On April 29, 2020, the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, published regulations in terms of the National Disaster Management Act which regulate the Alert Level 4 conditions during the COVID-19 national disaster. The regulations allow for a number of industries to return to work. There are, however, measures the employer must put in place prior to the return of employees to the workplace. One such requirement is that ‘special measures’ must be implemented for employees over the age of 60 years and those with health issues or comorbidities.
Who will be regarded as at a ‘high risk’?
There are a range of views on this issue:
- The Centers for Disease Control (CDC) and Prevention have identified ‘older people’, specifically those who are 65 years old and older, and people with underlying medical conditions as being at a higher risk of severe illness from COVID-19;
- On the other hand the World Health Organization identifies people over the age of 60 years old as ‘high risk’;
- In terms of the COVID-19 regulations, the high risk age is also 60 years and older;
- In regard to underlying health risks, the CDC has recognised people with the following medical conditions as ‘high risk: moderate to severe asthma, chronic lung disease, serious heart conditions, immunocompromised people, severe obesity, diabetes, chronic kidney disease undergoing dialysis and liver disease;
- The National Foundation for Infectious Diseases has stated that “older” adults are at risk because their immune systems are weaker.
Employer’s obligations to provide a safe workplace for returning employees
The Department of Employment and Labour published a Directive on the COVID-19 Occupational Health and Safety measures in workplaces which requires the employer to provide and maintain as far as reasonably practicable a working environment that is safe and without risks to the health of workers. The Directive requires all employers to conduct a risk assessment of the workplace which would include the employer identifying the employees at risk and the risk for transmission of COVID-19 in the work environment. The employer must notify all their employees of the content of the OHS Directive and how it will be implemented in the workplace.
The Directive requires employers to minimise the number of employees at the workplace through rotation, staggered working hours, shift systems, remote working arrangements or similar measures in order to achieve the required social distancing. The minimum required distance between employees is one and a half metres, however, the distance may need to be greater depending on the workplace or nature of the sector. If it is not possible to implement the minimum distance between workstations, physical barriers may be placed or the employee supplied with the appropriate PPE.
Employers are required to provide 70% alcohol hand sanitizers at the workplace or at any other place of work other than at home. If employees interact with the public, the hand sanitizer must be sufficient for both the worker and the person with whom the worker is interacting. The employer must take measures to ensure that the work surfaces, equipment and all areas are regularly disinfected. There must be adequate facilities for washing of hands with soap and clean water and only paper towels may be provided to dry hands. Employers must also provide each employee, free of charge, with a minimum of two cloth masks which comply with the requirement set out by the Department of Trade, Industry and Competition.
As mentioned above, the regulations require an employer to implement ‘special measures’ for employees over the age of 60 years old and those with known or disclosed health issues or comorbidities. However, the Regulations do not mention what these ‘special measures’ should be. This along with the broad range of possible risks facing this group of employees requires the employer to focus on these employees if they intend allowing them to return to work in the short term.
Recommended measures for protecting ‘high risk’ employees
A workplace readiness practice note published by the Return2work Initiative identifies people who are 65 years and older and those with underlying medical conditions, among others, as ‘vulnerable workers’. In the note it is recommended that employers implement a process to identify workers who are at high-risk of severe illness from COVID-19 and who reside with or care for those who are at high risk. This process should be included in the risk assessment of the workplace.
There are additional measures suggested to protect the ‘vulnerable worker’ such as: changing their roles and responsibilities to lower the risk of COVID-19 transmission; adapting or improving the worker’s environment; putting in place additional hygiene enablement tools; providing specific PPE appropriate to the risk identified; mitigating external risks further such as by reducing interactions with visitors or the use of public transport; and allowing them to use their annual leave or sick leave during different levels of the lockdown. The measure to be adopted depend on the particular risk factors faced by the employee.
If an employer intends to allow employees over the age of 60 years or those that have any health issues or comorbidities to return to the workplace, it would be advisable that the employer first obtain medical advice on the risks faced by the employee concerned. The advice should include directions on how to manage the risks faced by the employee, taking into account the circumstances of the workplace.
Jacques van Wyk Director and Labour Law specialist at Werksmans Attorneys
On December 23, 2019, a proclamation was published in terms of which sections 1, 2, 3, 4, 5, 6 and 7 of the Labour Laws Amendment Act 10 of 2018 became effective as of January 1, 2020.
This is in addition to those provisions of the Labour Laws Amendment Act that came into effect on November 1, 2019. While those previous amendments impacted on the Unemployment Insurance Act 63 of 2001, by providing for the payment of unemployment insurance benefits for parents who are on parental leave, the recent amendments impact, mainly, on the Basic Conditions of Employment Act 75 of 1997.
