What is the role of the CCMA in helping to settle labour disputes?

South Africa’s business landscape is highly competitive and is governed by legislation designed to enforce compliance.

It is important for employers to know under what circumstances a critical resource such as the CCMA (Commission for Conciliation, Mediation and Arbitration) will get involved.

The CCMA can get involved in several matters including dismissal, wages and working conditions, workplace changes, or discrimination.

It is important to note that an employee may ask the CCMA to conciliate or even arbitrate your dispute. A union or employer’s organisation may also initiate this action. Either party does not need the other party’s consent before taking the matter to the CCMA.

In the following instances the CCMA does not hear disputes where:

• an independent contractor is involved;
• the case does not deal with an issue in the Labour Relations Act (LRA), Employment Equity Act (EEA) or Basic Conditions of Employment Act (BCEA);
• a bargaining council or statutory council exists for that sector; and
• a private agreement exists for resolving disputes (for example: private arbitration).

The body has three major functions: conciliation, arbitration, and con-arb.

Employees may refer disputes about unfair labour practices and unfair dismissals on an LRA 7.11 application form to the CCMA or, where applicable, a bargaining council for conciliation. If the dispute remains unresolved, it can be referred to arbitration. The dispute can also be con-arb if there is no objection.

The company adds that conciliation is a process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement.

At conciliation a party may appear in person or be represented by a director or employee of that party or any member, office bearer or official of that party’s registered trade union or registered employer’s organisation.

The meeting is conducted in an informal way.

The commissioner may begin by meeting jointly with the parties and asking them to share information about the dispute. Separate meetings between the commissioner and each party may also be held. Parties are encouraged to share information and to come forward with ideas on how their differences can be settled. The commissioner may also put forward suggestions.

When conciliation fails, a party may request the CCMA to resolve the dispute by arbitration.

At an arbitration hearing, a commissioner gives both parties an opportunity to fully state their cases. The commissioner then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties. Attempts must generally be made to resolve the dispute through conciliation. If it cannot be resolved by conciliation, the parties can go to arbitration or the Labour Court, the Act specifies which dispute goes to which process.

This process may not be used for dismissals relating to unprotected strikes. These disputes must be referred to the Labour Court after conciliation has failed at the CCMA.

During the Conciliation and the Con-Arb process the Commissioner has the power to award the employee a maximum amount not exceeding twenty-four months remuneration in cases of automatically unfair dismissal or a maximum amount not exceeding not exceeding twelve months remuneration in cases of unfair dismissal.

The market is advised to always evaluate the precise nature and circumstances of each case against the criteria as laid out by the CCMA, prior to immediate engagement.

This will eliminate a great deal of frustration on all sides and help to streamline what are often complex, tough and drawn-out processes.

Nicol Myburgh heads up the HR Business Unit at CRS Technologies.

2018 Budget Speech: The small biz wish list

The Finance Minister’s Budget Speech for 2018/9 (21 February 2018) outlined the country’s economic growth strategy for the year to come.

Small & Medium Businesses, feeling the pressure of a tight economy, will be hoping to see initiatives from government to support entrepreneurs and enable enterprises to thrive.

Here are a few of the issues keeping Small & Medium Business owners awake at night, and some ways government could address their pain points:

1. The budget shortfall

South Africa’s budget deficit is projected to widen from 3.1% to 4.3% of GDP in the current fiscal year, tax revenue is expected to fall R50.8 billion short of earlier estimates, and government needs to find funds for free tertiary education and other unanticipated costs. Economists predict that we may see an increase in VAT, but increases in personal and corporation tax may also become a reality.

What businesses would like to hear: A VAT increase would bite into consumers’ disposable income, with a knock-on effect for the small business sector. Government should rather look for ways to increase revenues by promoting economic growth; if a VAT increase is unavoidable, it should be targeted at luxury goods and discretionary spending than at day-to-day essentials. However, bringing a tiered VAT structure in place will also complicate VAT admin for smaller companies.

2. The cashflow crunch

According to recent research, 15% of invoices in South Africa are paid late and more than 8% of payments due to the country’s Small & Medium Businesses are never made or made so late that businesses are forced to write them off as bad debt. Government departments and state-owned entities are among the organisations with a reputation for slow payment.

What businesses would like to hear: Budget Speeches have touched on this issue in the past. Small businesses that do business with the public sector would love to hear about tangible steps such as new regulations and legislation to speed up the government payment and procurement process.

