South Africa
Answer ... South Africa statutorily recognises maternity leave, parental leave, commissioning parent leave and adoption leave in the Basic Conditions of Employment Act (BCEA).
South Africa
Answer ... Trade unions are recognised in South Africa and play a significant role in industrial relations. Section 23 of the Constitution protects the rights of employees to form and join a trade union, and to participate in the lawful activities and programmes of such a trade union. The Constitution also places particular importance on the protection of freedom of association. The Labour Relations Act (LRA) further emphasises, protects and gives concrete content to these fundamental rights.
Trade unions have certain rights in terms of Section 8 of the LRA. These rights include, among other things, the right to determine their own constitutions and rules and to hold elections for office bearers, officials and representatives. Trade unions also have the right:
- to plan and organise their own administration and lawful activities; and
- to participate in forming federations or to join a federation of trade unions or federations of employers’ organisations.
The following organisational rights are afforded to representative trade unions:
- access to the workplace;
- deduction of trade union subscriptions or levies;
- the appointment of trade union representatives;
- leave for office bearers to attend union activities; and
- disclosure of information.
Only representative trade unions can exercise organisational rights, meaning a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace.
There is also a statutory process prescribed in the LRA in terms of which trade unions can acquire organisational rights.
South Africa
Answer ... The Protection of Personal Information Act (POPI) sets out the lawful conditions to process another person’s information. POPI regulates processes relating to the data subject, the responsible party and the operator. Information can be processed lawfully only if it complies with the extensive conditions set out in POPI, which relate to:
- accountability;
- processing information;
- purpose specification;
- further process limitation;
- information quality;
- openness;
- security safeguards; and
- data subject participation.
POPI applies to all personal and special information of an employee that employers might process. Personal information includes, but is not limited to, the following:
- information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, wellbeing, disability, religion, conscience, belief, culture, language or birth of the data subject;
- information relating to the education or the medical, financial, criminal or employment history of the data subject;
- any identifying number, symbol, email address, physical address, telephone number, location information, online identifier or other particular assignment to the data subject;
- the biometric information of the data subject;
- the personal opinions, views or preferences of the data subject;
- correspondence sent by the data subject that is implicitly or explicitly of a private or confidential nature, or further correspondence that would reveal the contents of the original correspondence;
- the views or opinions of another individual about the data subject; and
- the name of the data subject, if it appears with other personal information relating to him or her or if the disclosure of the name itself would reveal information about him or her.
Special personal information includes:
- the religious or philosophical beliefs, race or ethnic origin, trade union membership, political persuasion, health or sex life or biometric information of the data subject; or
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the criminal behaviour of the data subject, to the extent that such information relates to
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- the alleged commission of any offence by the data subject; or
- any proceedings in respect of any offence allegedly committed by the data subject.
In order to comply with POPI, employers should, among other things:
- implement a data protection policy;
- appoint information offices; and
- obtain consent from employees to process their information.
If an employer fails to comply with POPI as the responsible party, it may be subject to imprisonment for between one and 10 years or a fine of between ZAR 1 million and ZAR 10 million. In addition, the employer may be required to pay compensation to the data subject for damaged suffered.
POPI largely came into force on 1 July 2020 and responsible parties were granted a grace period of 12 months, commencing on 1 July 2020, to achieve compliance with its obligations relating to the processing of personal information and special personal information.
South Africa
Answer ... The South African equivalents of contingent worker arrangements are:
- fixed-term contracts of employment;
- temporary employment services (TES) (labour brokers); and
- independent contractor relationships.
Fixed-term contracts: Fixed-term contracts are permitted in South African labour law. However, to avoid the continuous ‘rollover’ of fixed-term contracts, amendments to the LRA were enacted – namely Sections 198B(8)(a) and 198B(5) of the LRA, which provide that an employee who is employed on a fixed-term contract for more than three months (whether on a single fixed-term contract or successive fixed-term contracts) is deemed to be a permanent employee for the purposes of the LRA and may not be treated any less favourably than a permanent employee who performs the same or similar work. Section 198B of the LRA applies only to employees who earn below the BCEA earnings threshold of ZAR 205,433.30. These deeming provisions do not apply if:
- the nature of the work for which the employee is employed is of a limited or definite duration; or
- the employer can demonstrate any other justifiable reason for fixing the term of the contract.
In general terms, an individual will be considered an employee for the duration of the contract, which will automatically terminate on the expiration of the fixed term. Automatic termination will not constitute a dismissal, unless the employee reasonably expected to renew a fixed-term contract on the same or similar terms, but the employer offered to renew it on less favourable terms or did not renew it or where an employee had a reasonable expectation of indefinite employment.
TES: This refers to relationships governed by Sections 198 and 198A of the LRA, whereby an employee of the TES renders services to a client of the TES generally for a fixed period of up to three months, where the employee is a substitute for a temporarily absent employee of another employer (the client) or as agreed in terms of a collective agreement. The LRA seeks to protect employees of a TES and particularly those who earn below the BCEA earnings threshold. Accordingly, the TES and the client are jointly and severally liable if the TES contravenes:
- a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;
- a binding arbitration award that regulates terms and conditions of employment;
- the BCEA; or
- a sectoral determination made in terms of the BCEA.
Employees who earn below the BCEA threshold will be deemed employees of the client if they do not perform a temporary service.
Independent contractor relationships: These relationships are purely commercial and involve the rendering of a service to another in the absence of an employment relationship. They are governed by standard contractual principles and not employment law. However, disputes may arise where an individual retained as an independent contractor alleges that he or she:
- is in fact an employee and entitled to certain employment benefits; or
- has been unfairly dismissed at the termination of the contract.
The South African courts will consider the substance of the relationship between the parties, rather than the contractual characterisation of the relationship, in order to determine the true nature of the relationship. In addition, Section 200A of the LRA presumes that a person is an employee if he or she renders services to another and one of seven factors is met. This presumption is rebuttable.