SEIFSA March and April 2022

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MAR APR 2022

SEIFSA COO wants SA’s operating environment to be more business friendly Big win for governement, In wage bill battle Paid holidays for the metal industry

Metals Sector Urged to seize South Africa’s beckoning Steel Master Plan Opportunity

Content Big win for government in wage bill battle

SEIFSA welcomes back Tafadzwa Chibanguza as Chief Operating Officer

36

SEIFSA COO wants SA’s operating environment to be more business friendly

38

Suspension for not vaccinating

40

10 12

We Need to Let Go of the bell curve

14

World of Work

23

Harassment in the Workplace - Employers to note their obligations under the new Code

26

Welders are a Dime – a dozen but quality welders are not

28

SA Government tight rope – View point ot of TES

32

Accredited Temporary Employment Service Providers

29

33

44

Mandatory Vaccination

National Minimum Wage and Earning threshold increased

Get to know Lucio Trentini

What to expect when you’re expecting covid-19 restrictions to be lifted

Could employers who don’t offer remote working loose valuable talent?

59

How to be vulnerable at work Without spilling every thing

62

Powered by

56 New case deals with a SA Worker who was fired for complaining too much

47

Post termination confidentiality restrictions are they worth anything?

50

SA’s New Privacy Rules leave business with Covid Vaccine headache

53

What to expect when you’re expecting Covid-19 restrictions to be lifted

56

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6 issues published annually.

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Metals sector urged to Seize South Africa’s beckoning Steel Master Plan Opportunity

President Cyril Ramaphosa highlighted the Steel Master Plan in last month’s State of the Nation Address.

An upbeat Lucio Trentini, in his capacity as the CEO of the nigh-80-year-old Steel and Engineering Industries Federation of Southern Africa (Seifsa), described the challenges faced by the metals and engineering sector as being “quite daunting” and highlighted the

South Africa’s historic metals sector employer organisation urged all the sector’s employer bodies to roll up their sleeves on May 19 and 20 and get their teeth into the Steel Master Plan, which is seen to have promising reindustrialisation elements.

amazing resilience that members had displayed in the last 12 to 18 months.

Seifsa has a combined membership of more than 1 200 companies that employ more than 170 000 personnel. Formed in 1943, its members range from giant steelmaking corporations to microenterprises employing fewer than 50 people.

“The message that I want to put out is that this industry stands ready to make its contribution to translating government’s vision of reindustrialising the metals and engineering sector, and to start translating visions, promises and policy into action and deliverables

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“What we need is for the government

The

knock-on

effects

are

felt

to roll out its promised infrastructure

throughout the economy owing to the

spend, which is absolutely central to

sector’s role as supplier and customer

the reigniting of industrial capacity

into the mining, automotive, motor,

in the sector. I can assure you, if we

construction and other manufacturing

see half of what government has

sub-industries.

promised, the sector will ignite, move

“ During the three-week stoppage of the sector last year, more than R300-million a week in lost wages and more than R600-million a week in lost revenue was shed by the sector – and those

”

foster mutually-beneficial relationships between employers, labour and government in creating a business environment conducive to growth.

When Trentini joined South Africa’s metals and engineering sector from JCI Gold and Uranium Company 30-odd years ago, it employed more than half a-million blue-collar workers. Sadly, it is

forward and create the much-needed

“Because of the nature of our economy

economic growth and consequent

and its size, the major sectors of our

jobs and job opportunities that this

economy are all interrelated, so when

country so sorely needs. We’re ready,

one cog in the wheel experiences a

“The knock-on effect into mining, construction,

we want to do our bit,” said Trentini

stutter, the effects are felt throughout

automotive

manufacturers,

the jobs we have and allow the government to

in a Zoom interview with Engineering

the value chain,” said Trentini.

automotive assemblers was felt very deeply,”

create an enabling environment,” said action-

said the head of the organisation that sets out to

orientated Trentini.

News & Mining Weekly.

are very conservative figures

component

now down to half that number.

“Jobs are scarce and we need to hold on to

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“We have to sit down, we have to talk, we have to be honest, He sees the Steel Master Plan, already signed by representatives of

and we have to confront the so-called brutal truths if we are

business, labour and government, as being an integral part of the

going to make progress. If we don’t do that, the Steel Master

new enabling environment that the government is heralding, and

Plan will be another vision that doesn’t see the light of day –

urges all relevant organisations to put their shoulder to the plan’s

and I don’t think we have much time.

wheel at its upcoming conference on May 19 and 20.

“There’s a lot happening in our country and the sooner we “It’s not going to create any miracles overnight but it’s the first time

start sitting down and rolling up our sleeves and getting

that government, through Trade, Industry and Competition Minister

our teeth into the various issues that the Steel Master Plan

Ebrahim Patel, has come to business to ask what it can do together

wants to focus on, the better,” Trentini added.

with labour, to address the challenges that we face as a sector,” he said.

Seifsa will be using the period ahead of the next round of Localisation and designation without having to compromise on cost and quality is the plan’s focus.

wage negotiations in 2024 to get stuck into what it highlights as ten critical objectives.

In addition to the Steel Master Plan, these include skills development and human capital, transformation, revival

“We now know that there are going to be massive increases in the price of steel because of what is happening in the Russian-Ukrainian conflict and the

and inclusiveness, electricity and energy, import-export and international trade, and talking to the economic cluster about what they see unfolding in the next year to three years.

price of steel, which is a major input into all of this

“I was bitterly disappointed that, at the signing of the Steel

industry, is a major issue up for discussion,” said

Master Plan, Seifsa was the only employer organisation

Trentini.

present. Yes, Seifsa is the largest and the most influential, but it’s not the sector’s only employer organisation, and I think it’s critically important that all employer organisations

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play a role because all employer organisations

government administrator, who also played

represent their respective constituencies

a prominent role in South Africa’s successful

and those remaining outside are doing their

bid to co-host the Square Kilometre Array project.

constituencies a disservice.

It has been signed against the backdrop of We

don’t

have

another

metals

and

serious Covid-linked steel supply backlogs.

engineering industry. This is the only one we have. It’s best that everyone comes in to

During the ceremony, Barnes Group director

attend and best if everyone brings their sharp

Doron Barnes, whose company acquired

minds and their intellect and their creative

steel pipe manufacturer Hall Longmore from

ideas to try to move this industry forward as

Murray & Roberts in 2014, was quoted as saying

quickly as possible, because, I stress, we don’t

that he had already witnessed first-hand the

have a lot of time,” said Trentini.

power of collaboration, with government’s intervention having played a key role in

As Engineering News has reported, the

averting the closure of Hall Longmore and

launch of the Steel Master Plan took place

having its equipment relocated to Nigeria.

amid the constant hum of heavy machinery

“It is always easier to complain, blame and

at Hall Longmore’s factory in Wadeville, Gauteng.

criticise rather than to put in a meaningful effort to create sustainable solutions,” Barnes

The 80-page document has been published

said in his address on the factory floor, adding

following nearly two years of “robust” talks,

that the master plan created the platform

facilitated by Dr Bernie Fanaroff, the former

to “map a way forward” with the support of

trade unionist and leading post-Apartheid

government.

It was stated that the plan had been developed on three pillars, namely:

1 2 3

boosting demand for steel and steel products, primarily by reviving South Africa’s stalled public infrastructure roll-out; driving localisation, or import substitution; and by leveraging the market access being created through the implementation of the African Continental Free Trade Agreement;

addressing

supply-side

constraints,

including

electricity

disruptions and tariff hikes, logistics bottlenecks, uncompetitive inputs and inadequate skills, and research and development; and

a series of cross-cutting interventions, including the creation of a Steel Industry Development Fund, to be capitalised through the introduction of a levy of between R5/t and R10/t on all steel sold domestically, whether it be produced locally or imported.

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“

The big gains will be made by moving our infrastructure programme from shallow waters to deep waters and to get it moving on a bigger scale and then introducing a localisation requirement not only on primary steel, but also downstream steel

“It’s going to be about increasing domestic demand for steel,”

metal products and that an accord had been reached at the

Patel explained at the signing.

National Economic Development and Labour Council to drive progressive localisation of up to R200-billion of additional

“The big gains will be made by moving our infrastructure

production over a five-year period.

programme from shallow waters to deep waters and to get it moving on a bigger scale and then introducing a

National Union of Metalworkers of South Africa general

localisation requirement not only on primary steel, but

secretary Irvin Jim, who put his signature to the master

also downstream steel.”

plan, argued that the steel industry needed to begin casting its mind beyond being in “survival mode” and use the

Patel reiterated his contention that there was scope for

platform to reverse deindustrialisation and put a stop to the

higher levels of localisation, including localisation of steel and

jobs “bloodbath”.

9

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BOOK NOW! Visit our website www.seifsa.co.za

MAINSTREAMING THE STEEL AND METALS FABRICATIONS MASTER PLAN Join Minister of Trade Industry and Competition, Ebrahim Patel, Senior DTIC Officials, Representatives from the Steel Oversight Committee and Workstream Leaders who will unpack progress on implementation of the plans and commitments over the year ahead that will lay the foundations for the development and growth of the Metals and Engineering (M&E) Sector.

Conference information Date: 19 - 20th May 2022 Venue: Industrial Development Corporation, Sandton

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BIG WIN FOR GOVERNMENT

in wage bill battle

The Constitutional Court has dismissed an appeal brought by public sector unions after the government reneged on aspects of its collective wage agreement reached in 2018.

While the state implemented wage increases for

Arguments

2018/2019 and 2019/2020, it said that it could not increase

The matter was subsequently taken on appeal by the

the third clause relating to wages in 2020/2021 due to a

various public sector unions to the Constitutional Court.

lack of funding. It is estimated that implementing the final year of the three-year agreement would have cost

The Department of Public Service and Administration

the fiscus R38 billion.

(DPSA) and the Minister of Finance argued that organs of state are obliged to act within the confines of the

The Labour Appeal Court had previously found that the

law and that the collective agreement did not comply

cost of the collective agreement could not be covered

with the mandatory statutory provisions prescribed by

solely from the minister of Public Service Administra-

regulations 78 and 79 since the DPSA could not cover

tion’s budget; that Treasury did not provide a written

the cost of the wage increases from its own budget.

commitment to guarantee additional funding and no further agreements were made by other departments

The various unions argued that the Labour Appeal

or agencies in accordance with the regulations.

Court failed to consider the doctrine of estoppel, which prevents the state from seeking to escape its contrac-

There were also concerns that the minister did not follow

tual obligations.

regulations 78 and 79 of the Public Service Regulations which require the department to be able to meet the

They further argued that the sanctity of contracts must

fiscal requirements and Treasury approval.

be upheld and allowing the respondents to escape their obligations would undermine the purpose of and

It also found the clause to be unlawful for violating

the enforceability of collective agreements. And that if

sections 213 and 215 of the Constitution which

the Labour Appeal Court had applied the pacta sunt

requires fiscal transparency and effective financial

servanda (agreements must be honoured) principle, it

management.

would have come to a different conclusion.

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In addition, no written commitment was made by Treasury,

unions invalid and unlawful, and thus unenforceable.

stands at 5.7% — plus 2 percentage points, and that it wants

and no written agreements were forthcoming from other departments.

equivalent to the consumer inflation rate — which currently

The court, therefore, dismissed the applications for leave to

a single-year wage deal.

appeal with no order as to costs.

Ruling

That compares with a budget estimate for the state’s

In its unanimous ruling, the Constitutional Court found that

The ruling has significant ramifications for South Africa

annual salary bill to rise by an average of 1.8% annually

the regulations 78(2) and 79(c) created jurisdictional facts

with the wage bill and potential payout seen as a major risk

over the next three fiscal years. The ruling comes ahead of

which must exist prior to the minister’s exercise of power

to the country’s fiscus.

another round of wage negotiations.

to negotiate and conclude collective agreements on behalf of the state, absent which the minister acts without legal authority.

Higher‐than‐budgeted compensation increases, and/or a decision by the Constitutional Court to uphold the appeal related to non-implementation of the final leg of the

The Constitutional Court found that

these

jurisdictional

2018 wage agreement, was named as a major risk to the economy by Treasury in its 2022 national budget.

facts were not present and

that

Annual salary bill

to rise by an average of 1.8% annually

1.8%

annually

non-com-

While honouring the deal would have cost the government

pliance with the re-

R37 billion ($2.4 billion) in the 2021 fiscal year, it would have

quirements of reg-

now been on the hook for R75 billion in back-pay for civil

ulations 78 and 79

servants, Absa economists, including Peter Worthington

Remuneration costs account for about a third of total

rendered the re-

and Miyelani Maluleke, said in research note on Monday

government expenditure, and agreeing to demands for

that cited National Treasury officials.

continued inflation-beating increases would compromise

sultant collective agreement

be-

tween the state and

the

trade

the medium-term fiscal framework presented by Finance The Public Servant’s Association, which represents more than 240,000 state workers, said it intends to seek increases

Minister Enoch Godongwana on February. 23.

