The amendment Bill, published for public comment by the Department of Justice and Constitutional Development, would make significant changes to the Act.

The main purpose of the Act is to realise the constitutional right to equality so that people do not face unfair discrimination by either the state or anyone else.

The Bill proposes to amend the definition of “discrimination” to make it clear that it is not necessary for a person to act with intention before they can be found guilty of unfair discrimination.

This is in line with several Constitutional Court judgments which have found that intention is not necessary for a person to unfairly discriminate against.

A significant addition is the insertion of a provision that will make employers liable for unfair discrimination committed by their employees.

This provision does state, however, that employers will not be liable for unfair discrimination committed by their employees, if they can show they took all reasonable steps to ensure that employees do not unfairly discriminate against other people when performing their duties.

The Bill also proposes that anyone who causes, encourages or requests another person to unfairly discriminate against other people will be guilty of unfair discrimination themselves.

Several provisions aim to provide greater protection to people who challenge unfair discrimination or who are victims of hate crimes.

For instance, one provision prohibits retaliation against anyone who objects to unfair discrimination or who institutes proceedings under the Act to challenge unfair discrimination.

Another provision states that if it is shown that unfair discrimination on the grounds of race, gender or disability played a role in the commission of a crime, the unfair discrimination must be considered an aggravating factor when deciding the appropriate punishment or sentence.

The Bill also proposes that Legal Aid recommend to the Minister of Justice that regulations be published to provide funding for poor people to challenge unfair discrimination in the courts.

The Bill also fleshes out the constitutional duty of the state to promote equality and to eliminate unfair discrimination.

It proposes that state institutions have the duty to run information campaigns to make people familiar with the Act and to take measures to eliminate unfair discrimination and promote equality.

To ensure state institutions comply with these additional duties, the Bill proposes they must explain the amount of money allocated towards such measures in their annual reports.

When no funds are allocated in a financial year towards such measures, a proper explanation must be provided for why.

The ability of constitutional institutions, such as the Human Rights Commission and Public Protector, to investigate and combat unfair discrimination will also be strengthened by the Bill.

For instance, one provision will empower constitutional institutions to request information from the state or even private companies on measures they have taken to combat unfair discrimination and to promote equality. Anyone who intentionally provides false information to a constitutional institution will be guilty of an offence.

The Bill also empowers constitutional institutions to assist people to pursue discrimination claims in the equality court, to conduct investigations into cases of persistent allegations of unfair discrimination and request regular reports from any government department on the number of unfair discrimination cases they have received and their outcome.

Particularly significant is the fact that the Bill imposes further duties on private people (usually companies) and private institutions to promote equality and to combat unfair discrimination.

The Bill makes it clear that private people (not only the state) have a duty to take active steps to eliminate unfair discrimination. The Bill states such measures should place particular emphasis on ensuring that discrimination based on race, gender and disability is eliminated.

The Bill also states that any person who enters into a contract with the state must comply with any code of good practice that regulates the promotion of equality and the prevention of unfair discrimination.

This means, for example, that a private company that enters into a tender with the state to provide services must ensure that its own policies and procedures promote equality and do not unfairly discriminate against anyone.

• Written by Geoffrey Allsop.
• This article first appeared on Ground Up. You can read the original article here.

South Africa’s real take-home pay increased by just 0.7% in March 2021, with the average salary reaching R15,092 in nominal terms and R12,749 in real terms.

The growth in March 2021 came off the low base in March 2020 when the country was placed under hard lockdown.

“The good news is that the average take-home pay has returned to the pre-Covid-19 trend,” BankservAfrica said. “The number of employees in the broader payment system of formal employers from larger companies has recovered fast as the economy has re-opened.”

When the hard lockdown began in March 2020, the BTPI recorded a small number of employees in the formal economy who were already missing out on payments. This was particularly notable among weekly and daily paid employees, the group said.

The last four days of March 2020 included a Friday and a Monday (which are two important days for weekly payments) when South Africa was already in lockdown. BankservAfrica’s data subsequently recorded a drop in the number of daily and weekly payments made to employees.

In March 2021, a small increase in the number of weekly and monthly take-home payments was observed, while daily payments continue on a declining trend.

“Overall, the March 2021 number of take-home payments was slightly higher than the March 2020 number. The year-on-year change came in at under 1%, which we believe marks the turning point for employment numbers improving from the depth of the pandemic. The BTPI is gradually returning to normal,” it said.

Chief economist at economists.co.za, Mike Schüssler said that the shift in pay trends can be chalked up to 95% of private sector jobs in larger firms having recovered.

“But, with daily and weekly payments still far below normal, one can assume that smaller firms and the informal sector have a long way to go for recovery,” he said.

Thus the current improvements are still being seen as a ‘recovery’ – as the actual employment numbers are still slightly below the BTPI’s average.

