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Global Business Solutions
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Leading national labour law and human resources consultancy
Leading national labour law and human resources consultancy

33 followers
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Labour Court Rules in favour of Constitutional Rights to Maternity benefits for surrogates and adoptive parents including those in same sex partnerships:
 
The Durban Labour Court on Thursday handed down a landmark judgement setting a new precedent in respect of maternity benefits and entitlements as per the BCEA which was previously premised solely on the basis that only woman were caregivers of children.
 
The applicant in this matter (who may not be named as a consequence of applicable legislation) entered into a court approved surrogacy agreement with his same-sex union partner whom he married in 2010. As a primary caregiver, the applicant applied for 4 months’ paid maternity leave as per his employer’s policy and which leave initially was rejected with the employer subsequently only offering the applicant 4 days’ family responsibility leave.
 
Upon a further application from the applicant, the employer granted 2 months’ maternity leave as the employer argued that part of maternity leave is for and in respect of a 4 week pre-partum period to prepare for birth as well as a 6 week post-partum period for physical recovery from birth and then ultimately 2 months to focus on caring for the child.  The employer therefore argued that surrogate and adoptive parents could therefore only have 2 months’ maternity leave and that this could not amount to any form of discrimination.
 
The court expressed the view that the entitlement to maternity leave cannot solely be linked to the health and welfare of the parent but must also extend to the best interests of the child and that any failure to do so would be in contravention of the Bill of Rights and the Children’s Act. The court stated further that there should be no reason why the applicant is not entitled to maternity leave equal to that of natural mothers as our law recognises same-sex marriages as well as regulates the rights of parents who have entered into surrogacy agreements. The employer was ordered to pay the employee for the 2 months’ maternity leave he was not allowed to take, however, short of awarding damages. The effect of this judgement undoubtedly has far reaching implications in both public and private spheres of business, in that employers would have to rework their respective maternity leave policies.
 
Questions?
Inbox me at Denver@globalbusiness.co.za

Denver Brandt
Global Business Solutions

CCMA Rules & Arbitration Guidelines promulgated. Effective from 1 April 2015

Dear Reader,
 
The rules of the CCMA and the arbitration guidelines on misconduct have been gazetted. Please note that both the rules as well as the arbitration guidelines will come into effect on the 1st April 2015.
 
All matters that were referred to the CCMA in terms of the old rules (before 1st April 2015) will be dealt with in terms of the old rules. All new matters referred on and after 1st April 2015 will be dealt with in terms of these new rules.
The same principles mentioned above will equally apply to the arbitration guidelines. 

We will be updating our website with the full summary next week.

Regards
Jonathan Goldberg 

Jonathan is a nationally acclaimed consultant, lecturer, attorney and author on matters relating to Labour Law, Industrial Relations and Broad-Based Black Economic Empowerment. 

Dear Reader,

The Administrative Adjudication of Road Traffic Offences Act (AARTO) is a piece of legislation that has been around for some time, but is yet to be fully implemented.  There are however some pilot projects where the implementation of the legislation has been tested.

Some of the objectives of the Act are: 
• to increase road safety;
• sets out the consequences for the operation of an un-roadworthy vehicle, or a vehicle without a license or the driving of a motor vehicle in a negligent manner;
• allocate points to a driver’s license depending on the nature of the offence committed;
• should a driver have 13 points on their license they will be prevented from driving.
The full implementation of this legislation has been plagued by delays.
The Department of Transport keeps assuring us as members of the Public that this legislation is coming.

So what does all of this have to do with Labour Law and the employment relationship?  
One’s ability to drive is considered in this day and age to be virtually indispensable in order to be employed. 
• You either need to get yourself to work, even if you do not drive to do your work.  (accepting that many people rely on taxis and public transport to do exactly this), or
• You need to be able to drive to be able to do part of your job, or
• Your ability to drive is considered to be the main feature of your job.
Should one no longer be able to drive as one has acquired 13 points on one’s license, this would render one incapable of driving and thus potentially incapable of doing ones job in part or at all.  Clearly this has an impact on the employment relationship.

