[PPT] - PRESENTATION: Joanette Nagel (Bcom (LLB), LLB, LLM (Labour), LLM PowerPoint Presentation

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PRESENTATION:

Joanette Nagel

(Bcom (LLB), LLB, LLM (Labour), LLM (Corporate)

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WHO ARE WE?

We are the swear word!

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$*#@?! ##@$% LEGAL????

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AND… WE ARE ALSO

We are advice: what to do and what not to do?

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AND… WE ARE ALSO

We are COMPLIANCE and ENFORCEMENT!

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AND… WE ARE ALSO

We are LITIGATION

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BUT, MOST IMPORTANTLY, WE ARE

THE FIXER

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AND WE ARE

PROBLEM SOLVERS

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AND WE ARE

We are deal closers

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WE ARE

We are there to support you!

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OVERVIEW

Hunts is a legal law firm, registered as a separate legal entity and operating as such. It does not form part of The Workforce Group of companies and is completely independent from the Group. The firm currently consist of 4 qualified attorneys (with expertise in various fields of the law), 2 candidate attorneys, a collection

fficer and assistant.

Our firm is differentiated by its focused approach on providing a service that span across all economic sectors and business activities to support your business. Our key areas of expertise includes Compliance, Labour Law, Commercial Law, Collections and Litigation. We understand your business and the complicated legislative environments in which it operates. We have a strong culture of teamwork and collaboration in order to ensure that skills are deployed to match your unique business requirements and to ensure that you remain commercially competitive by providing the best solution for you.

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VISSION AND MISSION

VISION We strive to be the best commercial and labour law practice by

ffering creative solutions to complex commercial and legal

problems by utilising our specialist knowledge of the law and the environments in which our Clients (YOU) operate. MISSION

To be the best commercial and labour law firm and to bring

creative solutions to complex legal, commercial and litigious matters

To provide specialist legal advise and services by ensuring

that we remain specialists in the environments in which you

perate
Building trust relationships to ensure practical solutions for

business continuity and commercial opportunity

To ensure effective litigation management that is cost effective

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CORE VALUES

Risk Management
Risk assessment and mitigation
Quality
Quality work and service to ensure our advice/solution is

right for your business and enables you to remain commercially competitive

Integrity
We value relationships and trust, and therefore render our

services in a professional and ethical manner

Corporate Partnership
We

have an innovative team who is committed to excellence in order to ensure that we present the best advice and solutions to you

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BENEFITS

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We understand your business
We focus as much on the commercial and
perational side as we do on the legal side
We are experts in the TES environment

and staffing solutions

We are commercially focused to ensure

that you get the best possible deal

We are innovators in creating new solutions

within the legislative frameworks

We

are at your doorstep and always available

Huge Cost saving (less than 1%)
Risk mitigation (protecting your business)
We ensure that you know how to be

compliant

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PAST ACHIEVEMENTS

Experts (and leaders) in the LRA and Amendments
Litigation Claims vs Settlement and Saving
2015/2016: Claims worth R15 million and we managed to recover

R12,1 million in settlement arrangements or otherwise

2015/2016: matters instituted against the Group worth R11,9 million

and managed to get them settled or otherwise at a cost of R2,2 million (R9,7 million saving)

Collections
2015:

R8,5 million

2016:

R1,5 million

2017:

R3,6 million TOTAL: R13.5 million over the past three years

Negotiating and finalising Agreements and SLA’s to the

value of R90 million in 2015/2016, whilst another R70 million worth were still being negotiated

On average less than 1% of the capital amount is spent on

legal fees or disbursements

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FUTURE ENDEAVOURS

Commercial Focus
Compliance with legislation
Solutions that work for business

and business continuity

Focus
n

client and trust relationships in negotiating contracts to achieve the most favourable result for the Group

Continued

support in enable synergy across all business units

Creative

and innovative commercial solutions for complex business environments

Effective

Litigation and cost management

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FUTURE ENDEAVOURS

Risk Mitigation
Compliance
Commercial procedure
Process and procedure
Compliance over all sectors
Litigation strategies

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COMPLIANCE

Competitions Act
Basic Conditions of Employment Act (BCEA)
Compensation for Occupational Injuries and

Diseases Act (COIDA)

Consumer Protection Act (CPA)
Employment Equity Act (EEA)
Employment Services Bill
Labour Relations Act (LRA)
Occupational Health and Safety Act (OHSA)
National Credit Act (NCA)
Protection of Personal Information
Promotion of Access to Information Act (PAIA)
National Minimum Wage Act (NMW)

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1

Section 198 of the LRA

Regulates all forms of NON-STANDARD employment, which includes TES (Temporary Employment Service), Temporary Service, FTC (Fixed Term Contract), Part time employment and general provisions

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The role of TES

A TES procures and provides an Assignee to the Client to perform work at the Client, but who is still remunerated by the TES

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Who is the employer?