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National minimum wage and Earnings Threshold Increased

New Earnings Threshold On 8 February 2022, the Minister of Employment and Labour announced that the “earning threshold” had been increased.

R 18 673.37 Per Month

R 17 633.00 Per Month

On 7 and 8 February 2022, two significant developments took place in the employment law arena.

These were.

R

Previously, the earnings threshold

As from 1 March 2022, the new

was R 211 596.30 per year

earnings threshold will be R 224

(approximately R 17 633.00 per

080.48 per year (approximately R

month).appr

18 673.37 per month).

“Earnings” includes the employee’s regular annual remuneration before deductions, but excludes benefits such as subsistence and transport allowances, achievement awards and payments for overtime worked.

Employees who earn more than the earnings threshold per annum are excluded from the protection of sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the Basic Conditions of Employment Act, 1997.

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The increase in the threshold will mean that from 1 March 2022, some employees who earn more than R 211 596.30 but

Increases in the National Minimum Wage

less than R 224 080.48 per year may be

The Minister of Employment and Labour also published

entitled to additional protections, such as

increases in the national minimum wage and various

overtime payment when working more than 45 hours per week, compulsory breaks and rest periods, night work allowances and the like.

sectoral determinations. These increases are also effective from 1 March 2022.

It is important to note that farm workers and domestic workers will also be entitled to the same national minimum wage. However, workers employed on an expanded public workers programme are entitled to R 12.75 per hour. Sectoral determinations have also been made for the contract cleaning sector and the wholesale and retail sector. Employers in these sectors will be required to increase their minimum wages, too.

The national minimum wage will change from R 21.69 for each ordinary hour that an employee works to R 23.19 for each ordinary hour that an employee works. This is an increase of R 1.50 per hour.

National minimum wage will change

In addition, workers who have concluded learnership agreements are entitled to certain allowances as outlined in a Schedule in the Government Gazette.

Lauren Salt Employment | Executive l salt@ENSafrica.com Jessie Gertzen Employment | Candidate Legal Practitioner jgertzen@ENSafrica.com

From

R21.69 for each ordinary hour that an employee works to R23.19 for each ordinary hour that an employee works

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We Need to Let Go

of the Bell Curve

That skewed situation worried him greatly, and he wondered what we could do to spread our lending book more evenly. I’ve had similar conversations with

mean,

the fundraising manager of a non-profit I chair: The

median,

bulk of the funding comes from some 20 donors, which

and mode

she tells me is unsustainable. The way she sees it, the

would all coincide

organization is heading toward a cliff. Both of these reactions reveal a common cognitive error that has profound implications for leadership.

The mean, median, and mode would all coincide; half the people would fall below the average, and the other

By Adrian Gore, CEO - Discovery

Like the banking manager and the fundraiser,

I recently had a conversation with one of our senior managers about our company’s new banking division; he told me that only 21% of our cardholders account for 80% of spending.

most of us view the world as largely

half above. In this world, variables are independent and do not influence each other.

Gaussian, which means we believe most things are distributed, or should be

Why do we think that way? First, our brains are hard-

distributed, according to bell curves.

wired to find fairness rewarding and uplifting and are

In this world, most cardholders

averse to inequality. A Gaussian world, with most peo-

and donors, for example, would

ple clustered around a stable average, feels fair and

spend or contribute close

predictable. We also find symmetry particularly pleas-

to the average, and the

ing, whether in faces, art, or statistics. Moreover, most

remaining people would

of our schooling is still based on normal distributions

fan out symmetrically

and Newtonian thinking, which breaks down reality

on each side of

into independent variables and cause and effect. This

that

average

view of the world has permeated multiple disciplines,

amount of

from medicine to statistics and management. Finally,

money.

there are indeed phenomena that follow Gaussian distributions. Take test scores, for example. The variables

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A Pareto Distribution vs. a Gaussian Curve measured (the test scores) are the outcome of

follow a Pareto distribution instead of a

additive processes (the sum of the scores on

“normal” Gaussian curve.

each question).

A normal distribution (i.e., a Gaussian curve) is a bell-shaped, whereas a Pareto distribution (i.e., power law) is shaped like a

In Pareto distributions (named after economist Even though I learned about a multitude of

Vilfredo Pareto, who in the early 20th century

other statistical distributions when I studied

observed that 20% of people in Italy owned

statistics and probability theory, I too held the

80% of the land), a small change in one variable

intuitive view that most things follow a bell-

is associated with a large change in another,

shaped distribution.

because it reflects variables multiplied with

hockey stick with long tails.

each other rather than added to each other, as Yet they don’t. Let me tell you why, and why it

in the normal distribution. This is also referred

matters greatly.

to as a “power law.” Instead of a symmetric bell curve, the distribution of observations or

About 10 years ago, after reading about

outcomes looks like a hockey stick with a long

cognitive biases, I was surprised to find out

tail, as shown in the figure below. There are

that most human activities, as well as many

many observations of low values, and a small

disciplines — from physics and biology to

number of high values, or outliers.

linguistics, finance, and computer science —

Once you start looking, you’ll see that pattern almost everywhere, almost all the time. The frequency of words we use when we speak, the magnitude of earthquakes and hurricanes, the size of companies and cities, book sales, and the pattern of countries winning Olympic medals all follow power laws.

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Insurance Social media is no exception — for example, a U.S. study

In our short-term insurance business,

showed that just 25% of the most active Twitter users

Discovery Insure, the worst 30% of drivers

accounted for 97% of tweets.

account for 60% of serious accidents.

Covid-19 also spreads in a Pareto fashion:

30% of drivers account for 60% of

ACCORDING TO DISCOVERY

serious accidents.

Social media U.S. study showed that just 25% of the most active Twitter users accounted for 97% of tweets

In two Indian states, 60% of new infections

New Infections

were found to be caused by less than 10% of

60% of new infections

people carrying the disease — a few “superspreaders” — whereas another 71% did

were found to be caused by less than

10%

not infect anyone at all. (This transmission

people carrying the

pattern

disease

has

been

observed

in

other

IN TWO INDIAN STATES

of

countries as well.)

Why is the Pareto distribution the actual norm, instead of the normal Gaussian distribution? Perhaps even more importantly, why is it becoming even more so? Most things follow power laws because this is how interconnected complex systems behave. And power laws are becoming ever more ubiquitous because our world operates in increasingly interconnected complex systems. The more interconnected the complex systems, the more pronounced the power law.

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Economies, supply chains, trade, and markets have become more intertwined and global. Information technology and transport have exponentially deepened the interconnection of the multiple systems we’re part of. In these networks,

Generate

variables are not additive but instead influence each other, creating dynamic, reinforcing, and cascading processes that are nonlinear, multiplicative, and far less predictable. In fact, these systems are capable of black swan behavior, because in most Pareto distributions (unlike in Gaussian ones), the

20%

of sickest people

79% of health care costs

variance — which measures how dispersed the data points are around the mean in a distribution — is not well defined. and the same skewed distribution can be found within that Besides being pervasive, these power laws are also remarkably

20% group (with the sickest 20% within that group responsible

stubborn. Regardless of what we do, a small number of data

for nearly 60% of health care costs). If you keep drilling down

points — people, decisions, or other observations — still

into the numbers, you’ll keep finding that a relatively small

account for most of the results. Political systems designed

number of people account for most of the costs.

to produce greater income equality, for instance, struggle to shift Pareto out of the way. Take China, which, despite its

This disconnect between our Gaussian perception and the

greater focus on income equality than most other countries,

Pareto reality is not an obscure intellectual point, but instead

has a higher Gini coefficient than Germany and the United

carries serious practical consequences. Because of this error,

Kingdom.

our approach to most problems is, at best, suboptimal.

Such distributions also repeat themselves like

Russian dolls, as we see in our health insurance business:

Malcolm Gladwell, for example, has written about how the typical solutions meant to address homelessness — shelters

The sickest 20% of people generate 79% of health care costs,

and soup kitchens — have been ineffective because they’re

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18

based on the mistaken assumption that the majority of

in fact they have the most impact — good and bad. A small

on the other hand, a change in the tail shifts the entire

homeless people follow the average: average number of

viral event, for example, snowballs into a global coronavirus

system — for better or worse.

days without a roof, average cost per person to the public

pandemic and economic disaster.

purse, or average reasons for being homeless. Yet on all these dimensions, homelessness follows a power law, too.

The realization that we live in a largely Pareto world

In the words of Nobel laureate physicist Philip Anderson,

— inherently unfair, asymmetric, and unpredictable —

we need to free ourselves from

average thinking, or

may feel unpleasant at first. The upside, however, is that

focusing on the mean, which, in most cases, is misleading.

systemic change in such a world is much easier and faster.

The joke that when Bill Gates walks into a bar, everyone in

In a Gaussian world, all elements within a system must shift

that bar becomes a millionaire on average, illustrates the

for the entire construction to change, which is laborious,

point. Outliers and tails are dismissed as aberrations, when

time consuming, and often impossible. In a Pareto world,

What does this business leaders?

all

Here are three practical implications for: -

Innovation

-

Risk management, and

-

People management.

mean

for

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19

Innovation

In a Pareto system, one individual or one decision can

business. A few years after we launched our insurance

make an enormous difference. The vision and leadership

business, an initial conversation with a chain of gyms about

of one entrepreneur like Steve Jobs, for example, can end

cross-selling sparked an entirely different idea: What if we

Focus on bold decisions in the tail, rather than

up shaping an entire industry. To stretch this illustration

created a program that rewarded people for doing healthy

incremental change.

further, imagine what impact Apple would have had if

things? What if members who were part of this program

Jobs had started the company in Johannesburg instead

could go to the gym for free? I still remember vividly the

In a Pareto world, seemingly intractable problems become

of Silicon Valley; the company’s gross income today is

10 minutes it took for that idea to take shape. The decision

solvable through a positive change in the tail. This is how

equivalent to roughly half of South Africa’s GDP.

to implement it profoundly transformed our business.

It laid the foundation for a new insurance model based

some cities like Denver have been able to make inroads on homelessness. They designed specific interventions focused

Similarly, the kind of radical innovation that can transform

on behavioral economics and shared value — a business

on the chronically homeless, who account for most of the

entire companies and industries happens in the tail. This

model in which it makes good sense for Discovery, its

social services and health care costs and are the hardest

is why the creation of the Vitality program was a game

customers, its suppliers, and its local community to give

cases to solve, but who make up a tiny fraction of the entire

changer for Discovery: One outlier decision had, and

Vitality members the knowledge, tools, and incentives to

homeless population.

continues to have, an enormous impact on our entire

live healthier lives.

“

Focus on bold decisions in the tail, rather than incremental change

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20

A lot of smaller-tail decisions have contributed to turning the initial idea into what it is today. But Discovery’s success can be traced back to that initial tail decision, which

Risk Management Embrace rather than fight the power law and identify tail problems early.

remains the core of our identity and growth and has had an enormous impact through creating multiplicative

The shift of perspective toward a Pareto world also has implications for how we

shared-value benefits for members and for sharehold-

deal with risk and uncertainty. We spend enormous time and energy trying to

ers. It was the root of a system that connected behavior

“correct” nonlinear phenomena — like asymmetric fundraising and bankcard

change with risk and reward.

lending — that we perceive as abnormal and risky. There may be moral and fairness considerations to account for, but since power law distributions are the rule rather

I’m not saying that incremental improvements aren’t

than the exception, and since they’re remarkably stubborn, they call for different

important — they are. I’m saying that radical innovation

solutions to deal with risk and a focus on the dynamics in the tail.

that can result in systemic and profound change starts with bold decisions in the tail, therefore that’s where

Just as innovation in the tail can shift entire systems for the better, a negative tail

leaders should focus their time and attention.

decision can bring down an entire system — a scenario that keeps me awake at

“

I’m not saying that incremental improvements aren’t important — they are. I’m saying that radical innovation that can result in systemic and profound change starts with bold decisions in the tail, therefore that’s where leaders should focus their time and attention

night. So how do we deal with a Pareto world’s uncertainty and chaos? How do we make decisions? How do we avoid bad tail decisions, or correct them quickly before they become catastrophic?