According to BankservAfrica’s data, the overall total salaries and pensions paid increased 1.8% in real terms compared to March 2020. But the overall amount is 6% lower in nominal terms than in March 2019.

“We believe a further test on the actual economic recovery will come when the last TERS and disaster relief payments have been made by government,” Schüssler said. “The actual new growth in the economy is probably a little way off, but it has been faster than one would have expected and should help consumer spending.”

The policy wants to introduce positive youth development outcomes for young people at local, provincial, and national levels in South Africa.

The NYP defines young people as those aged between 14 and 35 years.

The department acknowledged the high celling of 35 years for ‘youth’, but said that this ceiling remains in place to help address “historical imbalances” in the country. Using this definition of youth, the policy covers around 20.6 million people – 37% of the population.

The policy outlines a wide range of topics including education, skills development and social support.

A large part of the policy also reflects on the country’s high youth unemployment rate and the interventions which could be introduced to get more young South Africans into work.

This includes the introduction of a new basic income grant aimed specifically at the country’s unemployed youth, the department said.

“(This will) support young people and young discouraged jobseekers’ efforts to enter the labour market by introducing a Basic Universal Income Grant – an incentive similar to the Covid-19 Social Relief of Distress grant primarily to support youth to transition into employment or entrepreneurship.”

Other unemployment interventions which have been proposed by the department in the policy include:

• Abolish the requirement for experience for entry-level jobs to enable more youth to enter the labour market and gain job experience;

• Creating a national pathway management network to provide work seekers with access to a basic package of support and work-readiness training to better match them to economic opportunities;

• Equip young people with skills in key growth sectors to access opportunities such as the green, waste and food economies and advocate for the development of a catch-up strategy for those who have been left behind due to dropping out of the school system;

• The National Youth Development Agency (NYDA) and the Department of Small Business Development should implement grant funding and business support for 100,000 young entrepreneurs in the next three years;

• Offer practical experience to young people through the scaling up of the Youth Employment Service (YES) to assist them in getting practical job experience.

Basic income being considered

In January, President Cyril Ramaphosa said that the African National Congress government will consider the introduction of a basic income grant in South Africa in 2021.

Speaking at the party’s 109th-anniversary celebrations, Rampahosa said consideration for the grant comes after emergency financial measures introduced around the Covid-19 pandemic come to an end.

Despite the country’s limited resources, the country needs to look at identifying other poverty alleviation measures, he said.

“This year the ANC government, and broader society will need to continue discussions on the desirability and the viability of a basic income grant to provide a social safety net to poor people in our country,” he said.

The pandemic prompted president Cyril Ramaphosa to announce a temporary top-up of existing grants by up to R300, including a R350 unemployment grant in late March 2020.

The ANC has previously said that it will also look at the feasibility of introducing a basic income grant as part of a series of outcomes decided upon by its National Executive Committee (NEC).

According to a June 2020 document seen by Bloomberg, the ANC proposes paying a R500 monthly grant to those aged 19 to 59 who aren’t normally eligible for other aid would cost the state R197.8 billion a year.

Between 50% and 60% of the money could be recouped by levying extra taxes on those with jobs, it said.

President Cyril Ramaphosa has announced that South Africa will move back to lockdown level 1.

In a national address on Sunday evening (28 February), the president said that the eased restrictions come nearly a year after the first Covid-19 case was first reported in the country.

He added that the country has now clearly passed its second wave in Covid-19 cases, with most people adhering to tighter restrictions and observing basic health protocols.

Ramaphosa outlined the following changes to restrictions:

• The evening curfew will remain in place, but will now run from 00h00 to 04h00;
• The sale of alcohol is permitted in line with normal licence conditions, but may not be sold during hours of curfew;
• Gatherings will be permitted subject to limitations on size and health protocols – this includes religious, social, political and cultural gatherings;
• The maximum number of people at any gathering is 100 for indoor and 250 for outdoor – subject to floor space.
• Night vigils before and after funerals are still not permitted;
• Nightclubs remain closed;
• The wearing of masks in public places is still compulsory – failing to do so is a criminal offence;
• Some land border posts remain closed and five international airports will be open.

The new alert level will come into effect later on Sunday evening, once the regulations have been gazetted.

The five airports open for international travel are:

• OR Tambo International Airport
• Cape Town International Airport
• Kruger Mpumalanga International Airport
• King Shaka International Airport
• Lanseria Airport

The 33 land border posts that have been closed throughout this period will remain closed, while the other 20 will remain open.

“As we ease restrictions we cannot let our guard down. The few remaining restrictions aim to it infections and prevent super spreader events,” Ramaphosa said.

The threat of a third wave is constantly present – as is the threat of new variants, he said.

