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Chapter 6 - Labour Law

Other laws that apply to terms and conditions in the workplace

Employment Equity Act (No 55 of 1998)

The Employment Equity Act (EEA) aims to create an environment of equality and non-discrimination in the workplace. It states grounds for non-discrimination in the workplace including:

• Race
  
• Gender
  
• Sex
  
• Pregnancy
  
• Marital status
  
• Ethnic origin
  
• Social origin
  
• Colour
  
• Sexual orientation
  
• Age
  
• Disability
  
• Religion
  
• Conscience
  
• Belief
  
• Culture
  
• Language
  
• Birth
  
• Family responsibility
  
• HIV status
  
• Political opinion

The EEA is important because it includes three grounds for non-discrimination that are not included in the Constitution or the Equality Act: family responsibility, HIV status and political opinion. A case can be referred to the Labour Court if an employee believes that an employer is discriminating against him or her on any of these grounds in order to:

• demote or not promote the employee
  
• block the employee from having access to training and development
  
• make an unfair distribution of employee benefits to the employee

The EEA also sets out regulations on affirmative action in the workplace to create equal opportunities for all employees and for people applying for jobs. It says that an employer who employs over 50 people or has a turnover of over a certain amount, must take steps to include and advance, previously disadvantaged groups (black people, women and the disabled) in their workforce. So, when a company makes new appointments or promotes staff, it must give ‘preferential treatment’ to properly qualified people who are from one of these previously disadvantaged groups. In other words, formal qualifications or relevant experience are not the only reasons for deciding whether a person is suitable for a job or not.

The EEA covers everyone except the South African National Defence Force (SANDF), the National Intelligence Agency (NIA) and Secret Services.

The Occupational Health and Safety Act (No 85 of 1993) (OHSA)

The OHSA gives employees specific rights in health and safety at work. It gives health and safety guidelines for the workplace to employers and gives inspectors wide power to ensure that these are being implemented. See the following website for an easy guide to OHSA and the Regulations: www.labour.gov.za/docs/legislation/ohsa/ohsbooklet.html

Who does the OHSA cover?

The Act excludes employees in mines and on ships, where other laws apply. The OHSA covers all other employees, including farmworkers, domestic workers and state employees.

The employee's duties

Employees must take reasonable precautions over their own health and safety at work. They must follow precautions and rules about safety and health. They must report any unsafe circumstances or accident as soon as possible to the safety representative. Anyone who acts in a reckless way or damages any safety measures can be charged and a claim for damages can be brought against them.

The employer's duties

The employer must make sure that the workplace is safe and healthy, and must not allow any employee to do work which is potentially dangerous. The employee must know what the dangers of the work are. The general duties of the employer are to:

• choose safety representatives
• consult with the employees' organisation about the safety representatives
• inform employees of the dangers in the workplace
• reduce any dangers to a minimum before issuing protective clothing
• issue protective clothing where necessary
• give necessary training to employees who use dangerous machines or materials, to make sure they know the safety precautions
• prevent employees from using or working with dangerous materials or machines, unless all the necessary safety rules have been followed
• ensure that dangerous machines are in good working order and are safe to work with
• make sure that dangerous machines carry warnings and notices
• make sure that someone who knows the work is supervising the operations to ensure the safety of the employees
• keep the workplace open so that employees can escape from danger if necessary
• not move any evidence of an accident before an inspector has given permission, unless someone has been badly injured and needs treatment

The Chief Inspector can ask any employer for a report of the safety precautions.

An employer cannot take action against any workers who do the following:

• give information about their conditions at work or that the Act says they have to give
• give evidence in court
• respond to any request of an inspector
• refuse to do anything that is against the law

Reporting accidents or incidents

The employer must keep a report of all accidents and safety or health incidents in the workplace. The employer must report certain accidents or incidents to the safety representative and to the Department of Labour.

Safety Representatives and safety committees

The employer must appoint one safety representative for every 20 employees. There must be at least one representative for every 50 employees. The employer must explain to the employees' organisation what responsibilities the safety representatives will have and how the representatives will be selected.

In every workplace where there are two or more safety representatives there must also be a safety committee. This committee must meet at least every three months. The committee must deal with all safety and health issues that affect employees. The safety committees have certain functions and powers. You can find out more about these in the Act or by contacting the Department of Labour.

Enforcement of the OHSA

OHSA falls under the administration of the Department of Labour. Inspectors from the Department have wide powers to search the workplace, question people, ask for explanations from an employer, and so on.

An inspector can fine a person for breaking the Act. If that person wants to appeal against the inspector's decision, they can appeal to the Chief Inspector. They can appeal against the Chief Inspector's decision in the Labour Court.

If an employee is hurt at work as a result of the employer not following a safety regulation, then that employer can be fined up to R100 000 and /or two years in prison.

Merchant Shipping Act

The Merchant Shipping Act 51 of 1951 (MSA)

The Merchant Shipping Act says that the Labour Relations Act and the Wage Act apply to all workers at sea. It also says that if there is conflict between the provisions of the MSA and the provisions of an Bargaining Council Agreement or Wage Determination, then the provisions of the Agreement or Determination will apply.

The MSA covers workers who are at sea within South Africa's territorial waters. If workers at sea are outside the territorial waters of South Africa, then an Agreement or Determination will apply to these workers:

• workers employed on a ship which is registered in South Africa
• even if the ship is not registered in South Africa, workers who are employed on a ship which spends all its time working between ports in South Africa.