Residential Estate Industry Journal 3 - Page 40

LEGISLATION PAGE 38 RELATIONS LRALABOUR ACT Fixed-Term Contracts and the amended LRA – What to do? With the inception of the Labour Relations Amendment Act 65 of 2014 on 1 January 2015, new protection is afforded to employees on fixed-term contracts. The amendment Act’s provisions, which now regulate fixed-term contracts of employment, are provided for in the new section 198B. This section does not apply to employers who employ fewer than 10 employees, or to employers who employ more than 50 employees during the first two years of the employer’s business, or to employees earning more than the statutory remuneration threshold of R 205 433.30. It also does not apply to employees employed in terms of a fixed contract which is permitted by any statute, sectoral determination or collective agreement. An employer is permitted to employ an employee to whom the new section applies on a fixed-term contract or successive fixed-term contracts for up to three months. (The meaning given to the word “successive” will be critical – there is no specific explanation or provision to the effect that fixed-term contracts may or may not be interrupted by a certain period of time when calculating the three-month period. The probable interpretation will be that the collective duration of separate fixed-term contracts will be utilised to determine whether the three-month period has been exceeded.) The employer may employ the employee on a fixed-term contract or successive contracts for longer than three months only if the nature of the work for which the employee is employed is of a limited or definite duration or if the employer can demonstrate any other justifiable reason for fixing the term of the contract. (This should surely read “contract or contracts”). Section 198B(4) sets out a non-exhaustive list of justifiable reasons for fixing the term of the contract. Employment in terms of a fixed-term contract concluded in contravention of section 198B is deemed to be of indefinite duration, unless the nature of the work is of a limited or definite duration or the employer can demonstrate any other justifiable reason for fixing the term of the contract. An employee employed on a fixed-term contract (this should no doubt read “contract or contracts”) for longer than three months must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment. This provision on treatment applies three months after commencement of the amending Act, i.e. on 1 April 2015, for fixedterm contracts of employment entered into before the commencement of the amendment Act. (One would think that this provision on treatment would only become effective after the employee is deemed to be permanent, or at least after any longer justifiable duration, as is permitted – but that is not the way the relevant subsection is worded.) Employees employed on fixed-term contracts of employment must now be afforded an equal opportunity to apply for vacancies. Section 198C also introduces new provisions in respect of part-time employees. There are therefore a number of urgent considerations to be dealt with by employers LEGISLATION LRA PAGE 38 LABOUR RELATIONS ACT Fixed-Term Contracts and the amended LRA – What to do? can demonstrate any other justifiable reason for fixing the term of the contract. (This should surely read “contract or contracts”). Section 198B(4) sets out a non-exhaustive list of justifiable reasons With the inception of the Labour Relations for fixing the term of the contract. Amendment Act 65 of 2014 on 1 January 2015, new protection is afforded to employees on Employment in terms of a fixed-term contract fixed-term contracts.  concluded in contravention of section 198B is deemed to be of indefinite duration, unless the The amendment Act’s provisions, which now nature of the work is of a limited or definite regulate fixed-term contracts of employment, are duration or the employer can demonstrate any provided for in the new section 198B. This section other justifiable reason for fixing the term of does not apply to employers who employ fewer the contract. than 10 employees, or to employers who employ more than 50 employees during the first two years An employee employed on a fixed-term contract of the employer’s business, or to employees earning (this should no doubt read “contract or more than the statutory remuneration threshold of contracts”) for longer than three months R 205 433.30. It also does not apply to employees must not be treated less favourably than an employed in terms of a fixed contract which is employee employed on a permanent basis permitted by any statute, sectoral determination performing the same or similar work, unless or collective agreement.  there is a justifiable reason for different treatment. This provision on treatment applies An employer is permitted to employ an [\YYBYH[۝Y\[Y[[Y[وBHH]X[ۈ\Y\ۈH^Y ]\B[Y[[X KKۈ H\[ MK܈^Y B۝X܈X\]H^Y ]\H۝X܂\H۝Xو[\[[\Y[‚\YH[۝ˈ HYX[[][BYܙHH[Y[[Y[وH[Y[Y[ܙ8'X\]x'H[Hܚ]X[8$\H\‚X ۙH[[]\ݚ\[ۈۂXYX^[][ۈ܈ݚ\[ۈHYXX]Y[[ۛHXYHYX]HY\B]^Y ]\H۝XX^H܈X^HB[\YYH\Y[YYH\X[[ ܈][\\YHH\Z[\[و[YH[X\Y\[Hۙ\\YXXH\][ۋ\\‚[[][HYK[[۝\[ HؘXB\Z]Y8$]]\H^HH[][[\]][ۈ[H]HX]H\][ۂXX[ۈ\ܙY pو\\]H^Y ]\H۝X[H][\Y]\Z[H]\HYK[[۝\[[\YY\[\YYۈ^Y ]\H۝X‚\Y[^YYY Bو[\[]\HYܙY[\]X[ܝ[]H\H܈X[Y\ˈX[ۈ NN‚H[\Y\X^H[\HH[\YYHۈB[[X\]ݚ\[ۜ[\Xق^Y ]\H۝X܈X\]H۝X܂\ ][YH[\YY\˂ۙ\[YH[۝ۛHYH]\HقHܚ܈XH[\YYH\[\YY\‚\H\H\YܙHH\و\[وH[Z]Y܈Y[]H\][ۈ܈YH[\Y\ۜY\][ۜHX[]H[\Y\‚