Report of the employment conditions commission on the investigation into a sectoral determination for the forestry sector

Night work and provision of transport

The current determination stipulates that if the transport cost is more than the daily cost to the employee who is required to perform night shift, an employer who requires such an employee to perform night work must subsidize such an employee for transport expenses.
Views of employers

Some employers, especially those employing more than 10 employees, indicated that they do arrange and subsidize transport for the shifts which finish late. Other employers indicated that, although they pay for transport, employees should have the choice of either sleeping on the premises or traveling home everyday.

Views of employees

Some employees felt that employers should pay for transport, but a large number were of the view that employers should provide transport as public transport is not reliable and it is difficult to get transport at night. An example was given of an employee who uses two different modes of transport to get to work, when working night shift, the employee knocks off at 11pm catches a bus to town but struggles to get a taxi to the township which means most days she has to sleep in a police station.

The employee then catches a taxi home at 3am but after all that trouble has to be at work at 6am.

Employees employed by bigger establishments indicated that employers do arrange and subsidize transport for night shifts. They also indicated that their arrangement with employers should not be tampered with as it was more beneficial to them.

On the other hand, SACCAWU indicated that an employer should be compelled to provide and pay for transport for hours beyond 18h00. They also indicated that the sectoral determination should prohibit employees from working more than three days beyond 18h00 as this has a negative social impact. Lastly, they also proposed that pregnant employees should not be scheduled to work shifts beyond 16h00 and before 09h00.
Views of the Department

During the site visits conducted, it was indicated by employees that employers do provide accommodation to those employees who sleep at work. Transport is also subsidized by employers in the event employees have to sleep in their respective establishments. The only concern which was picked up during the consultation process was Spur Restaurants where the waiters do not get transport subsidies and also work until late without any form of compensation. Employees indicated that they suspect that this occurs because they get tips from customers and therefore can afford the transport and also not get paid for overtime.

Due to the fact that employers have already initiated the process of granting accommodation and also are required by Law to subsidize transport, the Department is of the view that the current regulation in the determination is sufficient and therefore no changes are proposed.

Views of the ECC

The ECC proposed that this matter is dealt with appropriately in the current determination and the status quo should remain.

Additional issues raised

Additional issues raised by SACCAWU

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  An appropriate definition of workers classified as domestic workers
  

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  Temporary workers should be given a clear definition with defined regulations in terms of hours of work, duration of contracts.
  
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  Introduce a full-time permanent and temporary employee ratio
  
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  Prohibit sub-contracting with linkages to core business functions
  
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  Prohibit Labour Broking
  
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  Prohibit casualisation beyond school vacations
  
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  A ratio should be introduced between internships, trainees and learnerships vs. full-time employment to avoid the substitution of full-time employment by internships.
  
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  That retrenchment should be prohibited as a response to the implementation of SD 14.
  

Views of the Department on the issues raised

In relation to the definition of domestic workers definition, the Department is of the view that the determination as it stands does define its applicability in terms of the scope of application. The matter raised here is an interpretational one and also an enforcement issue which needs to be taken up with the inspectorate division.

Regarding temporary workers, the Department wishes to indicate that the determination and the BCEA do not provide for temporary workers and therefore it is not possible to define.

Introduction of full-time permanent and temporary employee ratio is also another issue which the Department cannot regulate. It is beyond the scope of a sectoral determination. Labour laws also do not prohibit employers from employing employees for less than 45 hours.

With regard to labour broking, this cannot be prohibited under a sectoral determination. Any changes would need to be made in the enabling legislation, including BCEA. This issue also forms part of the NEDLAC’s Labour Market Review, which is currently ongoing.

Regarding the issue of prohibition of retrenchments, the Department is of the view that this matter cannot be regulated in the determination. This issue is adequately provided for in the Labour Relations Act.

Views of the ECC

On the additional issues raised by SACCAWU, the ECC is of the view that some of the issues raised relate to the implementation and enforcement of the determination and cannot be addressed at its level. Other issues would be addressed within the current labour law review process, which makes it premature for the ECC to deliberate on them at this stage.