One promising avenue is to combine extreme outcomes and the plausibility of various future scenarios — economist George Shackle’s Potential Surprise Theory — to help grapple with decisions in extreme uncertainty. Using traditional probabilities is problematic because they rely on predefined and mutually exclusive outcomes that are supposed to cover all possible scenarios — which, of course, no one can predict. A decision maker using Potential Surprise Theory, on the other hand, chooses among various possible scenarios

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21

based on a combination of the degree of disbelief or implausibility of possible outcomes and the

Managing People

might sound arcane, but the practical implications are profound. Shifting the lens through which we understand

expected potential gains and losses associated with each. This approach, unlike traditional

Recalibrating our perspective from Gaussian to Pareto

Create an A+ team to leverage A+ players’ impact.

the world impacts how we approach systemic change, how we make decisions and handle risk, and how we

probabilities, leaves room for surprises and new possibilities. So, think about plausibility and

People’s performance is still often measured using a

lead. And because our lives are made up of intricate and

consequences, rather than probability. Think in

Gaussian curve. In reality, a small number of outperform-

complex webs of human connections, from families and

a much broader way about the bad things that

ers consistently account for most of the impact. The im-

professional networks to the communities we live in, our

could potentially happen.

plication is two-fold.

entire lives follow power laws: A few key decisions — from

We indeed cannot predict or prevent black

First, recruit and retain the best possible people across

having an enormous impact on our future. I believe our

swan (i.e., bad tail) events. But learning to recog-

the board. The stars in the tail will still account for the

thinking follows the same power law. By

nize and contain them early can avoid a disas-

largest impact on results — remember that power laws

correcting a handful of cognitive errors,

ter. When Covid-19 first broke out in South Ko-

are stubborn — but this doesn’t mean that all recruitment

starting with this one, we can radically

rea, for instance, authorities’ early and decisive

and retention efforts should focus on them. Consistently

transform our performance, our im-

test-trace-isolate reaction contained the spread

attracting and retaining exceptional talent across the en-

pact, and our entire life.

of the disease, compared to countries like the

tire organization will lift the entire talent curve, with pro-

United States or Brazil. Similarly, we can learn to

found impacts on results. So, although a small percent-

recognize and reverse dangerous tail decisions.

age of people still account for a relatively large proportion

Imagine what could have been avoided if Leh-

of results, having better talent across the board can lift

man Brothers, for example, had identified as a

results in absolute terms.

tail decision expanding its subprime mortgages

Second, focus on improving team environments and dy-

and mortgage-backed derivatives business to

namics at all levels. When the complex system that is a

the extent that a small decline in real estate val-

company gets more and better interconnected, the

ue could wipe out its capital.

multiplicative impact of the star performers in the tail

whom we marry, to what careers we choose — end up

becomes amplified throughout the entire system.

SEIFSA Contents RATEPage CARD

22

Main Agreement Handbook

EFFECTIVE 1 JULY 2022 - 30 JUNE 2023

(for A4 print and A4 Interactive pdf - digital format) About Main Agreement handbook The 2022 - 2023 edition of the Main Agreement Handbook for the Metal Industry is an easy-to-read summary of the industry's Main Agreement.

It includes: - The wage increase effective from the 1st July 2022.

- All Technical Schedules.

- Management notes that explain the more complicated sections of the Main Agreement.

- Various pro-forma letters to assist management in applying specific provisions of the Main Agreement, e.g.: retrenchments, short time and lay off.

The Main Agreement Handbook will be available in July 2022 Over 5 000 subscribers

Description

Cost

Full page anywhere

R 10 000.00

Inside Front page

R 12 000.00

Inside Back Page

R 12 000.00

Size: 210mm (w) x 297mm (h) with 5mm bleed Material deadline and requirements Ad booking deadline Second week - April 2022 Ad material deadline 2nd week May 2022 Material should be send in high resolution PDF, Tiff or JPG via email if less than 5MB, or via WeTransfer if larger than 5MB. High resolution pdf with crop marks.

If submitting advert in Powerpoint or Word, pictures and logos must be CMYK and must be made up to the correct size.

Advertising enquiries Tel: 011 298 9400 - sales@seifsa.co.za All rates exclude VAT The editor reserves the right to decline advertising

Contents Page

23

World of work: The trends and transformations of the dramatically changed landscape of the 2022 workplace

From the rise of the freelancer, and

from home, but others have embraced the flexibility –

mental health and wellness programmes,

and global job positions are now more readily available

to listening to Generation Z’s concerns, the corporate working environment is a transformed landscape of issues and trends.

as companies have accepted that remote working is an option that works and reduces costs significantly.

Regarding flexible hours, many companies are revising their former standpoints and offering employees op-

Flexible working hours, more freelance gigs, social

tions ranging from hot desks to home desks. Practical-

standpoints and improved corporate well-

ly, this has played out in the shape of office rentals de-

ness programmes that are practical and

clining and employees report being more productive

accessible. These are just a few of the

when they have the freedom to work from home and

trends the workplace has seen and con-

shape their own hours.

tinues to see going into 2022.

A quarterly report by property analytics firm Rode & Having an idea of what has changed in

Associates, titled State of the Property Market, shows

the corporate world can help employ-

that cities such as Johannesburg and Cape Town had

ees to redefine their own job searches

office vacancy rates averaging at 19.8% and 16.7%, re-

as well as become more circumspect

spectively, in the last three months of 2021. Large com-

about accepting job offers.

panies that now allow employees flexible working hours include the likes of Old Mutual.

Though some things will always stay

Julien Raze, a director at recruitment firm Michael

the same – like gossip at the office water

Page Africa, says, apart from salary, culture and career

cooler – the past two years have brought

growth as consideration points for candidates looking

significant shifts under the shadow of

to switch into new positions, top candidates are also

Covid-19 and global lockdowns. Some

likely to consider what flexible working arrangements

people resent the loneliness of working

companies can offer.

Contents Page

24

Old Mutual research last year revealed a 9% rise in

“Now, more than ever, candi-

sourcing scarce talent to be

dates need to be convinced they

based

are making the right decision

world. This is particularly true

Mental health has also moved to the forefront

tinuing a three-year upward trajectory, and more

for themselves and their family,”

within the technology sector,

in the South African employment industry, with

than three-quarters of these claims are a result

says Raze.

where there is a real skills short-

companies sitting up and taking note that stress

of major depression. What are companies doing

Paul Newman, the company’s

age in South Africa,” he says.

levels do affect performance, job satisfaction and

about it?

anywhere

across

Mental health and corporate wellness

mental health claims under disability cover, con-

the

operating director for South Af-

employee turnover, to name a few things.

They are standing up and making improvements

rica, says a recent survey of 318

Although some companies have

job applicants in the country re-

veered towards flexible work-

The South African Depression and Anxiety Group

to their corporate wellness programmes. Im-

vealed that 88% believed they

ing arrangements for perma-

(Sadag) reports that presenteeism – where de-

provements could be as simple as making access

could fulfil their tasks or respon-

nent employees, others forced

pressed workers are at work but not performing

to these programmes more discreet, giving em-

sibilities remotely, highlighting

to downsize have turned to the

due to mental stress – costs the country roughly

ployees the benefit of confidentiality and practi-

the need for technology capabil-

gig economy, hiring freelancers.

R200-billion a year.

cal toolkits to manage their stress.

ities to be accelerated.

Phillipa Geard, CEO of RecruitMyMom, says contracting skills

It’s no longer enough to just have a corporate

“What started as an enforced

for a fixed period or defined pro-

wellness programme available. Employees have

work-from home policy for some

ject allows companies the flex-

to be comfortable enough to use the programme

companies has now evolved into

ibility to manage the impact of

so that they can address their issues and improve

a long-term strategy for most

market uncertainties. However,

productivity levels.

companies, thereby accelerating

in such an environment, it can

digital transformation and tech-

become tricky as candidates are

The

nology adoption across nearly all

often asked what their rates are

occupational

industries.

and are expected to price their

results from a chronic level of workplace-related

work.

stress. Noticeable effects are increased feelings

World

Health burnout

Organization as

a

defines

syndrome

that

“We have noticed a sharp in-

of energy depletion or exhaustion; increased

crease in global organisations

mental distance from the job or having negative

Contents Page

25

or

cynicism-related

related

to

it;

and

feelings

The rise of CSG – corporate

reduced

social governance – requires

efficiency.

that corporates develop a voice on social issues and then put

A survey by the Top Employers

their money where their mouth

Institute this year showed that

is.

95% of respondents saw wellbeing as a key business imper-

This doesn’t just mean dona-

ative and took steps to make

tions, but must be seen in the

this awareness felt within their

actions and strategy of the

organisations.

business, so it can demonstrate its sustainability on issues such

About 92% of top employers have

ongoing

as climate change and diversity.

communica-

tion about their wellbeing pro-

According to a recent Sage

grammes, 84% of them have

Payroll

senior management involved in

report,

these established programmes

medium

and 88% have initiatives to raise

are specifically catering to the

awareness

needs of Generation Z, and

about

emotional

wellbeing.

and 73%

HR of

research

small

enterprises

and

31% of SMEs are placing a more of the LGBTQ+ community.

Companies are no longer able to hide behind corporate screens and keep silent on social issues.

Daily Maverick

21 Jun ‘22 20 Sep ‘22

(SMEs)

strategic focus on the concerns Louder social voices

2022

intake dates:

The Premiere Training Centre for all Your Skills Development & Related Business Solutions

Managed by:

Contents Page

26

South Africa: Harassment in the workplace

The Minister of Employment and Labour has published the new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (the Code) in terms of the Employment Equity Act (EEA). The Code be-

Employers to take note of their obligations under the new Code of Good Practice

came effective on 18 March 2022 and repealed the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace.

The publication of the Code follows the ratification by South Africa of the International Labour Organisation’s Convention on the Elimination of Violence and Harassment in the World of Work in November 2021. The Convention obliges ratifying states to adopt an inclusive, integrated and gender-responsive approach to violence and harassment in the workplace. The Code accordingly seeks to address the elimination and prevention of all forms of harassment (and not just sexual harassment) that pervade the workplace and is guided by the Convention.

Key take-aways for employers The Code provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace. In this regard, the eight key take-aways from the Code are as follows: 1. The Code applies to all employers and employees irrespective of whether they operate in the formal or informal sector.

In determining whether a person is an employee for purposes of the Code, the presumption in section 200A of the Labour Relations Act is applicable. Volunteers and applicants for employment also fall within the definition of an employee.

2. Perpetrators and victims of harassment extend

beyond

employers managers,

and job

just may

employees include

and

owners,

applicants,

interns,

apprentices, volunteers, clients, customers, suppliers,

contractors

and

any

other

persons having dealings with a business.

Contents Page

27

3. The Code makes it clear that the protection of employees

•

is related to one or more grounds in respect of which

to employees, implementing an appropriate policy

against harassment applies in any situation in which

discrimination is prohibited in terms of section 6(1)

addressing harassment, conducting training to educate

the employee is working, or which is related to their

of the EEA.

employees about the various forms of harassment and

work. In other words, harassment does not only occur

implementing ongoing awareness programmes.

when employees are on-duty at the physical workplace

6. The Code recognises that harassment includes violence,

but extends to work-related trips, training or social

physical abuse, psychological abuse, emotional abuse,

The Code introduces new requirements which employers

activities, work-related communications, employer-

sexual abuse, gender-based abuse and racial abuse. It

will be required to adhere to, failing which they may be

provided accommodation, when commuting to and

includes the use of physical force or power, whether

found liable in terms of section 60 of the EEA. Please watch

from work in transport provided by the employer or

threatened or actual, against another person or against

out for our further newsflashes in which we will unpack

the location of employees who are required to work

a group or community. Further, the intersection of

the provisions of the Code in more detail.

virtually, amongst others.

factors such as race, religion, gender or disability increases the risk of harassment in the workplace.

4. The Code deals with the concept of harassment

This newsflash was written by Nadine Mather and is the first in a series of newsflashes on this topic. Please

broadly and highlights sexual harassment and racial,

7. The Code makes reference to other statutes that are

ethnic or social origin harassment as specific forms of

relevant and which employers are required to comply

harassment.

with in order to prevent violence and harassment in

contact your Bowmans lawyer should you require further information.

the workplace, including the Promotion of Equality and

Bowmans is a leading African law firm with offices in Kenya,

5. Whilst the term ‘harassment’ is not defined in the EEA,

Prevention of Unfair Discrimination Act, the Labour

Mauritius, South Africa, Tanzania, Uganda and Zambia, Alliance

the Code provides that the term is generally understood

Relations Act, the Occupational Health and Safety Act,

firms in Ethiopia and Nigeria, special relationships with leading

to be unwanted (or unwelcome) conduct which:

and the Protected Disclosures Act.

firms in Malawi and Mozambique, and a non-exclusive co-opera-

•

Impairs dignity;

•

creates a hostile or intimidating work environment

8. Employers are under an obligation to take proactive

for one or more employees, or is calculated to, or

and remedial steps to prevent all forms of harassment

has the effect of inducing submission by actual or

in the workplace. In terms of the Code, this includes

threatened adverse consequences; and

conducting an assessment of the risk of harassment

tion agreement with French international law firm Gide Loyrette Nouel

Contents Page

28

WELDERS ARE A DIME - A DOZEN BUT QUALITY WELDERS ARE NOT Apprenticeships are a key way to solve South Africa’s skills and employment crisis

Welders it seems are a dime a dozen but highly

understand the need for suitably qualified and

skilled welders are not. This is the stark reality

experienced trainers within their institutions,

facing

sector

who follow clearly outlined training guidelines

according to SAIW Executive Director John

in properly equipped facilities. In addition,

Tarboton who is concerned about the number of

certification bodies do not always understand

fly by night training institutions that churn out

the need for properly trained assessors with a

graduates without the proper qualifications in

proper understanding of Codes and Standards

place. This wastes students’ hard-earned or even

underwritten by objective assessments

the

South

African

industrial

borrowed financing and sends out a generation of unqualified welders into the marketplace.