3. The infrastructure crisis

Cape Town is counting down to Day Zero, when taps are expected to run dry, and the Eastern Cape is also facing a drought crisis. Meanwhile, the City of Johannesburg is struggling with frequent power outages and a massive backlog in maintenance of critical infrastructure such as its road network. These infrastructure problems are adding to the cost of doing business since companies need to ensure they are resilient enough to keep running through power and water outages.

What businesses would like to hear: Government has promised, over the past few years, to earmark billions of Rands for investment on national infrastructure. Now is the time for national government to step up with concrete plans about how it will work with local government to address the country’s infrastructural challenges. Perhaps tax relief should be on the agenda for businesses that will face existential challenges as a result of the water crisis?

4. The digital dividend

There’s a clear link between adoption of basic, low cost digital tools among Small & Medium Businesses and increased efficiency and growth. Government should look at the causes of low adoption, which range from the high costs of data to low levels of digital literacy.

What businesses would like to hear: The finance minister’s upcoming Budget Speech should focus on closing the digital divide and encouraging small businesses to embrace technology. This could include educational efforts by institutions such as SARS, which could benefit from encouraging small businesses to adopt digital accounting and payroll solutions versus sticking with old and mundane ways.

5. The productivity puzzle  

Sage’s live tracker shows that productivity losses caused by unnecessary admin are costing South African businesses R231 every second of the day – adding up to a cost of more than R585 million for 2018 to date. Businesses are still suffering from a significant burden of paperwork, which could be reduced with digital tools.

What businesses would like to hear: Government could make it simpler and faster for small businesses to register as suppliers by making more effective use of digital platforms. It could also take steps to streamline processes such as issuing tax clearance certificates and look at a minor increase in the threshold before small businesses need to register for VAT.

Supporting small business heroes

Some elements government spoke about in the 2017 Budget Speech included:

• Earmarking R3.9 billion for small, medium and micro enterprises over the next three years;
• Plans to provide 2,000 companies in this category with support from the Black Business Supplier Development Programme; and
• An above-inflation increase to the Department of Small Business Development’s total Budget allocation up to 2019/20.

Hopefully, we’ll hear some updates about those initiatives in the coming weeks.

Business builders and small business owners have a central role to play in job creation and economic development. Government should put them at the centre of its strategy to revive the country’s economy – reduced red tape, a supportive business ecosystem, and including small business representatives in policy discussions could all help to create a thriving small business sector.

Pieter Bensch is the Executive Vice President, Africa & Middle East: Sage.

Why can’t I concentrate at work?

Offices don’t just have an aesthetic impact on us: we are also influenced by how we sense sound, touch and smell at work.

Together, the perception of all these senses help or hinder our ability to focus and concentrate. And this is particularly true of sound in the workplace.

Everyone has had the unhappy experience of trying to get something important done when colleagues are making a lot of noise.

Loud noise has definitely become one of the greatest irritants at work.

Studies by architecture firm Perkins & Will showed how important workplace acoustics are to performance and satisfaction, and that good acoustic design equals good business.

In 2016 it showed statistically significant changes in creativity scores associated with different acoustic conditions.

Workers reported that they were more creative when office noise was masked “white” noise. A 2005 study on office noise and employee concentration by Banbury and Berry, showed that 99% of employees reported that their concentration was impaired by various types of office noise, especially telephones left ringing at vacant desks and people talking in the background.

Interestingly researchers also found no evidence that people become used to these sounds over time. So people don’t just get accustomed to noisy offices, they are consistently bothered. And in extreme cases it can cause them to resign.

According to another study by Witterseh et al on the effects of noise distraction in the workplace, 68% of those surveyed become frustrated when sound levels creep just above normal conversation, and they also reported increased fatigue and difficulty in concentrating.

Often the reason why background sound distracts us is because we try to work out which sound to focus on, and what sounds to ignore. If nearby speech is not relevant to your team or your work, it becomes even more distracting.

To increase concentration and in the workplace, companies should pay as much attention to acoustics in the office as they do aesthetics to create a productive workspace and keep employees happy.  

For example, introducing white noise in all areas will mask all conversations, so it needs to be applied strategically. Office spaces that have variety of individual, small group, and collegial areas can help the issue, especially when un-assigned seating is enforced so individuals can choose where they wanted to work according to their chaning attentional needs.

Increasing numbers of South Africa companies are also installing sound proof booths so people can make calls without disturbing others.

Today there are many advanced, affordable products to be used in placing acoustics in the office such as light fittings, suspended ceilings, wall coverings and office furniture. Using materials that absorb sound is key. Carpeting, screens or walls covered in fabric, acoustical panels or drop ceilings with acoustical tiles can help neutralise sound issues.