Additional issues raised by employers

1. 
   Overtime
   

Employers indicated that the hospitality industry has fundamental problems with the re-negotiation of the agreement to work overtime in terms of Clause 10(2) one year after the commencement of the employment relationship. Due to the very nature of the hospitality industry, it is operationally exposed to the need for reasonable overtime to be worked within reasonable terms (i.e. an hotel or restaurant could typically be overrun with a conference or a few busloads of tourists over two to three days and be entirely quiet the next week). Employees who, after a year of employment, simply refuse to work any overtime during these short pressure peaks pose serious challenges on management of businesses as well as spreading an unreasonable workload on their colleagues.

Views of the Department

The Department feels that the issue of overtime was appropriately dealt with when the sectoral determination was established. In terms of Section 50 of the BCEA, employers can apply for a ministerial determination in the event that their operational requirements require deviation from the conditions specified in the sectoral determination. It is therefore proposed that this matter could be dealt with in terms of the Ministerial determination process.

Views of the ECC

The ECC supports the views of the Department relating to the request by employers to increase overtime. The ECC recommends that the current status in the determination be maintained with respect to overtime.

2. 
   Averaging of the hours of work
   

Some employers suggested that sections 13(3) and 13(4) should be removed from the provisions of the Determination. They argued that the averaging of hours of work should not lapse and that it should only be subject to a written agreement as provided for in section 13(1). They indicated that a written agreement would protect the rights of both the employee and the employer. They also indicated that the hospitality industry in South Africa, especially areas that are seasonal such as the Western Cape, Kwazulu-Natal and Mpumalanga, would benefit from the change to this clause. In particular the Game Lodges with unique shift systems rely on this clause for the shift systems to work (where employees live on the premises and work for extended periods on a trot in order to have longer periods off, which enables them to travel out from the isolated areas and have a meaningful time with their families).

Views of the Department

The Department feels that this matter is appropriately addressed in the determination. Section 50 of the BCEA allows employers to apply for a ministerial determination in the event that their operational requirements require deviation from the sectoral determination. It is therefore proposed that this matter could be dealt with in terms of the Ministerial determination process.

Views of the ECC

The ECC supports the proposal by the Department that employers can utilize section 50 of the BCEA if they cannot comply with certain provisions of the determination. The ECC therefore recommends that the current measure in the determination is sufficient.

CHAPTER FOUR

EVALUATION IN TERMS OF ECC CRITERIA

Section 54(3) of the BCEA lays down the criteria which the ECC ought to consider when setting conditions of employment and minimum wages for a particular sector.

The ability of employers to carry on their business successfully

The total number of travellers who visited South Africa through all its ports of entry during November 2009 declined -4.3 year-on-year after rising 4.6% year-on-year in October, according to Statistics South Africa (Stats SA). A total of 2.273 million travellers (arrivals and departures) passed through South African ports of entry in November 2009, made up of 654,713 South African residents and 1.618 million foreign travellers. There were 332,355 and 322,358 South African resident arrivals and departures respectively. The corresponding volumes for foreign arrivals and departures were 864,808 and 753,416 respectively. Stats SA said a comparison between the movements in October and November 2009 indicates that there was a decline in all movements. There was a decline of 11.1% from 373,807 in October 2009 to 332,355 in November 2009 for South African arrivals and a decline of 7.6% from 348,809 in October 2009 to 322,358 in November 2009 for South African departure.

Foreign arrivals decreased by 2.8% from 889,529 in October 2009 to 864,808 in November 2009. A comparison between movements in November 2008 and November 2009 indicates that there was an increase in all movements. Foreign arrivals increased by 4.5% from 827,605 in November 2008 to 864,808 in November 2009. In November 2009, road transport was the most common mode of travel used by 68% of travellers. The number of travellers who used air transport was 704,673 (31.0%). In November 2009, overseas tourists came mainly from Europe (70.6%); followed by North America (11.3%); Asia (9.3%); Australasia (4.6%); Central and South America (2.6%); and Middle East (1.6%). Virtually all tourists from Africa came from the SADC countries (96.8%), followed by East and Central Africa (1.6%); West Africa (1.3%) and North Africa (0.2%). In November 2009, an overwhelming majority (97.6%) of tourists came into South Africa for holidays compared with those who came to study (0.6%) and those on business (0.6%)

The operation of small, medium and micro-enterprises

According the President of the National Accommodation Association (NAA-SA) it appears that the last six months of 2009 was financially challenging especially to those establishments that rely entirely on clients from overseas and South Africa.  He further indicated that they are hoping for a boom during the period of the World Cup and beyond which may well result in a need for extra staff.  The NAA-SA however indicated that the challenge is to keep the interest in South Africa maintained for financial reasons and their commitment to create employment. This statement therefore suggests that the proposed wage increases will not have any negative impact on the operation of small, medium and micro enterprises.

