SUBMISSION TO THE COMMITTEE HEARING EVIDENCE ON THE BASIC CONDITIONS OF EMPLOYMENT BILL
APSO represents +400 members in the personnel services industry. Members are primarily engaged in two types of businesses, firstly permanent placements for clients that are seeking to fill a vacancy within their organisation, and secondly filling temporary assignments for clients that require the services of an assignee for a period of time.
Submissions have been made regarding this bill and APSO would like to thank the Department of Labour for their consideration thus far of APSO's needs.
The issues that APSO wishes to address are:
1. Section 83 Duration of Employment The provisions of the bill as currently stated would lead to inequitable access to benefits. This is particularly evident when considering:
a. Family responsibility leave
b. Sick leave
c. Annual leave
Each of these will be covered individually and by means of a practical example explained.
2. Section 26 Family Responsibility Leave The concern with this section is explained as follows:
An assignee may work for three agencies over a period of a year and with each for a period of 4 months. This would then allow the assignee triple benefits by only working an additional day for each agency.
It is APSO's recommendation that: family responsibility leave be allowed after 1 year of employment
alternatively to be paid if an assignee has only been on one assignment with one client company for the required period of time
or finally that the definition of an employee distinguish between permanent and temporary employees and that benefits accrue differently to them.
3. Section 21 Sick Leave The concern with this section is explained as follows:
An assignee may work for an agency for 7 months, work for another agency for 11 months, return on assignment for 1 day and be entitled to 30 days sick leave.
It is again APSO's proposal to consider the recommendations as contemplated under family responsibility leave.
4. Section 19 Annual leave The concern here is that Section 83 needs to make provision for previous payment in regard to not only annual leave, but also sick leave and family responsibility leave.
5. Section 36 Notice of Termination The concern with this particular section can best be explained by means of two
An assignee may work for 5 on an assignment that was scheduled for 3 days. The client may, due to operational requirements, no longer require the assignee services.
The assignee should now be given 1 weeks notice or pay in lieu thereof. Or an assignee may work on a number of assignments over the period of a year. The final assignment could be for 1 week but upon termination thereof, 1 months notice should be given or paid in lieu thereof.
APSO recommends that: The current acts notice provisions are kept in the new act covering a TES
Alternatively to be paid if an assignee has only been on one assignment with one client company for the required period of time
Or finally that the definition of an employee distinguish between permanent and temporary employees and that benefits accrue differently to them.
6. Section 40 Severance Pay The concern is best explained by means of an example.
An assignee may work for a number of agencies on a number of assignments over a period of time. The provisions required by this section are difficult to apply in these circumstances. It is APSO's recommendation that the benefit accrues to an assignee that has been on a single assignment and not multiple assignments.
7. Public Holidays
The concern is best explained by means of an example.
A public holiday may fall on the first day of the month. An assignee may work on the last 3 days of the month and thus be entitled to be paid the public holiday.
Another example, is where a temp may work two days before a public holiday, not be paid for the holiday, and then be prejudiced from being used again in the same month. It is APSOís recommendation that the 3 days required be grouped around the public holiday before payment is due.
The implication of the provision of the Bill is that TESís may not use a temp who has worked 1 or 2 days in a month in which a public holiday falls, to avoid paying for it.
8. Clarity Finally clarity is requested on the following issues.
a. Section 81 definition of a Temporary Employment Service.
The definition of a TES should include the same wording as contained in the LRA. This would be to include "is remunerated by the TES" in the definition.
If this additional Clause is not included, the implication could be drawn that Employment Agencies are the employer when making permanent placements.
b. Section 31.34 Remuneration and Wages
The words remuneration and wages need further clarity as to what their actual meaning and definition is.
c. Clarity is requested on the definition of contract work in chapter 8 Section 54
d. Payment of remuneration, Section 31. What is the definition of "period". If a temp completes mid-week, would it be acceptable to pay them on the following Friday if that is the normal weekly pay day. It is current practice in our industry to pay temps weekly on the Friday.
APSO would like to thank the members for their indulgence in listening to the submission and wish them well with their final deliberations on this most important legislation.
SANDRA STEYN CHAIRMAN GAP COMMITTEE COMMENTS ON THE SKILLS DEVELOPMENT BILL, 1997 BY APSO,
THE ASSOCIATION FOR PERSONNEL SERVICES ORGANISATION 1. ACCREDITATION OF PRIVATE EMPLOYMENT SERVICES APSO cannot agree to the manner in which the Bill proposes to accredit private employment services, as the reference to "prescribed criteria" makes it impossible to give meaningful feedback. Without the supporting regulations, which are not yet available, and which we understand, will be published in the Government Gazette for implementation and not be open for further comment, APSO is opposed to a process which allows insufficient opportunity to influence or change the ensuing regulations.
APSO also notes with concern that the Bill refers to "prescribed" criteria, manner, guidelines, requirements etc. on some 35 occasions, and raises the same objection in all these cases, as with the case detailed above.
2. ESTABLISHMENT OF EMPLOYMENT SERVICES The extended functions of Employment Services as contemplated in Sections 4 and 5 of the Bill, raise concerns that in seeking accreditation, many private employment agencies will have to expand internal resources and skills in order to provide the functions required. The question is raised as to whether employment services will be subsidised to provide these expanded functions.
3. THE LEVY-GRANT SYSTEM The Levy-Grant Systemís formula that is proposed in the Bill is more onerous than was initially anticipated. It appears that personnel costs will include not only remuneration or payroll costs, but also all allowances and fringe benefits. A further concern, is the definition in Section 32 of the Bill, of an employer. The perceived implication of this definition, is that fees paid to contractors and consultants used by an employer, will be considered personnel costs.
APSO opposes this view and believes it will jeopardise the GEAR objective of tighter fiscal policy with a tax ratio to GDP of not more than 25% and may even lead to double taxation. (NOTE: Temporary Employment Services presently pay double RSC levies on temporary payroll and temporary services billings to clients, which includes the temporary wages).
4. DEMARCATION OF INDUSTRIES WITHIN WHICH TEMPORARY EMPLOYEES OPERATE Temporary employees may be placed on assignment for varying periods of time across different industrial sectors. This raises the concern as to the practicality of under which SETA funds are to be accessed and training provided. In addition, the administrative burden in trying to monitor, allocate levies and report on skills development and learnerships is exacerbated and will lead to complexities which may result in the penalisation of TESí and the objectives of the SDB not being achieved.
5. MOVEMENT OF TEMPORARY EMPLOYEES BETWEEN TEMPORARY
EMPLOYMENT SERVICES (TESí) A temporary employee may be utilised by a variety of TESí during the course of a year and may lead to the inequitable cost / benefit allocation of training and / or learnership by virtue of the infrastructure, administration and resources needed for skills development training.
6. REPRESENTATION ON THE NSA Section 22 provides for representation on the NSA by a number of stakeholders, including 2 representative from Employment Services. However, in the selection of Deputy Chairpersons, the Employment Services Representatives are excluded from nomination. Furthermore, it is doubtful whether there will be sufficient representation from Employment Services in the private sector and representation by the employer contingent as a whole. The composition of the NSA will not afford business sufficient opportunity to change any regulations.