Vaccines

In the 10 days since launching its vaccine programme, Ramaphosa said that nearly 67,000 healthcare workers have been vaccinated to date, with a further 80,000 Johnson and Johnson vaccines arriving in the country this week.

He added that the number of Covid-19 vaccination sites will be expanded from 17 to 49 sites in the next week. Once all healthcare workers have been vaccinated, phase 2 of the vaccine rollout will begin, he said.

The president said that phase 2 will target the elderly, public-facing service workers and those with co-morbidities. This phase is set to begin at the end of April and the beginning of May.

Ramaphosa said the government has also concluded agreements with manufacturers such as Pfizer and Johnson & Johnson to ensure that it will have enough vaccines.

This week the National Treasury said that it has allocated R9 billion to fund the country’s Covid-19 vaccine rollout strategy.

Tabling the Budget Review on Wednesday, Treasury said ensuring access to Covid-19 vaccines is government’s immediate priority. “Over the medium term, R9 billion is allocated for vaccine rollout,” it said.

“Of this amount, the Department of Health is allocated R6.5 billion to procure and distribute vaccines.

“An amount of R100 million will be transferred to the South African Medical Research Council for vaccine research. Provincial health departments are allocated R2.4 billion to administer vaccines.”

As announced by the minister of health, Dr Zweli Mkhize in January 2021, South Africa’s three-phase vaccine rollout strategy aims to vaccinate 67% of the population over a 12-month period.

“Access to vaccinations will be provided free of charge, in line with need and the rollout schedule. Funding for vaccine procurement and rollout is drawn from the national budget.

“Since the state is procuring vaccines on behalf of both the public and private sectors, some revenue will return to the fiscus when private providers buy vaccines from the state.”

In a gazette published on Monday evening (8 February), the minister said that the national minimum wage is now R21.69 for each ordinary hour. This change will take effect from 1 March 2021.

The gazette also provides exceptions for a number of worker groups

• Farmworkers are entitled to a minimum wage of R21.69 per hour;
• Domestic workers are entitled to a minimum wage of R19.09 per hour;
• Workers employed on an expanded public works programme are entitled to a minimum wage of R11.93 per hour.

The National Minimum Wage Act was first proclaimed in 2018, setting a historic precedent in the protection of low-earning (vulnerable) workers in South Africa and provided a platform for reducing inequality and huge disparities in income in the national labour market.

The national minimum wage was first implemented on 1 January 2019 at a level of R20 per hour. On 1 March 2020, the minimum wage base rate was adjusted to R20.76 per hour.

In terms of the law it is an unfair labour practice for an employer to unilaterally alter hours of work or other conditions of employment in implementing the national minimum wage.

The national minimum wage is the amount payable for the ordinary hours of work and does not include payment of allowances (such as transport, tools, food or accommodation) payments in kind (board or lodging), tips, bonuses and gifts.

Equalisation 

In November 2020, the national minimum wage commission said that ideally, a national minimum wage should be applicable to all employees across the country and irrespective of sector.

To avoid excessive disruption, however, the Minimum Wage Act established lower minimums for farm and domestic workers, with a process of gradual equalisation to the national minimum wage over time.

Section 6 of the Act mandates the Commission to make recommendations to the Minister of Employment and Labour on this topic.

In 2018 farmworkers were entitled to a minimum wage of R18 per hour and domestic workers to a minimum wage of R15 per hour.  The minimum wages of farmworkers and domestic workers increased in March 2020 to R18.68 and R15.57 respectively.

Thee recommendation of the commission is that the minimum wages of farmworkers be equalized with the national minimum wage with effect from the date of the overall adjustment in 2021.

The commission recommended that the minimum wage of domestic workers be increased to 88% of the national minimum wage in 2021 and to 100% in 2022.

This adjustment of the minimum wage for domestic workers and farmworkers would amount to an increase of about R450 per month for a domestic worker and about R350 per month for a farmworker.

Government declared a national state of disaster under Section 27(1) and Section 27(2) of the Disaster Management Act on 15 March 2020 in response to the coronavirus pandemic.

While the state of disaster was originally set to lapse on 15 June, the act provides that it can be extended by the Cogta minister by notice in the gazette for one month at a time before it lapses.

In a gazette published on Wednesday (13 January), Dlamini-Zuma said that the extension takes into account the need to continue augmenting the existing legislation and contingency arrangements undertaken by organs of state to address the impact of the disaster.

The state of disaster is now set to lapse on 15 February – nearly a full year since it was officially introduced.

The state of disaster is what gives power and effect to all current lockdown regulations, which are all being directed under the Disaster Management Act. By terminating the state of disaster, all current regulations – such as curfew and restrictions on gatherings and movement – would also be ended.

In a national address on Monday evening (11 January), President Cyril Ramaphosa said that the country will remain on an extended level 3 lockdown, continuing the current prohibition on the sale of alcohol and other restrictions.