Linda Trim is the Director at workplace specialists Giant Leap.

Why should insurance embrace automation?

The mere mention of the word automation instils fear in the hearts of most employees. But it does not have to be the case.

Automation in the workplace can lead to significant opportunities across the insurance value chain.

To quote a recent Harvard Business Review article, “technology eliminates jobs, not work.” Insurers, just like companies across all industry sectors, have a choice to make. Either they can view the shift towards automation as a threat, or they can see it as the means to unlock growth potential.

Just consider how automation during the industrial revolution transformed the textile and manufacturing industries. Clearly, many people today work in textiles and manufacturing, but their work differs substantially from the weavers and blacksmiths of the 1700s. One of the important changes is the volume of output per worker which has brought huge economic benefits to all.

We consider technology that automates tasks as something that replaces human skills, human jobs, and human expertise. However, automation removes the repetitiveness of mundane tasks and leads to new jobs that require a higher level of skills or expertise. If it was not for technology, how would we arrive at such innovative jobs as data scientists?

Changing gears

Automation is more than just robots or artificial intelligence coming for our jobs. Automation will fundamentally change how business today operates and the extent at which it differentiates from competitors. A big part of this revolves around how automation can easily perform repetitive administration functions. While some might be concerned about the negative impact it will have on their jobs, the reverse is true. By giving employees additional time they would not have had previously, companies can empower them to do more advanced tasks that require better insight and strategic thought.

Many insurers still operate with a pre-internet way of doing things. Change is a slow, onerous process because the automation required is not obvious and neither are its benefits. The short-term threats to the perceived loss of work to the existing workforce create inertia that becomes difficult to overcome. The challenge is that faster, more agile insurtechs are emerging that do not fear change. Instead, they embrace it and try to use all aspects of automation to drive business performance and growth.

These fast-changing players mean traditional thinkers are losing customers who require products and services that meet their digital requirements. Automation provides a powerful tool to do so especially when it comes to data analysis and analytics as well as integrating with business intelligence solutions. This gives decision-makers more accurate, more real-time, and more relevant information to make informed decisions for product development and strategic changes.

Regulatory explanations

Some of these traditionalists are using the stricter regulatory environment (think POPI and the like) as reason for a lack of innovation and embracing automation solutions or approaches. Yet, because of regulation, insurers need to utilise technology in different ways to not only safeguard sensitive data but develop more niche solutions tailored to all clients.

Machine-learning (artificial intelligence) and automation often go together. Naturally, this could lead to some job functions becoming redundant depending on the level of automation used. Yet, despite this, those employees can be integrated into other areas of the business based on their experience and skills sets (especially when those are enhanced with additional training).

This will result in insurers focusing on jobs (and tasks) that can deliver more value-add not only internally but also to customers. Automation is not something that should be kicked against. Rather, insurers need to pro-actively take charge and utilise it for all the benefits it will provide.

Jaco Swanepoel is the CEO of SilverBridge Holdings.

Parental leave – a pending new entitlement as a minimum term of employment

Currently, South African employment laws provide minimum entitlements to specified leave types for all employees, such as annual leave, sick leave, family responsibility leave, and unpaid maternity leave of four months for female employees.

These entitlements originate in the Basic Conditions of Employment Act, 75 of 1997. A proposed amendment to the BCEA has recently been passed by the South African Parliament in the form of the Labour Laws Amendment Bill (the Bill) which would introduce, for the first time, the new leave type of Parental Leave. Although passed by Parliament, this Bill still needs to go through the National Council of Provinces and then be signed by the President.

The Bill specifies that an employee who is a parent of a child will be entitled to 10 days parental leave which may be granted from the day of the child’s birth or the day of the granting of a child’s adoption order.

The Bill does not specify paternity leave but rather makes provision for Parental Leave which could apply to both male and female employees. For this reason, the Labour Laws Amendment Bill is unclear how this Parental Leave type is going to complement maternity leave, i.e. if a female employee takes maternity leave, is she also entitled to Parental Leave? The wording of the Bill does not seem to exclude this. An explanatory memorandum to the Bill states that the intention of the insertion of the provisions is so that “an employee who is a parent and who is not entitled to maternity leave, is entitled to 10 days parental leave when that employee’s child is born or when an adoption order is granted”. The underlined wording didn’t make it into the Bill, and there is the possibility for some confusion as a result. It may be that the Bill, once assented and enacted, will clarify this position.