The cost of living

Considering the current escalation in food prices, electricity, and transport, the proposed 7.1% increase and also the annual increase pegged at inflation rate plus an additional two percent will attempt to address concerns faced by those earning low wages which reduces their standards of living.

The alleviation of poverty

This is a long- term process and cannot be addressed overnight by a wage adjustment only. However, the survey by Stassa in 2005 showed that hospitality employees on average had 3 financial dependents. This means that an adjustment in the minima will impact on the lives of people other than the employees themselves.

The likely impact of any proposed condition of employment on current employment or the creation of employment

Due to the global economic down turn employers have experienced challenges in affording to effect wage increases. Although this has been across all sectors of the economy, with the hosting of 2010 FIFA World Cup employers will be in a better position and will also require additional staff during the tournament. As the employment creation in the sector is highly dependent on the demand for services, it is expected that more jobs will be created within the sector.

CHAPTER FIVE

SUMMARY OF THE RECOMMENDATIONS BY THE ECC

The following are the recommendations of the ECC:

5.1 Job categories

The ECC supports the proposal by the Department that this matter is appropriately addressed in the determination and no further changes are proposed during this time.

5.2 Demarcation

The ECC supports the proposal by the Department that this matter is appropriately addressed in the determination and no further changes are proposed during this time.

5.3 Minimum wages

The ECC acknowledges the impact of the economic downturn on the sector and also the fact that employees are also affected by the economic conditions within the sector. The ECC further notes the number of jobs lost due to the economic crisis. While acknowledging that the country may be beginning to emerge from the economic crisis, the ECC is mindful that setting the minimum wage or increases too high may result in further job losses or non-compliance with the prescribed minimum wages, both of which scenarios are not acceptable. In the circumstances, the ECC recommends that the first year’s minimum wage should be set at 7.1% higher than the current wage. The ECC recognizes that the proposed figure is higher that the current level of CPI as reported by StatsSA, but this is justified in light of the fact that the sector will derive some benefit from the FIFA World Cup.

5.4 Minimum wage increases for year 2 and 3

With respect to the minimum wage increases for years 2 and 3, the ECC recommends that wages should be increased by CPI plus 1%.

5.5 Accommodation

The ECC supports the proposal by the Department that the current status in the determination be maintained in relation to accommodation.

5.6 Sunday Work

With respect to the Sunday pay, the ECC supports the proposal by the Department that Sunday be remunerated at one and one-half times the employee’s wage for overtime worked. And that if an employer requires an employee who does not ordinarily work on a Sunday to work on a Sunday that Sunday shall be remunerated at double the normal rate.

5.7 Night work and provision of transport

The ECC proposed that this matter is dealt with appropriately in the current determination and the status quo should remain.

5.8 Additional issues raised by SACCAWU

On the additional issues raised by SACCAWU, the ECC is of the view that some of the issues raised relate to the implementation and enforcement of the determination and cannot be addressed at its level. Other issues would be addressed within the current labour law review process, which makes it premature for the ECC to deliberate on them at this stage.

5.9 Additional issues raised by employers

The ECC supports the views of the Department relating to the request by employers to increase overtime. The ECC recommends that the current status in the determination be maintained with respect to overtime.

5.9.1 Averaging of the hours of work
The ECC supports the proposal by the Department that employers can utilize section 50 of the BCEA if they cannot comply with certain provisions of the determination. The ECC therefore recommends that the current measure in the determination is sufficient.

5.9.2 Overtime

The ECC supports the views of the Department relating to the request by employers to increase overtime. The ECC recommends that the current status in the determination be maintained with respect to overtime.