Amendments effective January 1, 2020
The Labour Laws Amendment Act amends the Basic Conditions of Employment Act by:
(1) Inserting definitions into the Basic Conditions of Employment Act, which include: “adoptive parent”, “adoption order” and “prospective adoptive parent”. The additional terms are defined in accordance with their respective definitions in the Children’s Act 38 of 2005;
(2) Providing that an employee, who is a parent of a child, is entitled to at least 10 consecutive days’ parental leave. The parental leave may commence on the day that the employee’s child is born or whichever is earlier: the date that the adoption order is granted or the date that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalisation of an adoption order in respect of that child;
(3) Providing that an employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave of at least 10 weeks consecutively or the parental leave referred to above;
(4) Providing that an employee who is a commissioning parent in a surrogate motherhood agreement is entitled to a commissioning parental leave of at least 10 weeks consecutively or the parental leave referred to above. The definition of “commissioning parent” as well as “surrogate motherhood agreement” has the meaning assigned to it in the Children’s Act;
(5) Providing that a collective agreement concluded in a Bargaining Council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with the purpose of the Basic Conditions of Employment Act and the collective agreement does not reduce an employee’s entitlement to parental leave, adoption leave and to commissioning parental leave.
So what do the amendments mean for employers?
The amendments are of significant importance in that they provide employees with the right to the above-mentioned leave and, conversely, impose an obligation on employers to provide same.
It is important for employers to adequately cater for these provisions in their policies and procedures. Employers can seek professional assistance to ensure these are updated to take into account these most recent amendments.
Jacques van Wyk is director at Werksmans Attorneys.
Whether, for the purposes of being awarded organisational rights, a trade union can include employees who are not eligible to be members in terms of its constitution.
A union cannot create a “class of membership” outside the provisions of its constitution. When a union admits employees as members contrary to its constitution, it acts outside the scope of its powers. The trade union will not be entitled to rely on those members when a determination is made whether it has the necessary representation to claim organisational rights in a workplace.
This issue was dealt with by the Labour Appeal Court (LAC) in Lufil Packaging (Isithebe) (A division of Bidvest Paperplus (Pty) Ltd) v Commission for Conciliation, Mediation and Arbitration and Others (DA8/2018) (2019) ZALAC 39 in June 13, 2019). Lufil Packaging, the appellant, manufactures printed and plain paper bags, and associated paper-derivative based packaging.
The National Union of Metalworkers of South Africa (Numsa) approached Lufil asking it to provide stop orders for the deduction of union fees from its members. Lufil refused to do so on the basis that Numsa was recruiting members outside the scope of its constitution. Numsa’s constitution covered 21 industries, none of which included the “packaging industry”.
In fact, Lufil fell under the scope of the Statutory Council for the Printing Newspaper and Packaging Industries (PNPI). Numsa is not a member of PNPI. In addition, Numsa’s constitution provided that “all workers who are or were working in the metal and related industries are eligible for membership of the union”.
In other words, if the employees do not work for an employer working in one of the 21 recognised industries, they cannot become Numsa members. Numsa approached the Commission for Conciliation, Mediation and Arbitration (CCMA) seeking organisational rights in terms of section 21 of the Labour Relations (LRA) Act 66 of 1995, which rights included the right to stop order deductions. Section 21 of the LRA allows a trade union to approach the CCMA and demand organisational rights if they have met the thresholds required for the rights sought.
Lufil argued that the CCMA did not have jurisdiction to hear the matter due to the fact that Numsa was barred from recruiting Lufil’s employees as members as per its constitution. The CCMA held that Numsa had standing to seek organisational rights in a workplace falling outside the scope of its constitution. Lufil launched an application to the Labour Court to review the decision (first review).
In the interim, the CCMA dispute proceeded to arbitration. Lufil agreed to certain organisational rights being granted subject to the outcome of the review application. The commissioner in the arbitration awarded organisational rights to Numsa finding that its members represented about 70% of the workforce. This award was also reviewed by Lufil (second review). The first and second reviews were consolidated (consolidated review application) and formed the basis of the Labour Court dispute. The Labour Court agreed with the CCMA that Numsa’s members represented about 70% of Lufil’s workforce and dismissed the consolidated review.
Lufil submitted before the LAC that a trade union cannot rely on employees who purport to be its members, if those employees are not eligible to be members of the trade union in terms of its constitution. They submitted further that Numsa is bound by its constitution and as such cannot have as members, employees who fall outside of Numsa’s own membership requirements.