For this reason we strongly suggest that employers prepare policies to deal with this unfortunate but likely consequence.  We can assist you with regards to the development of such a policy as well as training your staff as to how to implement such a policy.
We expect this legislation to come into full effect shortly.

Regards
Dave

Workplace Skills Plan
All companies with payroll exceeding R500K per annum are required to contribute 1% of their skills levy in terms of the Skills Development Levies Act.

As such these companies are required to submit training plans or Workplace Skills Plans (WSP) detailing training for the next 12 months. Those companies that have already submitted their WSP in the previous year need now show the progress of training that they have already completed. This is referred to as the Annual Training Report (ART).

Previously, levies grant claims have been amended to encourage companies to have training that is meaningful  and developmental for their employees. Companies now have to submit a PIVOTAL (Professional Vocational Technical Academic Learning Programs) plan. This training is also in line with the B-BBEE Skills Learning programmes.

For a company to qualify for BEE scorecard points they need to have submitted a WSP and ATR. There also needs to be proof of submission and registration with the SETA and skills levy contribution payments.

Furthermore, the amended B-BBEE Codes have made the skills development element a priority area. This means that failure to meet the sub-minimum target of 40% spend will result in your company's BEE scorecard level dropping.

Ensure that your WSP and PIVOTAL plans are aligned to your BEE requirements. This will save you headaches during your BEE verification process. Global Business Solutions have been assisting companies with their WSP for many years.

Let us help you with the submissions.

For any further enquiries kindly contact marianne@globalbusiness.co.za


Written by
Thembi Chagonda
MD

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CAPACITY BUILDING IN LABOUR LAW
(Four Day Workshop broken up into two parts to suit your working schedules) 19-20 MARCH 2015 and 18-19 JUNE 2015


Workplace law is challenging

Most shop stewards, supervisors, payroll clerks and HR administrators are thrown into the deep end and have to sink or swim when it comes to their functions relating to employment relationships.  
 
Do these key role players in your organisation understand the basics relating to the regulations of hours of work, overtime, sick leave, absenteeism, employment equity, skills levies and the like?
 
By capacitating them you will save money.  Better controls in terms of timekeeping, overtime payments, leave expenses and absenteeism and less disputes due to a lack of understanding.
 
Our Capacity Building in Labour Law Workshop is offered over a period of four days – two days in March and the other two in June because we understand that you need them to be at work.  For more info, click on the link below.
 
 

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SABPP and ETDP SETA - accredited
Skills Development Facilitator Training


Annual Workplace Skills Plans and Training Reports
are due for submission 30 April 2015
 
This means that this skills report will be used: 
• at your next BEE Verification using the new BEE Codes.  Have you aligned your Workplace Skills Plan with your BEE Strategy?
• to establish how much, if anything, you will receive back from your SETA on skills levies paid
• to determine whether you are participating in the correct pivotal programmes which will maximise your skills grants
The responsibilities of the Skills Development Facilitator is becoming increasingly onerous – are you skilled for this function?
  
Register now for our Skills Development Facilitator Workshop
 presented 23-26 March 2015

Introducing the importance of leadership
  
Today for CEOs to declare that “our employees are our greatest asset,” has become almost routine. The modern world, the speed of communication and the ability to copy or duplicate new ideas quickly has dramatically reduced the impact of innovation on organisations success. As a result really successful companies are increasingly acknowledging that their competitive advantage lies in the hands of the employee within the organisation and the level of commitment and service they provide to the customer.
The recognition of this importance is anticipated to accelerate in the future. If this is true, then the need for effective organisational leadership will become crucial to an organisation’s performance.
All recent research into the importance of leadership supports this. The conclusive result of this research shows that effective leadership or the lack thereof plays a large role in ultimate organisational performance. There is reliable research which shows that there is a direct relationship between effective leadership and;
• An organisation’s financial performance
• An organisations culture
• The ability for an organisation to achieve cultural change
• The ability to implement processes improvement
• The performance of projects
• The development of a  high performance-work culture
• Organisational  creativity and innovation  
• The management of organisations through economic crises and mergers and acquisitions
While modern leadership approaches focus on ideas such as leadership connectedness, employee engagement, authentic leadership and the servant leader, it also is showing the need for leaders to energize and multiply the capabilities of their employees. Many organisations however are still exercising leadership styles which were found to be ineffective 50 years ago. 
Building  an effective leadership culture in your organisation is a key challenge for senior executives. It should also be the focus of HR departments.  This is where the core of competitive advantage lies in the future.    
 