The president also announced a number of changes including a new curfew time (21h00 – 05h00) as well as the closure of the country’s land borders. These changes are in effect until further notice.

In an analysis of the latest lockdown, banking group BNP Paribas said that these restrictions are a watered-down version of the previous level 3 lockdown, likely in an attempt to keep more of the economy open.

“Our base-case forecasts do not assume that a hard lockdown’ will be implemented because we think that economic considerations will be given more weight than in the initial wave.

“Should infections be seen to be spiralling out of control, however, we cannot rule out harder regulations with a greater economic impact,” it said.

South African employees will return to work in January at the height of a second coronavirus wave and alongside the reintroduction of new restrictions.

On 28 December 2020, President Cyril Ramaphosa announced that South Africa would move to an adjusted level 3 with immediate effect.

The adjusted level 3 regulations were gazetted on 29 December 2020 and contain further restrictions and stricter penalties for non-compliance with a view to curbing the spread of the virus while retaining a functioning economy insofar as possible.

Below, law firm Cliffe Dekker Hofmeyr outlined some of the key considerations for employees before returning to work.

Returning from holiday and working from home

Where an employee is able to work from home while quarantining, the employee may do so and will therefore be entitled to their full salary. In cases where an employee is unable to work from home, the employee may make use of their annual leave for the quarantine period.

Where an employee has exhausted their annual leave, the principle of no work no pay will apply and the employee will be placed on unpaid leave.

Employers should alert employees to the fact they will be required to self-quarantine upon return from a hotspot area and that they will need to make use of annual leave or unpaid leave for this period where they are unable to work from home.

Under the exceptional circumstances of Covid-19, requiring an employee who has returned from a hotspot area to self-quarantine, it can be argued that this does not amount to unfair discrimination

“Unless the employer can show that the conduct of the employee has damaged the employment relationship in some way, the employer is not entitled to discipline the employee for their conduct outside of the workplace,” Cliffe Dekker Homeyr said.

“A balance must be struck between an employer maintaining a safe working environment post the holiday season and an invasion of an employee’s privacy. Employers can only encourage employees to adhere to government protocols outside of the workplace.”

Obligations at the workplace

In terms of the adjust level 3 regulations, an employer has the following obligations and responsibilities:

• To adhere to all sector-specific or other health and safety protocols issued to date;

• To appoint a compliance officer to enforce compliance with the adjusted level 3 regulations and all other health and safety protocols issued to date;

• Prohibit employees from entering the workplace or performing their duties unless an employee is wearing a face mask;

• Determine the floor plan area of the workplace and the number of persons who may enter the workplace based on the floor plan area, while still maintaining a physical distance of 1.5 metres;

• Ensure all persons queuing either inside or outside their premises maintain a physical distance of 1.5 metres;

• Take measures to enforce physical distancing of 1.5 metres in its workplace, including implementing measures such as remote work, restrictions on face-to-face meetings and taking special measures in relation to employees who are considered vulnerable due to their age or co-morbidities;

• Provide hand sanitisers outside its premises.

Gatherings and curfews

Workplace gatherings are permitted provided persons maintain a physical distance of 1.5 metres and adhere to all health and safety protocols including sanitation and the wearing of face masks.

All business premises are limited to 50% capacity of its floor space which includes both customers and employees, subject to strict health protocols and physical distancing restrictions.

The following businesses must close to the public by 20h00:

• Cinemas;
• Theatres;
• Casinos;
• Museums and galleries;
• Gyms;
• Restaurants.

Penalties

Employers who commit the following offences will be liable to a fine or imprisonment not exceeding six months, or to both such fine and imprisonment:

• Exceeding the customer and/or employee allowance based on their floor plan determination;
• The sale, dispensing and distribution of alcohol;
• Where applicable, failure to adhere to the curfew of 20h00; and
• Adherence to restrictions in relation to limitations pertaining to gatherings.

Can an employer institute a mandatory vaccination policy once a vaccine becomes available?

The gist behind mandatory vaccination is that employers have an obligation to protect their employees and maintain a healthy and safe working environment, Cliffe Dekker Hofmeyr said.

When considering whether to implement a mandatory vaccination policy employers must have regard  to their individual workplaces and access whether such a policy is in fact necessary taking into account the following factors:

• The viability of continued remote work;
• The number of vulnerable employees in the workplace;
• The effectiveness of additional PPE where necessary;
• Temporary alternative placements;
• The employees' exposure to the public
• The number of employees with religious and/or medical grounds for objection.

“The requirement for such a policy should be determined on a case-by-case basis and the objections of employees or potential employees must also be duly considered with regard to the requirement to balance various rights.

“Employers must ensure that their records of infected employees are kept updated as this is a factor to also be taken into account,” Cliffe Dekker Hofmeyr said.