“As a result what we are increasingly seeing is

This results in situations like that found during

students who have already completed training at

the construction of the Medupi Power Station

other institutions coming to us to gain the proper

where 150 Taiwanese welders were employed for

certified, government recognised training after

specialised welding work due to a lack of local

battling to find or keep employment due to a lack

skills in this specialised field which is certainly not

of skills.

an acceptable situation.

He adds that this is especially worrying given the This is made worse within the context of South

danger this poses to the quality of the installations

Africa’s

(Stats

or projects or products that they work on prior to

SA) equating to 7.6-million people without

achieving the appropriate level of skill. The training

work. However, even when welders seek out

of welders needs to be given the respect it is due.

employment; anecdotally what we have found,

Welding is an essential skill to manufacturing

is that out of ten interviewed, only one will

and fabrication in strategic sectors such as

be sufficiently qualified for the job. Tarboton

power generation, chemical processing and

comments;

construction, transportation, food and beverage

34.9%

unemployment

“Unfortunately

this

rate

stems

from

the issue that training providers do not always

and mining.

Contents Page

29

practical real world skills. “There is a reason

•

our QCTO programme takes three years, not three weeks, as in many other institutions

Minimise

liability

costs

through

appropriate training of workers •

SETA grants, SARS tax benefits and

where training is rushed and based on

BBBEE

scorecard

the easiest methods of welding to ensure

development

points

for

skills

sufficient pass rates.

The apprenticeship scheme has also been “We are not focused on ticking off a list of

proven to reduce training and recruitment

training modules as quickly as possible,

costs. Once the training programme is

with little regard to whether the required

complete, business’s gain skilled employees

technique has been mastered and sufficiently

who are trained to industry standards and

practised. Our training culminates in a test

familiar with a company’s operations and

based on objective criteria according to ISO

culture. This provides a lower-risk, lower-cost

3834 standards where the actual quality of

style of recruitment and enhanced employee

a weld, including its height and thickness,

retention. To promote the use of this scheme

for example, is assessed - not just the act of

the SAIW is offering QCTO apprenticeship

having completed a weld.”

courses at its Johannesburg Headquarters

Light at the end of the training tunnel

As an Approved Training Body’s (ATB) under

Against this backdrop, and to solve South

the IIW and a QCTO accredited training

Business benefits

the Highveld Industrial Park in Emalahleni

Africa’s crisis of a lack of suitably qualified

institute. the SAIW is in a prime position

The apprenticeship scheme is also not just

and a second potential site in Middelburg,

welders, the SAIW is seeking to partner

to assist companies with the selection of

a ‘nice to have’. It has tangible commercial

Mpumalanga in collaboration with the

with companies who want to produce

candidates for its three-year apprenticeship

benefits for companies including:

Department of Economic Development and

artisan welders to the correct standard

training scheme, which offers both QCTO

•

Tourism.

and with the necessary skill levels. This can

and IIW Diplomas - the latter recognised in

take place via the government approved

60 countries.

with the potential for a satellite school in

workforce that helps grow their business •

QCTO - Registered National Occupational Qualification (Welder) 3-year Apprenticeship

The SAIW’s training methodology utilises

scheme.

both theoretical in-depth knowledge and

Recruit and develop a highly-skilled

•

Improve productivity, profitability, and

Issued by MediaInk Communications Media

their bottom line

Enquiries: Luise Allemann luise@mediaink.

Create flexible training options that

co.za +27 82 376-6716

ensure staff develop the right skills

30

Contents Page

What is the purpose of this press release? To ask and answer the question of how the government views TES both officially and unofficially. Focus will be on value of TES providers within this industry and therefore push awareness of TESD.

SA Government’s “Tight Rope” Viewpoint on TES

Although South Africa is a country more industrialised than any of its fellow African counterparts, it nevertheless currently possesses record-high unemployment rates. According to Trading Economics, South Africa’s 2021 third quarter 34.90% unemployment rate is the “highest jobless rate since comparable data began in 2008.”

Contents Page

31

It is a tough juggling act between offering

at Primeserv Group. He goes on further to say

has had to walk a tightrope on their perspective

employment

fair

that at least 40% of government employees come

of TES. “Government knows they cannot promise

employment and protecting the rights of employees

from the TES companies. It makes sense then that

permanent employment.” On one hand, they are

all in one through comprehensive legislation.

industry players were involved from 2000-2014

major employers that support the industry, making

The South African government responded by

in the negotiations with the National Economic

TES critical to the economy. On the other hand,

establishing policies to regulate all employment

Development and Labour Council (Nedlac) whose

Cowley highlighted that the government has to

such as the Labour Relations Amendment Act

task is to seek cooperation between government,

pacify strong trade unionism in the country, which

(LRAA) and the Employment Services Act (ESA).

labour, business and community organisations. This

historically had much

resulted in an updated LRA which came into effect

influence

In 2000, government mandated studies were

in April 2015. As a whole it needed to reflect the

the

conducted to examine the last 20 years of the

changing times and largely casual labour market,

market.

South African labour market. The data revealed

it also included specific regulation of fixed term

that there had been a great shift towards casualised

contracting.

opportunities,

promoting

labour. This distinct pattern in the labour market had been picked up and utilised by the Temporary

“That divided the wheat from the chaff. It bolstered

Employment Services (TES). But what is the

what the TESD had been driving for years,” says

government’s perspective of the industry? “The

Cowley. The Temporary Employment Services

truth is, as an employer, the government needs

Division (TESD) was established in 1994 as

the TES industry to function,” says Kevin Cowley,

the Labour Broking Division, which assures

who has almost two decades of experience in the

compliance and credibility of its members.

industry and is also Human Resources Director

Cowley added that for years the government

over

labour

Contents Page

32

Accredited Temporary Employment Service Providers as at 5 April 2022 • • • • • • • • • •

Adcorp Blu a division of Adcorp Staffing Solutions (Pty) Ltd Adcorp BLU a division of Adcorp Workforce Solutions (Pty) Ltd Alos Business Solutions (Pty ) Ltd AMT Africa Recruitment AMT Placement Services Babanango Operations (Pty) Ltd Bathusi Staffing Services (Pty) Ltd CAP Personnel Placements (Pty) Ltd CDR Contracts (Pty) Ltd Consortium Personnel Consultants Pty (Ltd)

• • • • • • • • • • • •

CSG Resourcing (PTY) Ltd CSS Labour (Pty ) Ltd Eduardo Construction (Pty) Ltd EFS Multi Construction (Pty) Ltd ESG Recruitment cc Fempower Personnel (Pty) Ltd Impact Human Resources Pty Ltd Ithemba Langemphela JLH Group (Pty) Ltd Lavoro Matkri (Pty) Ltd Lekang Projects & Security Services cc Mabhele and Associates (Pty) Ltd

• • • • • • • • • •

Madobra (Pty) Ltd MECS Growth (Pty) Ltd Molapo Quyn Outsourcing Momotheka OHS Training Nelso Africa (Pty) Ltd On Time Boiler And Engineering Support Services cc Pachedu Trading (Pty) Ltd T/A People Dynamics Human Solutions Phakisa Holdings (Pty) Ltd Phakisa MSP (Pty) Ltd Primeserv Denverdraft (Pty) Ltd

• • • • • • • • • • • •

Primeserv Staff Dynamix (Pty) Ltd PTS Metalwork (Pty) Ltd Qunu Staffing (Pty) Ltd Quyn International Outsourcing (Pty) Ltd Scribante Labour Consultants (Pty) Ltd Sindawonye Services Sivulamtfuba Construction and Projects Southey Personnel Services STAFFATACLICK (PTY) LTD Themba Njalo Camden Tributum Emawi (Pty) Ltd Vusithemba Mpumalanga

Contents Page

33

GETTING TO KNOW

Date and Place of Birth: February 2,

of

LUCIO TRENTINI

1964, Italy

Association not for gain

Steel and Engineering Industries

and

Federation of Southern Africa

University of the Witwatersrand

Management Style: Participative

(Wits);

diploma

and inclusive but action orientated

Business

Personal Best Achievement: Being

School; certificate programme in

fortunate to have married a loving,

negotiation skills, Gordon Institute

supportive and understanding wife

of Business Sciences

and being blessed with two wonder-

First Job: Industrial relations officer

ful boys, who continue to make both

at JCI Gold and Uranium Mining

their parents exceptionally proud

Company, in Westonaria

Person Who Has Had the Biggest

Size of First Pay Packet: R3 000 a

Influence on Your Life: My father,

month

a

Career Path to Date: I left the mining

who arrived in South Africa with a

sector after two years to join Seifsa as

suitcase full of clothes and very little

an industrial relations adviser. I was

else and, through hard work, raised a

subsequently promoted to deputy

family. This is a lesson that is central

manager:

industrial

relations,

to who I am

manager:

industrial

relation,

Person Who Has Had the Biggest

executive:

industrial

relations,

Influence on Your Career: David

Education:

in

Q&A Full Name: Lucio Trentini Position and Company Name: CEO of the Steel and Engineering Industries Federation of Southern Africa (Seifsa) Main

Activity

of

the

Company:

To

advocate, lobby for and represent the interests of Seifsa’s affiliated members in the metals and engineering industries and fostering mutually beneficial relationships between employers, labour, government and shapers of policy in creating a business environment conducive to growth

BA

(Economics

Industrial

Psychology),

postgraduate

management,

Wits

Employer

Organisations

i.e.,

Number of People under Your Leadership: 21

brave

and

former

courageous

Seifsa

man

operations director and CEO

Carson,

director:

Value of Assets under Your Control:

industrial relations and later Seifsa

SEIFSA is registered as a Federation

CEO

Contents Page

34

Person You Would Most Like to Meet: Nelson Mandela and Desmond Tutu (may their souls rest in peace)

Nelson Mandela

Desmond Tutu

Businessperson Who Has Impressed You

tion and books on human behaviour, including

Most: Bobby Godsell, for being among the

those written by Malcolm Gladwell

first captains of industry to recognise the

Favourite TV Programme: History Channel,

nexus between capital, labour and profits, and

Discovery and sports channels

Clem Sunter, for his brilliant scenario planning

Favourite Food/Drink: Being Italian and raised

strategies

by a stay-at-home mother, it has to be pasta,

Philosophy of Life: Focus on what you’re good

pizza and fresh salad

at, become the best at it and rewards and

Favourite

recognition will follow

Aerosmith, Def Leppard) and a little bit of Eros

Biggest Ever Opportunity: Travelling in the

Ramazzotti on the side (also referred to as

1990s with business and union leaders to

Italian restaurant music!)

Germany, Japan, France, Belgium and other

Favourite Sport: Soccer and rugby

countries to study and learn from the collective

Hobbies: Working in the garden, reading and

bargaining frameworks of those countries’

watching sport

respective metals and engineering industries.

Car: BMW 3 Series

Biggest Ever Disappointment: Losing my

Pets: Ginger cat, Archie

brother in a tragic car accident when he was

Miscellaneous Dislikes: Litter and people who

only 40 and watching his three young children

complain about what is wrong with everything

grow up without him

rather than focusing on what one can do to

Hope for the Future: That South Africa reaches

make things better

its full potential – we’ve come so far but wasted

Married: To Heather Trentini

so much goodwill and opportunities along the

Children: Andrea, 22; Alessio, 19

way

Clubs: Carlton Centre Gym and Italian Club

Favourite Reading: Autobiographies, nonfic-

Bedfordview

Music:

Light

rock

(Bon

Jovi,

SEIFSA Contents RATE Page CARD

35

EFFECTIVE May - December 2022

SEIFSA News • SEIFSA News is in its 37th year of circulation and has evolved from a print publication, to being an online magazine circulated on all of SEIFSA’s digital platforms.

• This includes the SEIFSA website, Facebook, LinkedIn and Twitter. The publication is also available on SEIFSA’s digital showroom hosted by Engineering News.

• SEIFSA’s social media presence is continually growing both organically within the Metals and Engineering Sector as well as in related industries across the globe.

(Interactive pdf - digital format)

Description

1 Edition

2 Editions

6 Editions

Full page anywhere

R 3 000.00

R 2 850.00

R 2 250.00

Front page

R 5 000.00

R 4 250.00

R 2 950.00

Back Page

R 5 000.00

R 4 250.00

R 2 950.00

• SEIFSA News has an established reputation as the most authoritative voice in the industry. The publication focuses on the latest information on labour related matters and employment law, key trends in the skills development arena as well as a detailed economic reports and analysis highlighting trends in the sector.