Written by
Dr Charles du Toit

Labour Newsflash

Dear All,

Writers are often exposed to the good, the bad and the ugly of Labour Law.
The recent events at the State of the Nation address were in stark contrast to a recent engagement that we were asked to attend.
Whilst the events of SONA were sadly a reflection of our social dialogue as it is, we were fortunate enough to be involved with collective bargaining as it should be. On a platform with economists and industry experts, we were tasked with addressing the negotiating parties in a Bargaining Council prior to the negotiation.

It was refreshing to see how well received the discussion around a new way of negotiation and expansion of the pie was received. One hopes that this in principle receipt will be carried through in negotiation.
South Africa's democracy is firmly entrenched in collective bargaining and social dialogue. In Labour Law the legislation encourages collective bargaining, by granting certain rights and by creating the power play structures. It is important to remember that there is no legal duty to bargain, however the system of industrial action is created to encourage bargaining.

The LRA context of collective bargaining has always favoured the system of majoritarianism.
The Labour Law Amendments pose significant challenges to the foundation of the collective bargaining structure and the principles of majoritarianism.
There were open admissions made in Parliament and the public consultation process that the amendments are aimed at easing access for trade unions in the workplaces.

Among the amendments is that of section 21 which will now allow for easier access to previously majority trade union rights under s21 for trade union representatives, leave and access to information. This contradicts the principle of a majority union situation. As example, a union with 400 members could now find themselves recognised as a majority union in a 1000 workplace rather than 500 plus 1 required in the past.
There is also a change in the definition of workplace: Workplace now may include permanent, Temporary Employment Service, Fixed Term Contract and part-time employees.

s55 (1) (4) (b) of BCEA also provides that in the event of a Sectoral Determination, the Labour Minister may provide for minimum increases on actual rates of pay. This will result in much higher wage costs where employees are paid above the minimum prescribed rate. The real risk here is job losses and employees being paid at the minimum wage.
Sadly, there have been no real provisions made by Government that restrain strike violence adequately. Government's own proposal was that a system of strike ballot be implemented, however the Portfolio Committee removed this provision. Unrestrained strike violence will be a continued deterrent to employment and direct foreign investment.

Lastly, S69 (6) (a) provides that picketing rules may apply to third parties who are not employers. ( ie mall owners )
The Ekurhuleni Declaration of 4 November 2014 is an attempt to resolve the labour market crisis.
The aim of the Declaration is to Promote employment and Strengthen Social Dialogue : Towards Transformation of the South African Labour Relations Environment.
One of the key themes of the Indaba was collective bargaining - an acknowledgement that the current system is flawed. There is a commitment to collective bargaining but there is a pressing need to strengthen  collective bargaining in every aspect of its practice from negotiation to industrial action.
The Indaba was the launch of the process of engagement through task teams to address the various issues identified and may be a precursor to a much alluded to "Labour CODESA" aimed at addressing the current volatility in the labour market.

Whatever occurs, we need to ensure that we keep abreast of developments, ready ourselves for negotiations and set structures in place to deal with strikes and the inevitable violence which may arise therein at workplace level.
Whilst one can always address the issue at a higher level and attempt to redress the system, it is essential that this process of readiness and change in mind set begins at the shop floor level.
At GBS, we always aimed at providing you with real solutions to the challenges that the labour market throws at you.

We firmly believe that we have the solutions to assist with the above issues. Hereunder are a list of services which could be of great assistance to you:
-Technical Update on the Labour Relations Act
-Negotiation Skills Training
-Strike Management Tools
-Consulting Services

We hope to see you at the various Updates across the country and wish you well 'til next time.

