smiley
13-01-2011, 13:10
Ergo: Make it harder to comply and I will employ less. Period.

Amen!

Vine
13-01-2011, 15:23
My sentiments.

I am seriously considering greener grass somewhere across the fence, not sure where yet, but looking. (It gives a new meaning to go green and off the grid- Jaco :) )

The loser, is not me. I do not have the energy, time, or finances to be in line with the LRA. I want to spend my time fiddling in my shed with new ideas and being creative, not shunting paper work around to make some twit happy, and worrying about being compliant.

Smiley
13-01-2011, 15:50
My sentiments.

I am seriously considering greener grass somewhere across the fence, not sure where yet, but looking. (It gives a new meaning to go green and off the grid- Jaco :) )

The loser, is not me. I do not have the energy, time, or finances to be in line with the LRA. I want to spend my time fiddling in my shed with new ideas and being creative, not shunting paper work around to make some twit happy, and worrying about being compliant.

May the force be with you.

Nikki
13-01-2011, 16:58
Why not speak to Niks. She will either be able to help you directly or suggest a process for you to follow. Maybe she can recommend someone to handle the details for you.

Thank you Andries - yes we do handle the HR departments of small businesses on a retainer type fee. If anyone needs this service pse give either myself or Dyonne a call.

Tim
13-01-2011, 18:22
Ja, all this LRA k*k is just that: a steaming pile of k*k!

It's high time we had a free market system. Willing employer - willing employee.

Maybe then people who actually want to work will be able to find jobs and employers would be more willing to take people on because they could get rid of the garbage.

That would also encourage the average person to better their skills and develop some decent work ethic and, just maybe, a general moral ethic too.

There's altogether waaaay too much entitlement for anyone's good.

Tim

MarkCorke
13-01-2011, 18:30
...
There's altogether waaaay too much entitlement for anyone's good.

TimYip. 300 years of it in various different groups' hands; and just because it has changed hands recently does not make it any better.

The question is: Who amongst us complained when the British called the shots? And when the Afrikaaner was reserving jobs to alleviate the "poor white problem"?

Social engineering sucks. A pity more of our forefathers did not foresee today's problem and make a fuss of it then. Perhaps 300 years of equality would have made for a better South Africa today?

Smiley
13-01-2011, 18:36
Perhaps 300 years of equality would have made for a better South Africa today?

I do not think it would have made any difference.

As Tim said:
Willing employer - willing employee.

Maybe then people who actually want to work will be able to find jobs and employers would be more willing to take people on because they could get rid of the garbage.

That would also encourage the average person to better their skills and develop some decent work ethic and, just maybe, a general moral ethic too.

Vine
13-01-2011, 19:11
Whilst I respect the article written by Dyonne Modlin, and very informative to business owners. She reckons we must take risks and grow, it is very easy to say this from your arm chair when the money used is not yours, but belongs to a corporate company. Any loss is not directly linked to your financial basket.

In the case of us SMEs, when the shit hits the fan, the owner must pull out his wallet and pay the expenses. This is the fundamental difference between corporates and SMEs. I have been there, and let me tell you it hurts for a long time. The recovery process is as hard as walking up a hill with broken legs.

Martinco
14-01-2011, 10:45
Who is seen to be a "Senior" employee and who is a "Junior ?

Smiley
14-01-2011, 11:08
Developers is who I work with.

Junior for me is the one starting out today.
Senior is one who can do a job unsupervised and brings with him/her a new set of skills to the benefit of the business and therefor his/her pocket.

Tim
14-01-2011, 11:20
Perhaps 300 years of equality would have made for a better South Africa today?

I do not think it would have made any difference.
What makes you believe that, Jaco?

I think it would have made a massive difference. I'm not sure exactly what the difference would be and whether it would have been good or bad but I reckon SA would be a very different place today if there'd never been the legislated inequality that we've had.

For one thing, all the labour law and BEE crapola that we sit with today wouldn't be with us.

Tim

Smiley
14-01-2011, 12:43
What makes you believe that, Jaco?