New size:

• In addition, the magazine has an updated list of accredited temporary employment service providers (TES) who are affiliated to SEIFSA, registered with the bargaining council and metal industries benefit funds and who are recognised as reputable TES providers

Material deadline and requirements Ad booking deadline - 1st of preceding month Ad material deadline - 17th of preceding month

• SEIFSA News is published bi-monthly every year and is circulated to both members and non-members in the Metals and Engineering Sector.

333.9mm (w) x 190.5mm (h) no bleed

Material should be send in high resolution PDF, Tiff or JPG via email if less than 5MB, or via WeTransfer if larger than 5MB. High resolution pdf with NO crop marks.

If submitting advert in Powerpoint or Word, pictures and logos must be CMYK and must be made up to the correct size.

Advertising enquiries Tel: 011 298 9400 - sales@seifsa.co.za All rates exclude VAT The editor reserves the right to decline advertising

Contents Page

36

afadzwa (Taffie) Chibanguza Taffie returns to SEIFSA in a revised

Senior Economist before leaving for an opportunity

and expanded capacity as SEIFSA

to grow and expand his horizons with the Minerals

Chief Operations Officer (COO). He

Council.

will be working closely with SEIFSA’s Executive Team and SEIFSA Chief

I have little doubt that Taffie will bring energy,

Executive Officer, Lucio Trentini, as the

ingenuity and a fresh approach coupled with well-

SEIFSA Team headed by Lucio and Taffie

honed academic and practical expert experience to the

and ably assisted by the Executive Team

SEIFSA welcomes back Tafadzwa (Taffie) Chibanguza AS CHIEF OPERATING OFFICER

important work of SEIFSA.

comprising of: Louwresse Specht (Head of

Taffie holds a BCom Economics and Econometrics

IR and Legal), Mariaan de Jager (Head of

degree from the University of Johannesburg, a BCom

Finance) and Nuraan Alli (Head Marketing,

(Honours) Degree in Economic Policy from the

Sales and Communication) who together, will

University of Witwatersrand, and a Master of Commerce

be working to roll-out SEIFSA’s revised strategic

Degree in Economic Policy from the University of

vision focusing on lobbying, advocacy and

Witwatersrand and is due to complete a Master of

collective bargaining.

Science in Mining Engineering from the University of Witwatersrand in 2022.

Taffie brings a wealth of academic, expert and industry experience to SEIFSA. Taffie in his previous stint at the Federation progressed to being SEIFSA’s

I’m sure you will all join me in welcoming Taffie back to SEIFSA.

37

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38

He returns to SEIFSA and joins CEO Lucio Trentini to help lead the federation that represents and

New SEIFSA COO Tafadzwa Chibanguza wants SA’s operating environment to be more business friendly

supports 18 independent employer associations in the metals and engineering industries while lobbying the government for policies to improve South Africa’s business environment.

Chibanguza has the necessary educational pedigree, and

with

a

econometrics

BCom from the

in

economics

University

of

Johannesburg, a BCom (honours) in economic policy from the University of Witwatersrand, and an MComm in economic policy from the

Tafadzwa (Taffie) Chibanguza will have his work cut out of him returning to the Steel and Engineering Industries Federation of Southern Africa (SEIFSA) as chief operating officer (COO) just as the global pandemic gives way to war in Ukraine.

University of Witwatersrand. He is scheduled to complete an MSc in mining engineering with Wits University in 2022.

Tafadzwa (Taffie) Chibanguza will have his work cut out of him returning to the Steel and Engineering Industries Federation of Southern Africa (SEIFSA) as chief operating

Chibanguza is excited to be back at SEIFSA after a stint at Minerals Council South Africa, where he was an economist. “The steel and engineering sector is important in any economy and will play an important role in the current South Africa

officer (COO) just as the global pan-

and whatever the future holds for the country,”

demic gives way to war in Ukraine.

he says.

Contents Page

39

At the moment that is a future

pandemic, we have already

There may be some silver linings

friendly and ensure that the cost of

is filled with uncertainty as

seen inflation accelerate again,

though,

production is less. The environment

the

Russia’s

and we are likely to see quite a

uncertainty around the supply of

must

invasion of Ukraine. “Any war is

spike in the inflation rate. Then

commodities, such as coal, which

business,” says Chibanguza.

terrible, but from an economic

the Reserve Bank will be under

South Africa produces. However,

perspective war always breeds

pressure to hike rates ahead of

the higher price may be good news

Despite the full plate, he finds time

uncertainty across the board,”

the cycle and that will increase

for producers but also adds to

to run 5km-6km each weekday.

he says.

borrowing costs and, with that,

the already abundant inflationary

“I use it as time to process the

a decrease in investment. The

pressures. Gold miners may also

previous day’s events and plan the

Some of the issues South Africa

war has come at the worst time

benefit as they reap the rewards of

day ahead. Also, it’s a good time to

may have to face, include the

as the economy is already under

a higher gold price due to the war-

process a thought or a plan. On the

disruption of supply chains due

pressure, and this will choke the

charged demand for the safe-haven

weekends I then also try to squeeze

to no-fly zones and other war-

recovery.”

asset.

in a half marathon every so often,

world

related

digests

obstructions,

which

will then result in shortages of

The rising fuel price, in particular,

various products. “The countries

has

involved in the war and their

effect”, he says, so its effect is

dominance in the commodities

felt widely - when we fill up our

complex will threaten supply,

cars with fuel and also when we

which

into

buy food that is more expensive

inflationary pressures, and that

due to the increased fuel price,

is how it will translate for us,

and again in numerous other

domestically. At this point. with

ways.

will

then

feed

the recovery from the Covid-19

a

“blanket

inflationary

“

Gold miners may also benefit as they reap the rewards of a higher gold price due to the war-charged demand for the safehaven asset.

in

the

form

of

the

be

more

conducive

to

when I can.”

Keeping

an

eye

on

these

developments will need to be

Like so many executives, his down

balanced

day-to-day

time is rare and kept for those closest

demands of being SEIFSA’s chief

to his heart. “I also make it a point to

operating officer, such as calling

prioritise family time. I have a young

on the government to develop a

daughter, so I make it a point to be

coherent policy that creates stability

there during these formative years.

for the industry. “Government focus

Between my daughter and my wife,

should be on kicking in a set of policy

family time is pretty full of things to

objectives that make the operating

do,” he says.

with

environment

the

more

business

Contents Contents Page Page

40

Suspension for not vaccinating

Two recent CCMA arbitration awards have dealt with issues arising out of the implementation of mandatory vaccinations

Following hot on the heels of the Goldrush1 mat-

and it was not possible for him to work in an iso-

ter, the arbitrator in Gideon J Kok v Ndaka Secu-

lated office, given the nature of his job. Kok had

rity and Services (Case no: FSWK 2448-21) found

been given ample time to air his objections, and

that an employee who had been denied access

also given the option of submitting a weekly Cov-

to the workplace on account of refusing to get

id-19 negative test result as an alternative to vac-

vaccinated against Covid-19 had been suspend-

cination. Importantly, although it didn’t dispute

ed and that the suspension was fair. The appli-

the CCMA’s jurisdiction, the employer argued

cant (Kok) had referred an unfair labour practice

that Kok had not been suspended, merely in-

dispute to the CCMA, claiming that he had been

structed to stay at home or provide a weekly neg-

suspended from duty and that the suspension

ative test result. He was still being paid his salary.

was unfair.

in the workplace.

Kok argued that to compel him to be vaccinated Kok was employed as a Safety Practitioner,

would infringe his right to freedom and security

stationed at the premises of the employer’s

of the person (s12 of the Constitution), and there

client. According to the employer, in terms

was no law that compelled an employee to be

of a Risk Assessment that complied with

vaccinated. Mandatory treatment was prohibit-

the Consolidated Directions issued by the

ed by the National Health Act, and although he

Department

Labour2,

agreed that in terms of the Consolidated Direc-

Kok had been identified as someone who was

tions strong measures could be taken, this did

required to be vaccinated.

not include barring him from the workplace;

of

Employment

and

the employer could have resorted to alternative His duties entailed identifying security risks on

measures. He had previously contracted Cov-

site and required him to be “physically involved”

id-19 and had relied on his Christian faith and his

with guards, the client and the public. He also

body’s natural immunity to

shared an office with about 10 other employees Footnotes 1 Theresa Mulderij v The Goldrush Group Case no: GAJB24054-21 (discussed in last week’s Comment) 2

“Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces” (Government Gazette of 11 June 2021)

recover.

Contents Contents Page Page

41

Kok

the

Council and Others4 (Tshwane),

been decisions within the context of disciplinary

Applying the logic of the Tshwane judgment, the

employer had consulted with

the Labour Court reviewed an ar-

action. There was however “nothing in the LRA that

arbitrator found that Kok had been suspended

him on various occasions about

bitration award finding that the

states that the definition is limited to the extent

and the question therefore was whether the sus-

his position, and that he had had

employer had unfairly suspend-

that any suspension that takes place outside the

pension was fair or not.

the option of submitting weekly

ed the services of some employ-

realm of disciplinary action is to fall outside the

negative test results. He had

ees. The employer argued that

ambit of the LRA.”5 To accept otherwise would

The arbitrator could find no fault with the

made use of this option on some

there had been no suspension,

lead to an absurdity, in that an employer would be

procedures followed by the employer. As in

occasions but was no longer

as the reason for the suspension

free to suspend an employee for a reason other

the Goldrush matter, it had conducted a risk

willing to do so as he had to pay

did not accord with the defini-

than a precautionary suspension or punitive

assessment which complied with the guidelines

for the tests.

tion in s186(2)(b) of the LRA, being

sanction, without protection for the employee.

and procedures set out in the Consolidated

neither precautionary pending

In order to give effect to the right to fair labour

Directions, and made accommodations where

opposing

disciplinary proceedings nor a

practices in s23 of the Constitution, the court

it could. In Kok’s case, it had offered him an

views on whether Kok had been

punitive sanction, and it was set-

had to endorse a less restrictive interpretation of

alternative to vaccination, that is to provide a

suspended or not, the arbitrator

tled case law that those were the

‘suspension’.

weekly negative test report.

rightly first considered whether

only two types of suspension. As

Kok’s claim accorded with the

such, the Council had not had

definition of a suspension in

jurisdiction to entertain the dis-

terms of s186(2)(b) of the LRA3. This

pute.

Given

confirmed

the

parties’

that

would go to the issue of jurisdiction.

The court per Prinsloo J found no merit in that argument, holding

In City of Tshwane Metropoli-

that the case law confirming

tan Municipality v South African

that

Local Government Bargaining

precautionary or punitive had all

suspension

could

be

Footnotes 3 Section 186(2) of the Labour Relations Act 66 of 1995 provides that: ‘Unfair Labour Practice” means any unfair act or omission that arises between an employer and an employee involving (a) … (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; 4 Case no: JR795/18 (decided 15 October 2021)

“

Applying the logic of the Tshwane judgment, the arbitrator found that Kok had been suspended and the question therefore was whether the suspension was fair or not

Unlike in Goldrush, the arbitrator in this case engaged extensively with Kok’s claim that in terms of s12(2)(b) of the Constitution6 he could not be forced to vaccinate. While noting that the CCMA could in general not determine constitutional issues, the arbitrator found that in order to decide whether the suspension was fair, it was necessary to consider the

Footnotes 6 At para 38.

6

Everyone has the right to bodily and psychological integrity, which includes the right-b) to security and control over their body.

Contents Contents Page Page

42

factors set out in s36(1) of the

depriving them of their freedom.

Perhaps the most relevant finding made by

To sum up, the arbitrator concluded that Kok

Constitution that must be taken

In accordance with the reasoning

the arbitrator though was that the aim of vac-

had been suspended but was not a victim of

into account when deciding

in these judgments, the arbitra-

cination was not only to protect Kok but “to en-

any unfairness as far as his constitutional right

whether it would be justifiable

tor found that the public interest

sure a safe working environment for everyone

was concerned, and that the employer was

to limit a right in the Bill of

outweighed the right to bodily

and protect lives and livelihood.” This was not

justified in requiring him to be vaccinated for

Rights. In doing so, the arbitrator

and psychological integrity in

only a common law principle but was encom-

the purpose of providing a safe working envi-

had regard to judgments that

certain instances. In the present

passed in the Occupational Health and Safety

ronment. It was also an important factor that

dealt with the limitation of the

case, there were compelling rea-

Act (OHSA)10, which amongst others imposes a

the employer had followed due procedure and

rights in s12 of the Constitution.

sons to limit the applicant’s right,

duty on employers to take reasonably practical

offered Kok the option of testing weekly as an

In Minister of Safety and Security

notably because the vaccine had

measures to provide and maintain a working

alternative to vaccinating.

and Another v Gaqa8, for example,

been shown to successfully limit

environment that is safe and without risk to the

an individual was forced to

severe illness and transmission

health of its employees. As far as the arbitrator

Two questions arise:

undergo surgery to remove a

and it was clear that there was

was concerned, the requirement to vaccinate

bullet lodged in his leg, despite

only a very limited chance of ad-

was a “reasonably practical step” that every

having refused consent thereto.

verse side effects. As such, there

employer is “required and compelled to take”.