Johnny and Grant.

7 Breaches of the Companies Act that you must know now!
 
There’s no greater feeling to declare, to anyone who may ask what you do for a living, that you are a director of a company.  The badge of “director” is worn with pride as it speaks of status, power and influence in the company.  However most directors find out too late, that with this title, comes great responsibility and in some cases personal liability. 
 
Here we illustrate 7 of the breaches that a director may be found guilty of (in terms of the Companies Act 71 of 2008) in executing his / her daily duties.
  
1. False statements: Directors are guilty of an offence if they make or concur in making, circulating or publishing any certificate, report or statement in relation to the company which is false in any material respect.
2. Representative of company: Directors incur a personal liability on contracts where they do not specify to the party with whom they are contracting that they are contracting as a representative of the company and not in their personal capacity.
3. Liability after liquidation: The court may hold a director personally responsible for the debts and liabilities of a company if he was found to be responsible for the business of the company having been carried on recklessly or with the intent to defraud creditors.
4. Delict: Directors may be held personally liable for defamatory statements made on behalf of the company.
5. Other personal liability: Directors may be held personally liable should they issue a cheque, invoice, letter of credit or any other document which does not bear the company’s formal name.
6. Criminal procedure: Directors are deemed to be guilty of an offence committed by a company, unless they can prove that they did not take part in the commission of the offence and that they could not have prevented it.
7. Common law: At common law, the directors of a company owe the company fiduciary duties of good faith (acting in the best interests of the company) and duties of care and skill.  Directors are liable to the company for any loss it has suffered as a result of their acting outside of the ambit of their authority or, alternatively, for failure to exercise the degree of care and skill expected of them in the circumstances. Directors are also liable to compensate a company for any loss caused to it if they have used their powers otherwise than for the benefit of the company.  Furthermore, if a company suffers loss or damage as a result of a wrongful action or breach of trust or faith committed by a director or past director, any member of the company may institute legal proceedings to recover such damages or loss.
 
So when your boat finally comes in and you are offered directorship, ask yourself “Are you ready for such responsibility?” 

Written by
Anndine Dippenaar

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Corporate Governance in Africa and King IV
For years now South Africa has been at the forefront of Corporate Governance on the continent.

The IODSA recently stated on their website that “Africa’s current shortage of experienced and skilled directors is one of the chief hurdles to the strengthening of its corporate governance capabilities.”

Formed a few years ago, the African Corporate Governance Network (ACGN) aims to play a positive part in changing the African situation by conducting research on and storing information on corporate governance.

"The continuing expansion of the ACGN is good news for Africa’s growth prospects,” says Angela Oosthuizen, CEO of the Institute of Directors in Southern Africa. "South Africa is fairly mature in corporate governance terms, having released the first King Code in 1994 and with the fourth revision now underway. We are committed to making our experience available to our colleagues in the ACGN, and hope that King IV will act as a benchmark for African codes of corporate governance.”

Yes you heard right, King IV is coming

According to the website, a task team convened by the King Committee on Corporate Governance has recommended that the King Report on Governance for South Africa 2009 (King III) be updated. The task team came to the conclusion that whilst the basic content and philosophies of King III would remain in place, there was room for the Report to be enhanced to assist with accessibility and implementation, particularly for smaller entities and non-profits.

“The revised Report will contain the same excellent content with fewer principles and more succinct, specific practice recommendations. It will also be easier to implement and access thanks to technology,” says Mervyn King SC, chairman of the King Committee. The opportunity will also be used to consider the latest governance developments since the publication of King III - “Corporate governance is a journey, not a destination, so it’s absolutely right that as we consider enhancement regarding implementation that we take new developments here and internationally into account.

The timeline for finalisation of the revision is not yet confirmed but the revision will only be completed by early-2016 at the earliest. As the fundamental philosophy and concepts as currently espoused by King III will not change, companies should continue following King III as it stands. Ansie Ramalho is Chief Executive of the IoDSA and leader of the said task team.

We at GBS commend the team at the IODSA for their sterling work and wish them well on the new Report.
 
Till next time

Grant
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