Irrespective of the “Deeming Provision”, the TES remains the employer of the Assignee in terms of Section 198(2) and for purposes of BCEA, Tax Laws, UIF, SDA, etc.

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Joint and several liability

The TES and Client is jointly and severally liable if the TES contravenes: Collective Agreement, Binding Arbitration Award, BCEA, Sectoral Determination

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Treatment of Assignees?

Assignees must, on a whole, not be treated less favorable than any

ther employee performing the same or similar work

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Justifiable reason for different treatment?

Justifiable reasons for differentiation are: Seniority, experience, length of service, Merit, Quality or quantity of work, any other criteria of a similar nature

OVERVIEW: LRA AMENDMENTS

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Temporary service Fixed term contract Requirement

Less

ss t than an 3 3 months

Substituting f

for

r a

anot

ther employee

e

Category d

determined a as temporary s y service

Nature

* * Limited / definite d duration

n; OR

* * Justifiable r reas ason

Termin

inatio tion * * Fixed ed d date e * * Occurrence of e event * * Com

mpletion
n o
f t

task

Risk

Deemin

ing P Provis isio ion

Equal w

work for e equal p pay ay

FTC

TC i is s not f for a a ju justifiable r reason

Assignee is d

s deemed t to b be e employed o

n an

an i indefinite b basis b by the Client

Equal w

work for e equal p pay ay

Exemption

Earning a above Threshold (R20 205 4 5 433 p 3 p/a) /a)

Earning a

above Threshold (R20 205 4 5 433 p 3 p/a) /a)

ER w

with l less t than an 1 10 E EE’s

ER w

with l less t than an 5 50 E EE’s a and

perat

ating less t than an 2 2 yr yrs.

Permitted b

by statute, s sect ctor

ral d

determination

n o
r b

bargaining council a agreement

OVERVIEW: LRA AMENDMENTS

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LC (BRASSEY) JUDGMENT LAC JUDGMENT WHAT DOES THIS MEAN FOR YOUR BUSINESS?

Dual

al Emp mployme ment Relat ationship bet etween een the Client, the TES ES an and the emp mployee after 3 months

Only

ly for

r purposes of
f the LR

LRA

Clie

lient is is the sole le Em Employer by la law af after 3 months

Th

There is is no sectio tion 197 97 Transfer but a “statutor

ry emp

mployme ment relat ationship”, which is is not

t expla

lain ined or

r clarifie

ied by the LAC LAC.

THER

ERE IS IS NO NO TRANSFER ER

Should the TE

TES contin inue to,

, fo

for ex example, e, pay ay the em employee, ee, the em employee ee will ill still ll hav ave the righ ght to in institu titute proceedings agai ainst st ei either er the TES ES or

r the Clie

ient or

r both
Th

The legal al interpretation of

f “deeming” wa

was neve ver considered by the LAC LAC

LAC

LAC does es not explai ain the contrac actual al or

r

statutory oblig ligati tions an and it it ju just evapor

rates
Only

ly ap applicab able to em employees es wh who earn under the threshol

ld

(le less than an R205 05 433 433 per an annum)

LAC

LAC ju judgment is is suspended pending the ou

utcom
me of
f the

Constitutional al Court Judgment (s (s18 18(1) Superior Courts Act)

Status quo remai

ains (Bras assey Judgment)

Legitim

itimate te FTC TC are still ill permis issible le

Sectio

tion 198 198(1) and (2) of

f the LR

LRA is is still ll the la law, i.e. the employ

yee is

is still ill the emplo loyee of

f the TES

ES

TES

ES is is stil ill the em employer er for

r purpose

ses of

f BCE

BCEA (an and the legis isla latio tion cannot be interpreted in in confli lict wi with on

ne anot
ther)
Par

artner wi with a complian ant TE TES provider wh who understands the in intr tric icacie ies of

f ev

ever er chan anging and compli licated lab abour le legislatio ion (SLA, A, etc.)

ASSIGN SERVICES UPDATE

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NATIONAL MINIMUM WAGE

20

R20.00 p/h (EXCLUDING BENEFITS) for a

40 hour work week

Exceptions:

domestic workers (75%), farm workers (90%)

Proposed Implementation: 1 May 2018
DOL

roadshows and information sessions seem to indicate the following:

Learnerships are excluded
R20.00

p/h to include Employee’s contribution to benefit, but excludes the Employer’s contribution

Sectoral determinations to be phased
ut over a period of 3 years
Exemptions:
determined on an individual basis
No process/criteria (NOT 30 DAYS?)
Minister to issue regulations
No automatic exemptions
Estimated job losses: 700 000 to 800 000

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QUESTIONS AND ANSWERS

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THANK YOU

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Joanette Nagel Joanette@huntsattorneys.co.za 011 532 0250 (ext. 3661)