I think it would have made a massive difference. I'm not sure exactly what the difference would be and whether it would have been good or bad but I reckon SA would be a very different place today if there'd never been the legislated inequality that we've had.

Firstly the legislation was wot +-84 years (?) of which we are now +-20 years after that, whereas Mark mentioned 300 years which is a total different story as a whole. Do we blame Jan v Riebeeck for it all, or just the Nats? What about the Voortrekkers? Are they also to blame when Dingaan murderred them. I think if one really starts digging into the history of all the people what made up the population of the southern point of Africa one would most probably have a different perspective.

When do we stop and say: Enough, stop living in the past, learn from it and fix today what you can in order to better tomorrow. When do we say the apartheid is not an excuse anymore? I want to take a bet and say it would be for another 300 years used as an excuse.

Back to the question. Look at the rest of Africa as a continent, the individual countries, America, S. America, Germany, China, Australia and so forth. What comes to mind is that nowhere it is perfect, nowhere there is nirvana and nowhere the ideals are being met, not even close for there will always be a part that bitterly complains, who have or are still being supressed. / opressed / wiped out.




For one thing, all the labour law and BEE crapola that we sit with today wouldn't be with us.

What is today is a reverse of the old days. Whoever is in power would do whatever they can to ensure their party stands to gain the most and it will be so till the day we die. Maybe our childrens children have a chance but then again, it will not change in 300 years.

Nikki
14-01-2011, 14:06
Who is seen to be a "Senior" employee and who is a "Junior ?

Now there's a question and the answer will probably put the cat amongst the pigeons!

MarcL
14-01-2011, 23:57
My sentiments.

I am seriously considering greener grass somewhere across the fence

Start watering your own, much easier.

Vine
15-01-2011, 09:45
Start watering your own, much easier.
Hi Marc,

At some stage or other you still need employees, currently across the fence this is not a problem when you no longer need them.

Nikki
01-02-2011, 10:06
Morning everyone - ok Dyonne has now gone through the whole proposed Act and this is what has come out of it.

If you have any specific questions that you need answering - please address them on this forum and either Dyonne or I will get back to you with (hopefully) a simple solution. :)

Proposed Labour Amendments - pipe dreams or pipelines to efficiency?

By Dyonne Modlin of Viljoen Consulting/Lateral Labour

So, what is all the fuss about?

The proposed labour amendments work on a need to know basis and the reality is that if you are in business you are going to need to know the impact of the four bills published on the 17th December 2010 by the Minister of Labour. These bills, in the form of Labour Relations Amendment Bill, the Basic Conditions of Employment Bill, Employment Equity Bill and the Employment Services Bill are set to be promulgated in February 2011 and will significantly affect the labour arena.

The proposed amendments to the Labour Relations Act primarily address the following areas:
- Fixed Term Contracts: It has been the practice (possibly malpractice) of many employers, (from SMEs to large Corporate concerns) to rely on fixed term contracts to avoid permanently employing staff, which they have either repeatedly renewed or badly administered (failed to renew so that the fixed-term contract runs past its expiry date and creates an expectation of permanency with the fixed term employee; and/or failed to terminate in adherence with the clauses contained therein). The amendments are aimed at stopping this abuse.

- The proposal repeals Section 198 that deals with Temporary Employment Services and as such effectively “outlaws” labour broking or at the very least makes the use of labour brokers moot for employers as a result of the fact that even if they use such services the employer/client will be fully liable in the event of a CCMA referral. This is also emphasized in the proposed changes to the definition of the employee.

- The amendments outline several changes to the CCMA and Labour Court operations, jurisdiction, powers and functioning which are presumably aimed at improving the effectiveness and speed with which CCMA resolves and finalises disputes referred to it. An interesting addition with similar objectives is that Senior Employees (The Minister of Labour will gazette a salary amount defining these employees) will be excluded from referring disputes to the CCMA and are deemed to be able to afford the cost of judicial process.

- Where matters of public interest are concerned the CCMA gleans extended powers to intervene in industrial action with or without the consent of the parties to the dispute.