Adoption Leave is also provided for whereby an employee who is an adoptive parent will be entitled to 10 weeks consecutive Adoption Leave. The Bill specifies that if an adoption order is granted in respect of two parents, one parent will be entitled to Adoption Leave (10 weeks) and the other to Parental Leave (10 days).

At present however, it is clear that male employees who become a parent will now be entitled to at least the 10 days Parental Leave.

Although Parental Leave has been widely touted in the media as a paid form of Paternity Leave, this is in fact an unpaid leave by the employer. Even though there is no obligation on the part of an employer to pay any salary to an employee who takes such leave, payment to the employee will come from the South African Unemployment Insurance Fund (“UIF”) (with an additional requirement from a further amendment to the Unemployment Insurance Act by the Bill that the person must have 13 weeks of prior employment). This is a similar employer non-payment/UIF benefit structure that applies with maternity leave, which is unpaid by the employer but which entitles the female employee to claim a portion of salary from the UIF.

Largely, these amendments have been made to cater for the best interests of children in families with working and/or adoptive parents. These amendments have also provided for families in the LBGTQI community. Previously, gay men would not be able to take leave upon the adoption of a child/birth of a child carried by a surrogate due to them both being male employees. Provision of Parental and Adoption Leave provides a solution to this problem.

Bradley Workman-Davies is the Director at Werksmans Attorneys.

Why is everyone surprised the Guptas fled?

News that the Guptas are nowhere to be found in South Africa as they’re in India, attending weddings, visiting Hindu temples and visiting the South African embassy in Dubai in order to submit documents denying everything they ever did has been met with surprise on the part of many South Africans.

Why?

It is now common knowledge that the Guptas are alleged to have played a major role in capturing our former President and, with him, vast numbers of state employees and vast portions of state resources. As the truth has started to emerge as to the extent of their network, influence and actions, so it became an inevitability that they would have to be rounded up to face charges that must be put to them.

But that didn’t appear to be particularly high up on NDPP Shaun Abrahams’s list of priorities, until, that is, he realised that his then current, now former Personal Protector, Jacob Zuma, was about to exit his position. Suddenly our Shaun found his “courage” and swung into action to start proceedings against the Guptas.

Of course, to make sure that politicians and the public alike were suitably impressed with how smart and unbiased he was, acting without fear or favour, he needed to ensure that the media were duly informed as to what he was about to do. After all, that would make him look good to his new boss, President Ramaphosa. Imagine … If the President and the public knew what he was up to, they would surely applaud him when the Guptas were frog marched from their Saxonwold compound to the nearest police station.

The plan to win political and public approval in one fell swoop of the Hawks seemed foolproof. Except for one thing – the fairly big chance that the Guptas would read about it in the newspapers themselves. And, if they had two brain cells in their heads, they would have made very sure that they were nowhere to be found.

Surely “Taking Action Against Criminals 101” teaches you that, if you’re intending to take action against criminals, the last thing you should be doing is telling the media, whose duty it is to tell everyone else, including the alleged criminals, giving the said alleged criminals plenty of time to make sure they’re not at home when the Hawks and a bunch of other law enforcement people come knocking.

As I read story after story of how the Guptas were going to be arrested, I marvelled at the fact that this was appearing in the press. It therefore came as no surprise when the quarry was nowhere to be found.

Maybe I’m pointing the finger at Abrahams unfairly. Maybe it wasn’t he who told the media. It could have been one of his team who leaked the story. Whoever it was should not be working for a law enforcement agency at all as they have not the faintest clue of how to play the game not any commitment to seeing justice done.   

Surely, if you’re planning on taking action against suspects who you know have access to loads of cash and private planes, the last thing you’re going to do is let anyone know that you’re even thinking about arresting them. Do you really think they’re going to sit idly waiting for the inevitable knock on the door?

So what are the lessons we can learn from this?

1 Make sure you have competent people on your team.
2 Build a culture of trust so no-one leaks sensitive information to the media.
3 If people break that trust, take the appropriate action.
4 Focus on achieving your goal in the best way possible.
5 Actions speak louder than words. Don’t tell people what you’re going to do. Just do it and let them be the judge thereafter.

Agility is currently a word that’s being discussed in many C-suites. Agile leaders will take action promptly and appropriately. If this had been the case with the Guptas, we would be discussing their upcoming trial rather than the fact that they’re probably not going to come back to South Africa if they can help it. If you had been given the chance to skip the country to avoid the consequences of alleged criminal actions, would you?

Alan Hosking is the Publisher of HR Future magazine, www.hrfuture.net, @HRFuturemag. He is a recognised authority on leadership skills for the future and helps business leaders learn to lead with purpose and agility.

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