Similarly, in Minister of Health

was a clear relation between the

Finally, the arbitrator noted that private secu-

of the Province of the Western

limitation and its purpose. Less

rity services are designated as an essential ser-

1

9

Cape v Goliath and Others

restrictive measures such as face

vice in terms of the Disaster Management Act

provide comprehensive reasons and analysis

the court ordered individuals

masks were already in place and

and for the economy to survive it was crucial

for

who had been diagnosed with

it appeared that vaccination was

for the economy that front-line or essential ser-

references. But is the finding of a suspension

highly infectious drug-resistant

“almost a last resort in curbing

vices were delivered with as little as possible in-

correct? Prinsloo J’s extension of the ambit of

tuberculosis to be admitted to

the evil of 2019”.

terference and interruption. Linked to this was

suspension as defined in the LRA makes logical

a clear commercial rationale for the employer’s

and constitutional sense, but having been

decision, as it could not afford to have its oper-

given the option to be tested weekly, Kok had

ations affected by closures.

an election whether he could report for duty or

7

hospital against their will, thus

Footnotes 7 These are (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

8 [2002] ZAWCHC 9 9 2009 (2) SA 248 (C)

Footnotes 10 Act 85 of 1993 (Section 8)

Was the applicant suspended?

No doubt conscious of the import of his finding, given the paucity of precedent

thus far, the arbitrator was at pains to his

decision,

including

substantiating

Contents Contents Page Page

43

2

Is the constitutional right to security in

Notwithstanding, it is suggested that the

and control over the body applicable?

process of deciding the fairness or otherwise of

In both Goldrush and the present matter,

any sanction imposed on an employee by reason

an employee is engaged, and

the applicants relied on their right to security

of his or her refusal to be vaccinated involves a

in Tshwane is relevant. In that

agreed with the company that

in and control over their body in s12(2)(b) of

similar process as that outlined in s36(1). As Brand

matter the employer suspended

by refusing to be vaccinated,

the Constitution. In his analysis, the arbitrator

J (as he then was) put it in Dotcom Trading 121

the employees’ services because

the applicant had made herself

accepted that the employer had limited Kok’s

(Pty) Ltd t/a Live Africa Network News v The

they refused to sign a new

incapacitated. This had made

constitutional right to bodily integrity, albeit he

Honourable Mr Justice King N.O. & Others [2000]

contract with different terms and

her dismissal fair. Perhaps had it

found there were compelling reasons for doing

4 All SA 128 (C):

conditions, after their previous

been given time, the employer

so. It is however doubtful whether this right is

fixed-term contract had expired

would have followed the same

applicable in the circumstances. The employees

“The application of section 36 involves a process

and they had continued to work.

route with Kok (although as it

were not being physically forced against their

of the weighing up of competing values and ul-

The court found it questionable

happens it appears that he was

will to be vaccinated; in other words, they had

timately an assessment based on proportionali-

whether that could be regarded

later “properly” suspended on

an election whether to vaccinate or not, albeit

ty which calls for the balancing of different inter-

as a fair reason for suspension

the grounds of some or other

certain consequences flowed from their decision

ests. Inherent in this process of weighing up is

but did not question that it was

misconduct). In general, that

not to. As such, the factors listed in s36(1) of the

that it can only be done on a case-by-case basis

indeed a suspension. In both

would seem more appropriate

Constitution that must be taken into account

with reference to the facts and circumstances of

these matters, the employees

than suspension, provided that

in order to determine whether a constitutional

the particular case.”

had been given a choice.

an employee has indicated that

right may be limited do not come into play in

he or she never intends to get

this scenario. Section 36(1) further provides that

The bottom line will, as ever, be whether in all

vaccinated.

instance,

a right may be limited only in terms of law of

the circumstances of a particular case, the

action be termed other than a

however, Kok had referred the

general application, or in other words, national

employer’s decision was fair.

suspension? Did Kok incapacitate

unfair labour practice dispute

legislation. At present there is no such law

himself from working? Would

only two days after he was denied

mandating compulsory vaccination.11

the “no work no pay” principle

entrance to the premises.

not, which is distinguishable from

matter, the arbitrator reasoned

a “true” suspension, where an

that

employee has no such election.

inability to do the job for which

In this regard, the court’s finding

What

could

the

employer’s

be applicable? In the Goldrush

“incapacity”

In

implies

this

an

Anne Erwin

Footnotes 11 It should be noted that the judgments cited in the Kok award were both made in terms of applicable legislation (The Criminal Procedure Act 51 of 1977 and National Health Act 61 of 2003), taking the factors set out in s36(1) of the Constitution into consideration.

Contents Page

44

Mandatory vaccination

The New Code is to take effect on the date that the Declaration of a National State of Disaster

What has stayed the same?

lapses. On the same date, the Declaration of a National State of Disaster was been extended

As with the Consolidated Direction, an

to 15 April 2022.

employer is still required to do the following in preparation of a mandatory vaccination policy:

Practically, this means is that the New Code will only come into effect once the existing

-

disaster management framework has fallen

account the relevant occupational health and

away. Until that time, it seems that the

safety legislation;

Consolidated Direction on Health and Safety

-

the vaccination of its employees (and identify

with mandatory vaccination) will still be

the dates by when employees must be fully

in force.

Given that the Declaration of a National State

vaccinated, which includes any booster doses); -

health and safety committee, or health

may not have been the intention of the drafters

and safety/employee representative, as the

at the time, particularly in circumstances

On 15 March 2022, the Department of Employment and Labour issued a Code of Practice on managing exposure to COVID-19 in the workplace (the “New Code”).

conflict with the new Adjusted Alert Level 1 regulations. But insofar as the topic of mandatory vaccination is concerned, the New Code does provide some indication (and much needed clarity) on what the intention of the drafters may have been when drafting the Consolidated Direction.

Consult on the risk assessment and policy with

any representative trade union and any

of Disaster was just extended by a month, this

where portions of the Consolidated Direction

Based on the risk assessment, identify any measures to be implemented in respect of

in Certain Workplaces (which currently deals

What has the new Code of Practice changed?

Undertake a risk assessment, taking into

case may be; and -

Make the risk assessment available for inspection by the above representatives and/or an inspector.

Contents Page

45

The employer is still required to educate employees on the

Insofar as a refusal or failure to be vaccinated is

ground. The wording of Clause 12(4) provides,

vaccines. In this regard, the employer is required to counsel

concerned, there are three key changes:

without qualification, that:

benefits associated with these vaccines, the contra-indications

There is no longer a statement of the grounds

to the vaccine and the nature and risk of any serious side effects.

upon which an employee can refuse to

“If an employee refuses to be vaccinated, the employer must-

employees on the nature of vaccines used in the country, the

be vaccinated; And finally, an employee can still refuse to be vaccinated and

(a) counsel the employee and, if requested, allow

there is a process for an employer to counsel the employee and

There is an obligation to take steps to reasonably

the employee to seek guidance from a health

refer an employee for medical evaluation, if the refusal relates to

accommodate

and safety representative, worker represent-

medical contraindications to the vaccine.

vaccination (on any grounds); and

What has changed?

If an employee produces a medical certificate attesting

that

employees

an

employee

who

has

refuse

ative or trade union official; and

contra-

(b) take steps to reasonably accommodate the employee in a position that does not require

Every employer must now take measures to determine the

indications, and the employer accepts the

vaccination status of their employees. In giving effect to the

medical certificate, or the employee is referred to

New Code, an employer may require its employees to disclose

medical evaluation and that evaluation confirms

This appears to suggest that, in all circumstances,

their vaccination status and to produce a vaccination certificate.

that the employee has contra-indications, the

an employer must look to accommodate an

This has caused much anxiety for employers who have been

employer must accommodate the employee in

employee who refuses to be vaccinated. The

uncertain if they could ask for this information. The confirmation

a position that does not require the employee to

problem with this is that it gives free rein

that an employer has an obligation to take measures to

be vaccinated.

to employees to object on a multiplicity of

determine employees’ vaccination statuses and thus, impliedly

the employee to be vaccinated.”

unjustified grounds.

the employee has an obligation to disclose this information

In the New Code, there is no reference, at all, to

is a welcome inclusion in the New Code, particularly where

constitutional grounds as the basis for refusal

As an example, an employee may seek to refuse

employees who are reticent to vaccinate often refuse to disclose

and it appears that the New Code recognises

to vaccinate solely on the basis that they want to

their vaccination status and claim that it is an unlawful request

that an employee can refuse vaccination on any

continue working from home.

(even where it is not).

Contents Page

46

If an employee can work remotely

This seems somewhat incongruent

and there is an obligation to take

with

the

ordinary

principles

of

steps to reasonably accommodate the

employment law, but until there is

employee, an employer may find itself

further clarity on this issue employers

in the position of having to reasonably

seeking to discipline employees for their

accommodate an employee who, in

refusal or failure to vaccinate (based on

essence, fails to follow a lawful and

unjustified reasons) employers should,

reasonable instruction to return to

as a measure of mitigation, explore

work (and vaccinate).

whether there is any way to reasonably accommodate the employee prior to also

dismissing them. In the flurry of cases

suggests that an employer must seek

that we have seen referred to the

to

who

Commission for Conciliation, Mediation

refuse or neglect to be vaccinated in

and Arbitration, an employer might

accordance with the instruction to do

very well be advised to employ these

so. The New Code states that one of

measures prior to the enactment of the

its purposes is to provide guidance to

New Code.

In

addition,

the

accommodate

New

Code

employees

employers seeking to accommodate employees who refuse or fail to

Lauren Salt, Employment | Executive

vaccinate against the virus.

lsalt@ENSafrica.com

Contents Page

47

New case deals with a South African worker who was fired for ‘complaining too much’ what you should know South

Africa’s

Commission

for

Conciliation,

The employee claimed that his complaints arose

the employer went out of their way to assist the

Mediation and Arbitration (CCMA) recently

from disagreement with his poor work performance

applicant. Despite the efforts of the employer, poor

rating by the employer.

work performance persisted which had resulted in the

dealt with the dismissal of an employee who

continuously

raised

grievances

low-performance rating afforded to the employee.”

at work, notes Jacques van Wyk,

“The employee had indicated that he had financial

Thereafter, the commissioner noted that the employee

director at Werksmans Attorneys,

problems and familial problems which affected

had continued to file grievances after a successful

who highlights the commission’s

his mental focus and concentration at work due to

conciliation meeting in which he had agreed to “bury

stress. He was assisted through the process of the

old wounds”. Ultimately, the relationship between the

Independent Counselling and Advisory Services

employee, his co-workers and superiors grew toxic.

The case centred on the alleged

(ICAS) and it was established that he was fit to

The employee continued to fail to follow instructions

unfair dismissal for reasons of

perform his work,” said van Wyk.

and displayed aggression.

“The employer assisted the employee who later

“Incompatibility

‘endless

continuously rejected advice and persistently raised

the employer’s disciplinary policy as a form of

complaints’ and continuously displayed

issues that had previously been dealt with. The CCMA

misconduct,” said van Wyk.

aggression to his immediate superiors.

commissioner noted that the evidence showed that

findings.

‘incompatibility’.

The

employee

lodged

had

been

incorporated

in

Contents Page

48

“The employee denied that he was aware of the provisions

The commissioner found that the employee had disrupted

in the employer’s disciplinary code making incompatibility

the harmony of the workplace, warranting dismissal. He

a disciplinary offence. This was rebutted by evidence

had been counselled but had refused to co-operate with

provided by the employer which had been affirmed by the

remedial measures or to sign minutes.

commissioner”.

The termination of his employment was the last

CCMA’s findings

resort since the employer had invested a lot of time to consider his grievances which were unfounded

The CCMA commissioner relied on the case of Jabari v Telkom

and baseless.

SA (Pty) Ltd [2006] 10 BLLR 924 (LC), in which the Labour Court highlighted important characteristics in explaining the nature

“The notion of incompatibility is nebulous but,

of workplace incompatibility. It said that:

when proven, can serve as a valid basis for dismissal. An example of this is when an

“…incompatibility refers to the employee’s inability or

employee lodges continuous grievances

failure to maintain cordial and harmonious relationships

which are unfounded or have been

with his peers, incompatibility is a form of incapacity

resolved on a previous occasion which

and incompatibility is an “amorphous nebulous concept”

disrupt the harmony in the workplace,”

based on subjective value judgments”.

said van Wyk.

Contents Page

49

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Contents Contents Page Page

50

Post-termination confidentiality restrictions Are they worth anything?

The value of post-termination confidentiality and non-disclosure restrictions on employees is often questioned, with employers (and employees) suspicious of their value and enforceability. Earlier this month, the Labour Appeal Court (“LAC”), in Arthur Owen Carolin v World Power Products (Pty) Ltd, handed down an interesting judgment confirming precisely what value provisions such as these can hold for employers.

