EXPANDED PUBLIC WORKS PROGRAMMES SUMMIT 2014 Legal Perspective

EXPANDED PUBLIC WORKS PROGRAMMES SUMMIT 2014 Legal Perspective Ministerial Determination and Code of Good Practice

Contents • Legislation – Constitution – Labour Relations Act – Basic Conditions of Employment Act • Ministerial Determination • Code of Good Practice – Occupational Health and Safety Act – Enforcement – Emerging issue – Compensation for Occupational Injuries and Diseases Act – Unemployment Insurance Act

Conditions of Employment Code of Good Practice BCEA Ministerial determination Enforcement regime Sectoral determinations Non compliance not criminalized

Legislation q Constitution § Fair labour Practices § Freedom of association q Labour Relations Act § Fair procedures must be followed q Basic Conditions Of Employment Act § § Regulation of working time Leaves Particulars of employment and remuneration Termination of employment

Legislation cont. q Ministerial Determination § Specific to EPWP § Extent § S 10(2), S 14(3), S 29(n) to (p), S 30, S 37, S 41 and S 51 -58 § Which workers are covered § All workers who are part of what is called the “Expanded Public Work Programmes” § Conditions § Weekly Rest period – Two days p. w. § Minimum wage – R 75. 10 per day linked with inflation per annum § Termination: Fair procedures, Qualify for UI benefits.

Code of Good Practice To assist with implementation of the Ministerial determination

Purpose and application q Provides guidelines on: § Working conditions § Payment and setting rates of pay § Disciplinary and grievance procedures q Promote uniformity q Applies to all employers and employees in EPWP q Is in line with all relevant legislation § BCEA, LRA, EEA, OHS, COIDA, UIA, SDA q Must be read in conjunction with Ministerial Determination

Beneficiaries of EPWP q Locally-based (close as possible) prepared to work on specific EPWP q Spread benefits - one person per household q Not more than 20% skilled employees from other communities q Proposed targets: § 55% women § 40% youth (16 – 35) § 2% disabled § (means people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment)

Selection and participation q Local community informed and consulted about the establishment of EPWP q Criteria to target the poorest of the poor § Where head of household has less than primary school education § Household with less than one full time person earning income § House where subsistence agriculture is the source of income q Provide as many people as possible with opportunity to participate q Distribute amongst the unemployed q Forced labour is prohibited

Payment q At least the prescribed minimum rate - R 75. 10 q Annual Increase linked with inflation from 1 November q May be paid on number of tasks completed (“task-rated” workers) or daily rate q Paid on basis of time worked (“time-rated workers q If informed a day before that work will not take place the next day – not entitled to payment q Training allowance to be paid 100% when required to attend training q Written particulars to be provided q If project is completed earlier than anticipated - worker should receive agreed remuneration for the period in full.

Legislation cont. q Unemployment Insurance Contributions Act applies to EPWP. § DEFINITIONS: § Employee means any natural person who receives remuneration or to whom remuneration accrues in respect of services rendered or to be rendered by that person, but excludes any independent contractor. § Employer means any person, including a person acting in a fiduciary capacity, who pays or is liable to pay any person any amount by way of remuneration and any person responsible for the payment of any amount by way of remuneration to any person under the provisions of any law or out of public funds, excluding any person who is not acting a principal. § There is no exclusion mechanism in the Act q Health and Safety q OHSA must be complied with

Health and Safety cont. . . q. The management of an EPWP and each employer must; § ensure that all workers are informed of any risks and dangers associated with their tasks § inform and train workers about the precautions and steps that must be taken to avoid or minimise risks and dangers to them or others § ensure all possible precautions and safety measures are in place to avoid risk and minimise dangers 12

Health and Safety cont. . § not permit workers to perform tasks for which they have not been trained § provide workers with the necessary protective clothing such as hard hats, goggles, ear-plugs, boots and outer clothing required , as applicable to complete their tasks in safety. these must be supplied free of charge and must be maintained, by the worker, in a clean state and in working order for use 13

Health and Safety cont. . . qprovide First Aid Kits on site; qensure that at least one person per site is trained to act as a First Aid Officer and they are capable of providing first Aid to injured or ill workers; qprovide sufficient clean drinking water to all workers for the duration of the project; qensure that adequate sanitation is available to workers; and ensure all safety standards set are adhered to 14

Enforcement • Conscious decision not to have a directed program to inspect EPWP • EPWP programs Inspected in the same manner as with other workplaces • Whilst the level of compliance with respect minimum conditions of employment has seen a marked improvement, there are still areas that are lacking • These areas include: – OHS – COIDA and to some extent UIF

Emerging from legislative ammendments • BCEA Amendments to deal with different forms of employment: (continued nature of part time employment) – whilst the legislation recognizes the need for limited duration contracts – it sets specific criteria for this • Equal pay for work of equal value EPWP normally takes place alongside formal employment doing exactly the same kind of work. - This could emerge as a sticky issue

Compensation for Occupational Accidents and Diseases q. The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) q Administrative obligations; Every employer must; § register with the Compensation Commissioner and cover all workers in the EPWP (this is done by submitting a completed W AS 2 form); § notify the commissioner of any changes in particulars 17

COIDA o Employers must be registered with COIDA and records of employees must be kept in order for workers to be compensated in the event of accident. • Definition of employee: “Means a person who has entered into or works under the contract of service or of apprenticeship or leanership with an employer, whether the contract is express or implied, oral or in writing and whether the remuneration is calculated by time or by work done or is cash or in kind and includes…” • The service provider is responsible for payment in this scenario as they have entered into agreement with these leaners and it is responsible for payment of salaries.

Compensation for Occupational Accidents and Diseases cont. . . § keep a register of wages, time worked and payment (this is the same register described above); § submit a return of wages paid each March and § pay assessments (contributions) as required by the commissioner q Obligation in respect of accidents and occupational diseases 19

Compensation for Occupational Accidents and Diseases cont. . . q Every employer must report to the Compensation commissioner § § accidents within 7 days (W CI 3 form); and occupational diseases within 14 das (W CI 14 form) § An employer must pay a worker who is injured in an accident at work and who is unable to work 75% of their wages for a period of up to three months or until the end of the workers contract, whichever comes first. the Compensation Fund will refund the employer this money. 20

Compensation for Occupational Accidents and Diseases cont. . . • A worker who is injured in an accident that is caused by the negligence of an employer is entitled to claim additional compensation in terms of section 56 of COIDA 21

Thank You…