- Agreements to private arbitrations/dispute resolution are basically unenforceable if the employee is required to pay any part of the costs or if the arbitrator is not independent of the employer party as CCMA can assume jurisdiction.
The Bill amending the Basic Condition of Employment Act incorporates proposals changing the power of the Minister pertaining to organizational rights issues (particularly access to employers premises), which may well mean rapid unionization in sectors or Companies which were previously not organized.

In this Bill the Minister also has the power to set increases on actual rather than minimum wages for sectors which are governed by Sectoral Determinations which is bound to have a significant impact on relevant industry negotiations this year.

The Bill also empowers the Minister to determine the conditions of labour tenants and aligns the BCEA with child labour legislation.

Non-compliant employers have reason to panic once the Bill is promulgated as contraventions of certain provisions in monitoring and enforcement of the Act are criminalised which will enhance the effectiveness of the inspectorate, heavier penalties for non-compliance are also proposed.

The proposed amendment to the Employment Equity Act focus heavily on “same work, same pay” issues and aligns to the International Labour Organisation's conventions.

Enforcement mechanisms for non-compliance are also strengthened in this arena and non-compliant Employers may want to advance from mild panic status to breaking a sweat.

The introduction of the Employment Services Bill is bound to be a hot topic for the months to come and is aimed at enhancing the Department of Labours’ public employment services, partly through the provision of legal status for the Sheltered Employment Factories administered by the Department and Productivity SA and partly through the regulation of private employment agencies.

And…where is all this going?

It is apparent to me that whilst the proposals are clearly aimed at reducing unemployment they simultaneously scare off a lot of employers as a result of the possible risk of employing new staff. Some of the conundrums which employers may face will arise when they have junior level project specific vacancies but are hesitant to appoint personnel on a fixed term basis given the legislated presumption of bias towards permanency of employment.

Many recruitment agencies are small businesses run by entrepreneurs and won’t the over-regulation of such agencies pose a threat which will lead to closures and create further unemployment?

I have no doubt that the CCMA processes will become more efficient when the LRA amendments are promulgated but whether or not this legislation will raise a whole new host of technicalities, still remains to be seen?

Just a thought - Does the separation of the higher earning employees into different jurisdictional areas amount to discrimination in itself, or render the Acts which promote equality unequal?

With all these questions and thousands more, 2011 is bound to be a very interesting labour year – Fasten your seat belts and watch this space!

Dyonne Modlin holds a B Comm degree and majored in Industrial Psych and Labour Law. Dyonne Currently works with Viljoen Consulting and Lateral Law and can be contacted on 083 327 3965 or dyonnemodlin@viljoenconsulting.co.za

Vine
01-02-2011, 10:25
What is due process to employ some one for a limited period. In other words, I have work for an unskilled person for 3 to 6 weeks only, there after they are not required or I need skilled labour for 1 month only?

Nikki
01-02-2011, 12:41
Oh Victor - that's an easy one - you hire them for a specific project (call it what you want) and the estimate length of the project is 6 weeks. When the project is finished (even if it is finished withine 4 or 5 weeks) they go - project done and dusted.

So for example you need an unskilled for 3 to 6 weeks, the contract would read something along the lines of Sipho is employed for a period of 3 to 6 weeks on the 'Clean the Garage' project. Should this project run over the estimated 6 weeks allocated, Sipho would be employed until the project is completed and this would not constitute permanent employment of any kind. Etc. Obviously the correct legal terminology would need to be used and Dyonne is busy drafting these contracts.

Same as the Skilled labour - he/she would be employed for a specific contract.

Remember though that this is now "untested" in the Labour Court so it could still be referred and it could still be lost - that's what happens when laws change and the changed bits are used and then challenged.

Vine
01-02-2011, 14:38
Hi Nikki,

Thanks for the clarification.

Nikki
01-02-2011, 19:48
Hi Nikki,

Thanks for the clarification.
You're most welcome - some of it means that you just have to change your terminology :)