Background

“The Employee undertakes not to disclose information, of any nature regarding the

The employee commenced employment

Company or this agreement, to any person

with World Power Products in 1990.

or organisation. Such information shall

In June 2016, an extremely strained

include methods, processes, computer

relationship had developed between the

software,

employee and the managing director

programmes,

of the company. Due to this strained

information,

relationship, the company approached

drawings,

the employee with a view to bringing

any other information which could be

the employment relationship to an end

damaging to the Company’s operations

amicably, through the conclusion of a

or which could benefit other parties to the

termination agreement.

detriment of the Company.” (our emphasis)

documentation, trade

secrets,

intellectual financial

client

lists,

technical property,

information,

or

The agreement further provided that then

before 26 June 2016, the company would

concluded. Of particular importance was

pay the employee ZAR400 000 in full and

clause 2.3 of the termination agreement

final settlement of any disputes between

which stated:

the parties.

A

termination

agreement

was

Contents Contents Page Page

51

The employee left the company on

termination agreement by sending this

10 June 2016 and duly handed in his

email to his former employer’s customers

company cell phone and laptop. On 20

and that this conduct entitled World

June 2016, the employee commenced

Power Products to withhold payment of

employment at Remcor (Pty) Ltd, a

the ZAR400 000 as per the termination

competitor of the company.

agreement.

On 28 June 2016, the employee’s attorney

Remcor, the employee sent an email

wrote back, denying that the employee

from his new Remcor email address to

had

a number of people in which he wrote;

agreement, and included an undertaking

“please see my new contact details

to delete and destroy all World Power

below”.

message

Products’ property that the employee still

Remkor

had in his possession, including business

Technologies”. The list of addressees

cards that he had accumulated while in

constituted a range of clients of his

the employ of World Power Products.

appeared

Underneath “Arthur

this Carolin

The Labour Court found that, contrary to the clear terms of the termination agreement, the employee had “disclosed information emanating from the business cards amassed during his employment, that information is clearly customer connections.

On 22 June 2016, while employed by

repudiated

Labour Court

the

termination

former employer, World Power Products.

This did not satisfy World Power Products News of this travelled fast and on 24 June

who then sought relief in the Labour

2016, World Power Products’ attorney

Court.

Customer lists have been held by our Courts to be worthy of protection and need not necessarily be embodied in the document to be construed as confidential information.”

The Labour Court held that the employee had repudiated the termination agreement which entitled the employer to accept this decision and regard the agreement as having been cancelled, which meant that World Power Products did not have to pay the employee the ZAR400 000 separation payment amount.

Labour Appeal Court On appeal to the Labour Appeal Court, the employee argued that the Labour Court should have concluded that: 1.

the employee had sent the email in question to addresses he had taken from business cards, as opposed to customer lists;

2. this source of information did not fall within the scope of confidential information and thus there had been no breach of clause 2.3 of the termination agreement; and 3. the Labour Court had erred in concluding that the employee had demonstrated an intention to repudiate the agreement, particularly because the agreement did not contain a lex commissoria clause which would have allowed World Power Products to cancel the agreement, in

addressed a letter to the employee,

the event that the employee breached

alleging that he had repudiated the

clause 2.3 of the termination agreement.

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52

Conclusion

The Labour Appeal Court did not accept the employee’s

The Labour Appeal Court also reiterated the law

argument and found in favour of World Power Products,

regarding repudiation, confirming that a repudiation

holding that:

occurs where one party to a contract, without lawful

This case highlights the importance of and value to

1.

the wording of the termination agreement was clear: it

grounds, indicates to the other party in words or by

employers of post-termination confidentiality and non-

embraced the prohibition of the disclosure of information,

conduct a deliberate and unequivocal intention no

disclosure obligations.

including client lists, and there was no suggestion from

longer to be bound by the contract. It was clear in this

the wording that a disclosure had to be regarded as

case that the conduct of the employee fell within the

It also demonstrates that disclosure of a “client list”

confidential information; and

scope of this dictum: by his conduct, the employee had

(something which is often prohibited in termination

2. the fact that the employee generated an email which was

exhibited a clear and unequivocal intention not to be

agreements and other similar agreements, like those

captured on the system of his new employer, and which

bound by the terms of the termination agreement. The

in restraint of trade) does not necessarily have to take

contained the email contacts of a range of the employee’s

other party to the agreement, World Power Products

the form of disclosure of a physical list or “phone book”

former employer’s customers manifestly constituted a

was entitled to accept this repudiation, which it did,

of client contact details. In this case, the list of email

disclosure of the former employer’s client lists. The clear

which meant that it did not have to abide by the further

addresses generated when the employee sent out an

consequence was that a list of customers of World Power

terms of the agreement which required it to pay the

email to various of his former employer’s customers was

Products was now on Remcor’s computer system.

separation payment to the employee.

sufficient to constitute a “client list” which was now in the hands of his new employer.

The Labour Appeal Court upheld the decision of the Labour

This judgment should provide comfort to employers

(dismissing

as it represents a tangible example of the actual value

the appeal, with costs), which

post-termination restrictions such as these can have

meant that World Power

for their businesses. On the other hand, the judgment

Products was not required

should sound a clear warning to employees seeking to

to pay the employee the

bypass legitimate post-termination obligations owed to

ZAR400 000 separation

former employers that doing so may have considerable

payment

negative consequences for them.

for

Court

in

the

agreement.

as

provided

termination Henry Rossouw, Employment | Executive Curtis Nhliziyo, Employment | Associate ENSafrica.com

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53

South Africa’s new privacy rules leave businesses with Covid vaccine headache

By Preeta Bhagattjee (director), Aphindile Govuza (senior associate) and Reece Westcott (candidate associate) at Cliffe Dekker Hofmeyr.

While an increasing number of South African businesses are moving to introduce Covid vaccine policies, questions have been raised as to whether a business can, in terms of the Protection of Personal Information Act (POPIA), request an employee, customer, contractor or third-party to disclose their vaccination status.

“Disclosing one’s vaccination status entails the

additional protection given its sensitive and

‘processing’ of ‘special personal information’

confidential nature, it said.

under POPIA, says legal firm Cliffe Dekker Hofmeyr.

POPIA

provides

for

very

specific

legal

justifications or lawful bases that allow for the Specifically, such information constitutes health

processing of health data. These are set out in

data under section 26 of POPIA, and is afforded

detail in sections 27 and 32. Section 27(1) deals

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54

with general authorisation concerning special personal information and

Authorisations

-

is

specifically allows a responsible party to process such data if: Processing is carried out with the consent of a data subject;

Any

public

body,

necessary

in

if

such

connection

processing with

the

Further, section 32(1) of POPIA deals with

implementation of prison sentences or

the specific authorisations concerning the

detention measures; or -

processing of health data, the firm said.

Administrative

bodies,

pension

funds,

employers or institutions working for Processing is necessary for the establishment, exercise or

Processing of such data is allowed if it is carried

them, if such processing is necessary for

defence of a right or obligation in law; or

out by:

the processing activities specified under

-

professionals,

Information has deliberately been made public by the data

institutions

and

subject.

services, if such processing is necessary

“Until legislators specifically put forward an

for the proper treatment and care of the

express right to access or process vaccination-

As such, is there a specific right or obligation in law that justifies the

data subject, or for the administration of

related health data in law, we are of the view

processing of vaccination-related health data?

the institution or professional practice

that businesses that request information

concerned;

regarding the vaccination status of their

Insurance companies, medical schemes,

employees, guests to their premises, customers

illustrate this point stems from the Consolidated Direction on Occupational

medical

and

or third-party contractors would require an

Health and Safety Measures in Certain Workplaces which obliges an

managed healthcare organisations, if such

express (and POPIA) compliant consent from

employer to take measures to screen workers/employees when they report

processing is necessary for the activities

the data subject to whom the special personal

for work in order to determine whether it is safe to allow them to be present

specified under section 32(1)(b);

information relates,” Cliffe Dekker Hofmeyr

Schools, if such processing is necessary

said.

“At the time of writing this article, the answer is no. A good example to

at the workplace,” Cliffe Dekker Hofmeyr.

-

-

scheme

facilities,

healthcare

section 32(1)(f).

Medical

and

administrators

social

to provide special support for pupils or to “The corresponding guidelines for such screening practices are overtly

make special arrangements in connection

By Preeta Bhagattjee (director), Aphindile

silent on the disclosure of a person’s vaccination status. Therefore, in the

with their health;

Govuza (senior associate) and Reece Westcott

Any public or private body managing

(candidate associate) at Cliffe Dekker Hofmeyr.

absence of a clear and express obligation in law that specifically mandates

-

the disclosure of a data subject’s vaccination status, responsible parties can

the care of a child if such processing is

only rely on the remaining justifications under section 27(1) of POPIA to

necessary for the performance of their

process them,” it said.

lawful duties;

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Contents Page

56

WHAT TO EXPECT

implemented correctly,” she said, though this was often not the case with temperature readings.

Because airborne transmission was far greater than surface transmission, the effectiveness of sanitising for controlling the virus that causes Covid was “reduced”, but it has “benefits for

When you’re expecting covid-19 restrictions to be lifted

other disease prevention — especially in the absence of running water”.

“

“Reasonable measures at this stage would include public communication that encourages good, voluntary hygiene practices such as handwashing for all, and wearing masks and socially distancing for those with symptoms

Scientists weigh in on what no longer works, what never worked, and what is still worth doing

By Tanya Farber, Senior science reporter

IN NUMBERS •

20%: The week-on-week reduction in new confirmed cases

Non-pharmaceutical interventions (NPIs)

correctly — and social distancing hasn’t

have left a footprint on our daily lives that

been that possible anyway in SA.

will stand us in good stead. But if you think they’re still preventing the spread

In sum, “with Covid-19 transmission at a

of Covid, think again.

low point now, NPIs need no longer be mandated”, Sheetal Silal, the director of

Taking temperatures at venue doors is

the Modelling and Simulation Hub Africa

described as “a complete waste of time,

at the University of Cape Town, told the

and always has been”, and sanitising

Sunday Times this week.

may prevent other diseases but isn’t doing much against Covid.

“Most of these NPIs had some value

Masks still have their place — when worn

in reducing Covid transmission when

•

2,600: Covid patients in hospital

of any airborne infectious disease, including ‘flu and colds caused by other coronaviruses.”

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57

Silal said: “Reasonable measures stage public that

would

at

this

include

For example, being maskless at an open-air theatre is fine if

look like, and the virus has surprised us a number of times, it

you’re sitting on the lawn, but when you use the bathrooms or

would be important to now work on a mechanism to switch

fetch food, a mask should be worn.

restrictions back on in case there is a signal for a new variant

communication

encourages

causing sufficient levels of severe disease,” she said.

good,

Preiser said sanitising has only a “minor role” in preventing the

voluntary hygiene practices such

spread of Covid, but it has led to “an improved level of general

“Both the signal and the level of disease severity that would

as handwashing for all, and wearing

hygiene — for example in the case of regular wiping of trolley

define it would need to be agreed on by the government.”

masks and socially distancing for those with symptoms of any

handles, which is likely beneficial for other reasons”.

airborne infectious disease, including ‘flu and colds caused by other coronaviruses.”

Shabir Madhi, dean of health at Wits University and a professor Hand-spraying, however, is “probably quite useless”, and the

of vaccinology, said NPIs were “particularly useful when we

least efficient measure of all is taking temperatures. Its only

were trying to limit the rate of infections in the context of very

Health minister Joe Phaahla hinted on Friday that the

possible benefit is to “increase awareness about Covid rather

limited immunity against the severe sequelae of Covid-19,

requirement to wear masks outdoors will be dropped when

than screening out infectious people”.

including death”.

along with the requirement that travellers entering SA must

Social distancing might be useful “in critical areas like public

But many of them were conceptualised and advocated “before

present a negative test result.

transport” but it is already not implemented nor enforced, said

we had a full understanding of the major mechanism of

Preiser, adding that he “would not want to be in a very crowded

transmission of the virus”.

the national coronavirus command council meets next week,

He said the health department was ready with its plans

indoor space even now” but there is a negative economic

for regulating Covid after the state of disaster is lifted, and

implication if limitations on occupancy continue.

We now know it is airborne and is not primarily spread through

Stellenbosch University virologist Wolfgang Preiser said he

According to Gesine Meyer-Rath, associate professor of health

direct droplets from person to person or contaminated

hopes the rules will still require masks indoors and in crowded

economics at Boston and Wits universities, it is important to

surfaces.

outdoor settings.

have a mechanism in place to reintroduce NPIs at short notice.

“Since none of us know what future SARS CoV-2 variants might

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58

“Consequently, whereas some of the NPIs could be useful to prevent other

Taking temperatures at venue doors “is a complete waste of time” and al-

diseases, they have little value in preventing Covid,” he said.

ways has been, while “social distancing has very limited use unless in the case of a symptomatic infected person”.