Lufil argued that it operated outside the scope of Numsa’s constitution, so Numsa could not recruit its employee’s as members. If these members were discounted, then Numsa’s membership would decrease to a level too low to qualify Numsa for organisational rights. Numsa, in relying on the Constitution of Republic, the LRA and provisions of Constitution, argued that it did, in fact, have standing to claim organisational rights on behalf of its members.
Numsa argued that Constitutional rights must be interpreted generously to afford the widest ambit of protection. Restrictions on membership allows the trade union the right to limit who may join it, it is not an issue in terms of which an employer can raise an objection. The LAC agreed with Lufil. While Numsa had the right to approach the CCMA, it had to meet the prescribed conditions required to obtain organisational rights.
The LRA regulates the registration of trade unions. It provides, among others, that the constitution of any trade union must prescribe qualifications for and admission to membership (section 95(5)(b) of the LRA). Only a registered trade union may apply for the exercise of organisational rights and for the relief to obtain and enforce them. Section 4(1)(4)(b) of the LRA also provides that “every employee has the right to join a trade union, subject to its constitution”.
The LAC went on to hold that: “The obvious implication of this provision is that the right to join a trade union will be circumscribed by the membership eligibility criteria in the trade union’s constitution as adopted by the trade union’s relevant decision making body and registered by the registrar.” By necessary implication, employees who do not meet the criteria for membership cannot be members. Nonetheless, should they be admitted as members, this act will be invalid. When a registered union seeks organisational rights, it must show that it is representative in order to get such rights.
Where employees have been made members of a trade union in breach of the trade union’s constitution, they cannot constitute members of that trade union. This, in turn, impacts on whether or not a trade union has met the required level of representation within the workplace. The LAC found that, taking this into account, Numsa did not meet the required representation threshold and was not, therefore, entitled to organisational rights. The appeal was upheld.
Importance of the case
A trade union which admits employees as members in breach of its constitution cannot rely on such “members” when seeking organisational rights by way of arbitration proceedings in terms of section 21 of the LRA.
Jacques van Wyk is a director at Werksmans Attorneys.
IN an arbitration between the National Union of Mineworkers obo Donald Andile Mchunu v Tronox Mineral Sands (case number KNRB1750-18) the commissioner had to decide whether the applicant, the second best candidate, was entitled to be appointed to a vacant position because the best candidate had declined the offer.
The applicant contended that the employer should have offered him the post and – by failing to do so – had committed an unfair labour practice as contemplated in section 186 (2) of the Labour Relations Act 66 of 1995 (as amended). The commissioner had to decide whether the employer’s actions in not offering the position to the applicant were arbitrary and/or capricious.
The facts reveal that the employer advertised the position and shortlisted a number of potential candidates. The candidates were required to write aptitude tests, whereafter a number of them – including the applicant – were interviewed by a panel. The interview was conducted in accordance with a questionnaire and the applicants’ responses were scored by members of a panel. The person to whom the position was offered received a score of 55% from the interview panel, but the applicant scored 48%. The highest-scoring applicant declined the offer. No offer was made to the applicant. The applicant argued that his score sufficiently qualified him to be offered the position after the first candidate declined the offer.
The employer’s case was that in terms of the company’s recruitment and selection policies and procedures, the ultimate decision to appoint anyone lay with the relevant hiring manager, and that the results of the tests and the scores awarded by the interview panel were tools to assist the hiring manager in exercising this discretion. The recruitment process was not akin to a race in which the winner was disqualified and the runner up then awarded first place. Just because the applicant received the second-highest score did not automatically entitle him to be offered the position if the highest-scoring applicant declined the post.
The commissioner held that applicants should acknowledge and appreciate that it is not only their potential, relevant experience and/or educational qualifications on which an interviewing panellists will base their recommendations. In addition, the panel will form an impression of the candidate based on his/her responses in the interview, which will indicate how he/she understands the various attributes and skills required to perform the tasks required by the job on offer.
If that was not so, employers would have been otherwise entitled to make such a decision on candidates’ CVs only. In the current instance, the same questions were put to both the candidates, and the responses they provided assisted the interviewing panel in assessing and forming an impression of how each candidate understood the attributes and skills required to perform the duties involved. The employer was entitled to rely on these impressions in reaching a decision not to offer the position to the applicant, despite his coming second.
The arbitrator confirmed the well-established principle that one cannot easily interfere with the prerogative and discretion that an employer has in choosing who he/she considers to be the best candidate. The exercise of that prerogative and discretion should only be interfered with if the conduct of the employer could be shown to have been grossly unreasonable as to warrant an inference that they failed to apply his/her mind.
Jacques van Wyk is a director and labour law specialist at Werksmans Attorneys.