Implementation and adherence had been poor anyway, as shown by the fact that about 85% of the population has been infected, so it was “highly

As for limiting capacity indoors, Madhi said, “there is a possible case to be

questionable” whether regulations on NPIs achieved much.

made” when transmission is high, but it should not be routine.

85%

of the population has been infected Sanitising should become a “permanent fixture” because it protects against enteric diseases — those related to the intestines.

“We have extensive population protection against infection [from past infection and vaccines], and it would be foolish to still believe that we are trying to prevent infections,” said Madhi.

Measures are needed to protect high-risk groups when there is heightened intensity of virus transmission, and these include “ensuring they and others are adequately vaccinated”.

— Additional reporting by Amanda Khoza

59

Could employers who don’t offer remote working lose valuable It appears from recently released research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working, writes employment lawyer Jacqui Reed.

The media reported on two recent studies conducted in the United States of America, which found that the significant majority of white collar employees would prefer to work from a location of their choice, rather than their employer’s offices.

A poll conducted by management consultancy, Advanced Workplace Associates, found that only 3% of employees wish to return to the office on a full-time basis and 86% would like to work from home at least two days per week.

Research conducted by Prithwiraj Choudhury, a Harvard Business School professor, who is an expert on remote work, shows that a hybrid workforce is more productive, more loyal and less likely to leave. With companies from Twitter to PwC now giving employees the option to work virtually forever, Choudhury said businesses that don’t adapt will risk incurring higher employee attrition.

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60

In response to what the world of work will look like in 10 years, he said: We will probably in 10 years stop calling this “remote work”. We’ll just call it work, and work is something you do, not where you go or where you live. My prediction is the process will unfold in every industry and every country. There will be a few leading companies that will adopt this and attract talent, and there will be laggards digging their heads in the sand and losing talent.

His model provides for 25% of employees’ time being co-located with the team, mentoring junior people, going out for team dinners and making memories.

Importantly, these studies only apply to white collar employees and are not applicable in respect of those employees who perform physical tasks.

What to do to remain competitive It appears from this research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working. Many employers had, in fact, embraced this concept prior to the pandemic. This was evident from the multiple requests we received from clients across various sectors to review their agile/flexible working policies and procedures to ensure compliance with their current contracts of employment.

While it was mandatory for all employees, who were able to do so, to work from home at the commencement of the pandemic, the South African government has

slowly eased restrictions over the last two years and all employees are now permitted to attend at the workplace.

Importantly, those employees who test positive for Covid-19, but are asymptomatic are not required to isolate. This raises questions regarding the employer’s obligations to ensure a safe and healthy working environment for its employees. Employers are permitted to impose stricter guidelines than those which the South African government requires, particularly in circumstances where they will be in breach of their obligations in terms of the Occupational Health and Safety Act, if they permit Covid-19 positive employees to attend the workplace and spread the virus to those who may form part of a vulnerable group.

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61

Circumstances have changed In reaching a decision as to whether it would be appropriate

-

to follow with South African government’s amendment to the regulations and permit Covid-19 positive employees, who are asymptomatic, to attend the workplace, it would be prudent for an employer to not only consult with its

-

employees on the issue, but to also review its risk assessment changed sufficiently from a scientific perspective such that the employer’s decision constitutes compliance with its health and safety obligations to its employees as well as

When determining whether to permit employees to spend the significant majority of their time (75% according to the study above) working from home or some other location, other than the workplace, the employer will need to consider a number of factors, including: -

how

the

initially

mandatory

remote

working

requirement imposed by most governments across the

example of this may be a South African law firm that

mental and physical well-being;

provides advice to clients based in South Africa, which

whether the nature of the business is such that in-

would require only South African qualified lawyers to

person mentoring, training, guidance and assistance of

perform the work. Of course, the hierarchical nature

junior employees (particularly those in apprenticeship

of a law firm is such that it would also be necessary to

or internship roles) is necessary or not;

consider the impact, if any, on trainees who are trained

whether requiring employees to work from the office

by senior lawyers and whether this training is effective

will negatively impact upon them from a financial and

in the remote work setting.

or mental and physical health perspective and/or result

and plan. This is to determine whether circumstances have

employee’s obligations in this regard to each other.

world impacted upon productivity and the employee’s

-

in direct or indirect discrimination of employees based

Importantly, and this has been the case throughout the

on gender and race. (Several studies have suggested

various iterations relating to employer’s obligations during

that a return to work with the absence of any flexibility

the pandemic, employers must consult with employees

has a negative impact on working mothers);

and all other relevant stakeholders, such as trade unions

whether employees are more productive, efficient and

and employee representatives, prior to making a decision

content working remotely or in the office; and

in relation to an employee’s workplace.

whether the employer runs the risk of failing to attract talent (particularly from other jurisdictions) because it does not implement a flexible/agile working policy

- Jacqui Reed is an employment lawyer for international law

of some kind. Of course, the nature of the employer’s

firm, Herbert Smith Freehills.

business and whether employees in other jurisdictions would be in a position to perform work for a South African-based company are relevant considerations. An

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62

How to be vulnerable at work

Without spilling every thing

By Brené Brown

How

open

should

you

be

with

your

coworkers?

These days many workplaces are encouraging their employees to be vulnerable and authentic, but opening up at work can feel precarious.

If we open up the wrong way, it can sometimes backfire but vulnerability can also bring us closer to other people and make teams stronger. The key, according to author, podcast host and vulnerability researcher Brené

Vulnerability minus boundaries is not vulnerability.

Brené Brown: So I would say you’ll never succeed in a performative culture if you don’t have some of the things that really are vulnerable, like curiosity. If you pretend like you know everything and you’re not a learner, that house of cards is going to collapse at some point.

What I think people are asking is: “How much is too much to share about my feelings?”

And that always leads me to this very simple sentence:

Brown, is establishing boundaries.

Vulnerability minus boundaries is not vulnerability.

On a special episode of the TED podcast WorkLife,

Are you sharing your emotions and your experiences to

Brené and organizational psychologist Adam Grant talk about what vulnerability in the workplace really means.

Here’s an excerpt from their perspective-shifting con-

move your work, connection or relationship forward? Or are you working your s—t out with somebody? Work is not a place to do that.

versation:

I’ll give you an example. I was working with a group of

Adam Grant: One of the fears that a lot of people carry

came up to me and said, ”I’m going to be vulnerable.

around is that if they’re vulnerable at the wrong time or with the wrong person, especially if they’re in a more performance-oriented culture at work that they might not be seen as competent. How do I figure out what the appropriate amount of vulnerability is?

newly funded CEOs from Silicon Valley. One of them

I’m going to tell my investors and my employees, ‘We’re in over our head. I don’t know what I’m doing, and we’re bleeding money.”

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63

I said, ”OK, you must have stepped out to go to the bath-

truly authentic and truly vulnerable people — personally

not having to field a lot of questions about it. That’s what

room during the part where I said vulnerability minus

disclose very little. And some of the leaders I work with

I need right now.”

boundaries is not vulnerability. We always have to inter-

disclose everything, and they are the least authentic

rogate our intention around sharing and question who

and vulnerable people.

we’re sharing with and whether it’s the right thing.”

Grant: This is totally fascinating. You’re saying that I can

He said, “You don’t think I should do it?”

Grant: That is incredibly empowering.

be vulnerable without disclosing a ton about my emo-

For more workplace wisdom from Brené and Adam,

tions or my life.

listen to their full conversation here. Plus, listen to conversations with Adam and other inspiring individuals

I said, “I think you’ll never get funding again. And I think

Brown: Yes.

like Jane Goodall, Glennon Doyle, Malcolm Gladwell and Daniel Kahneman on this season’s WorkLife with Adam

you will unfairly put the people who’ve probably left great jobs to follow you over here into a terrible position

Grant: How? I have gotten feedback from people I work

of fear. If you are literally in over your head, you should

with that when there’s something difficult going on in

absolutely share that with someone. But the question is:

my life, I don’t share much about it. My fear has been

You can also listen to the full episode with Brené and

Who is the appropriate person to tell?”

that when people know there’s something difficult go-

Adam on TED.com just click below:

ing on in my life and I didn’t open up about it, they’re Grant: I so appreciate the nuance that you bring to

going to think that I’m not being honest or authentic

vulnerability — just because vulnerability helps to build

with them or that I’m lacking vulnerability. You’re saying

trust doesn’t mean you should share everything with all

there are ways that I can maintain my privacy and still

people. And I think that’s such a common misconception.

be vulnerable. Tell me more.

Some of the most vulnerable and authentic leaders

Brown: You can say, “I’m really struggling right now. I’ve

I’ve ever had the pleasure of working with personally

got some stuff going on and it’s hard, and I wanted y’all

disclose very little.

to know. And I want you to know what support looks like for me is that I’ll check in with you if I need something or

Brown: Look, some of the most vulnerable and authen-

I may take some time off. Support also looks like being

tic leaders I’ve ever had the pleasure of working with —

able to bring it up with you when it’s helpful for me but

Grant podcast.

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64

PAID HOLIDAYS FOR THE METAL INDUSTRY

With the long weekend coming up, many companies will be wondering how to apply and interpret the

-

One-and-a-third times the hourly rate for the hours worked.

Public Holiday provisions in the Main Agreement. In this article, prepared by SEIFSA’s Industrial Relations

If an employee works overtime i.e., hours in excess of

Division, the application of Public Holidays is clarified.

the normal hours on that day, then he/she is entitled to an additional two-and-a-half times the hourly rate

All the Public Holidays specified in the Public Holidays Act are paid holidays for employees covered by the Main Agreement.

for those extra or overtime hours.

Where a Public Holiday falls on a Sunday

Employees covered by the Agreement are not required to work on a Public Holiday and are entitled

Public Holiday’s falling on a Sunday will be observed

to full pay if the day falls on an ordinary working day.

as a paid public holiday the following Monday. Em-

Companies working a Monday to Friday work week

ployees who are called-in to work on a Sunday, which

are not required to pay employees for a Public Holiday

happens to be a Public Holiday, will be paid at Sunday

if it falls on a non-working day, for example Saturday

rates i.e., double-time.

(24 September 2022) unless employees work on that day.

The one exception to this rule is where Christmas Day falls on a Sunday. Employees working on Christmas

Working on a paid Public Holiday

Day, which happens to be a Public Holiday, will be paid at the Public Holiday rate. This is due to the next

Where an employee works on a paid Public Holiday the employee is entitled to: -

The rate of pay for an ordinary shift; plus

day being Day of Goodwill.

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65

Paid Public Holidays and shift workers

Annual leave and Public Holidays

work on an elected non-working a such as a Saturday,

Difficulty often occurs where employees work a two

If a Public Holiday falls within an employee’s annual

quirements to implement this arrangement are man-

or three-shift system, especially where part of the shift

leave on a day which would have been a normal work-

falls on the Public Holiday. In such a case, the worker

ing day, then the leave period must be extended by one

will be paid for the shift before, during or after their shift

day with full pay for the day. Where Public Holiday’s fall

as if it were a paid Public Holiday. Therefore, the whole

on a non-working day then the annual leave is not ex-

shift, if not worked through the Public Holiday, irrespec-

tended.

tive of where it falls, will be paid on Public Holiday rates.

Where the employee works overtime on that particular

Public Holiday during periods of short-time or lay-off

shift, they must be paid at two-and-a-half times for the

Any Public Holiday during a period of short-time or lay-

overtime hours.

off must be regarded as falling on an ordinary working day, and the employee must be paid at the ordinary

For example, a night-shift employee starts his shift at,

hourly rate for that day.

say 18:00 on Thursday, 15 June 2022 and ends his shift on Friday, 16 June 2022. The part of the shift from mid-

Work-in-time arrangements to extend Public Holidays

night onwards falls on the Public Holiday. If the employ-

Management and employees may agree to work time

ee’s next shift starts at 18:00 on 16 June 2022, the option

in, so that designated normal working days may be

is to treat either the whole shift starting on 15 June or

treated as paid holidays, thereby extending existing

the whole shift starting on 16 June 2022 as the public

public holidays and creating long weekends. For exam-

holiday.

ple, 16 June 2022 falls on Thursday. The workforce may

in return for a paid holiday on Friday 17 June 2022. Reagement support, a 75 percent positive ballot amongst the workforce and an exemption from the Council.

Absence after or before a Public Holiday Where an employee is absent the day before or the day after a Public Holiday, the employee does not lose his/ her entitlement to be paid for the public holiday. However, this does not absolve him/her from appropriate disciplinary action if the reasons for the absence do not validate his/her absence.

Where management requires further assistance, they should contact SEIFSA’s Industrial Relations Division (011) 298-9400.

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66

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ROUCHE KLEYNHANS Gauteng Regional Manager M: +27 76 337 7894 E: rkleynhans@csggroup.co.za

JANNIE FOURIE Northern Cape Regional Manager M: +27 72 596 1655 E: jfourie@csggroup.co.za

PIETER SCHOEMAN Western Cape Regional Manager M: +27 61 065 1516 E: pschoeman@csggroup.co.za