This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.

COVID-19 VACCINES
OCCUPATIONAL HEALTH AND SAFETY

President Cyril Ramaphosa’s address on South Africa's response to the Covid-19 pandemic

During a nation’s address by the the President of South Africa dated 28 November 2021, the President stated as follows:

“[a]s individuals, as companies and as government, we have a responsibility to ensure that all people in this country can work, travel and socialise safely. We have therefore been undertaking engagements with social partners and other stakeholders on introducing measures that make vaccination a condition for access to workplaces, public events, public transport and public establishments.

Government has set up a task team that will undertake broad consultations on making vaccination mandatory for specific activities and locations. The task team will report to the Inter-Ministerial Committee on Vaccination chaired by the Deputy President, which will make recommendations to Cabinet on a fair and sustainable approach to vaccine mandates. We realise that the introduction of such measures is a difficult and complex issue, but if we do not address this seriously and as a matter of urgency, we will continue to be vulnerable to new variants and will continue to suffer new waves of infection.”

Covid-19 Employment Practical Guidelines for Employers:

In order to implement a mandatory Covid-19 vaccine policy in the workplace, an employer must at this stage follow the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces as published by the Minister of Employment and Labour in Government Gazette No. 44700 dated 11 June 2021.

SERR Synergy has developed a Covid-19 Mandatory Vaccine Workplace Policy to provide assistance to employers in addressing aspects such as the application of, and parties excluded from, the directive; obligations of the employer and employee; employees suffering from side effects of the Covid-19 vaccine; confidentiality aspects; and disciplinary measures to be taken should an employee refuse to be vaccinated in instances where a mandatory Covid-19 vaccine policy is legitimately implemented.

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Compensation for Covid-19 vaccination side-effects:

The Compensation Commissioner, Vuyo Mafata, in Government Gazette No. 45356 dated 22 October 2021, published a notice on compensation for Covid-19 vaccination side-effects in terms of section 6A(b) of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), stipulating that the Compensation Fund will cover employees–

for injuries, illness or death as a result of receiving a Covid-19 vaccine;
only where an employee is required by the employer to be vaccinated as an inherent requirement of employment or where vaccination is required based on the OHS risk assessment conducted by the employer;
only if the employee was vaccinated with SAHPRA-approved Covid-19 vaccines;
provided that the chronological sequence between the vaccine inoculation and the development of symptoms and clinical signs is submitted;
only where the employee shows symptoms and clinical signs that are generally recognised as side-effects of the Covid-19 vaccine; and
provided that additional tests may be required to assess the presence of abnormalities of any organ affected.

The SERR Synergy Labour Department can assist businesses to comply with the relevant employment and labour legislation. The above policy and directive can be requested from the SERR Synergy Labour Department.

The SERR Synergy Labour Department can assist businesses to comply with the relevant employment and legislation. The above policy and directive can be requested from the SERR Synergy Labour Department.

Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993):

The Department of Employment and Labour, in Government Gazette No. 45452 dated 12 November 2021, prescribed an increase of 3,6% in monthly pensions payable in terms of subsections 49(1)(a) and 54(1)(a), (b), (c) and (d) of COIDA with regard to accidents which occurred before 1 April 2021 as well as occupational diseases which were diagnosed before 1 April 2021. The increase of 3,6% is effective from 1 April 2021.
The Department of Employment and Labour, in Government Gazette No. 45452 dated 12 November 2021, under section 55 of COIDA, amended Schedule 4 for accidents that occurred from 1 April 2021, as well as occupational diseases diagnosed from 1 April 2021. The minimum and maximum compensation in terms of this notice is effective from 1 April 2021.

Disaster Management Act, 2002 (Act No. 57 of 2002):

The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, in Government Gazette No. 45485 dated 13 November 2021, extended the national state of disaster from 15 November 2021 to 15 December 2021.

The SERR Synergy Occupational Health and Safety Department can assist businesses to comply with the relevant legislation. The above documentation can be requested from the SERR Synergy OHS Department.

Department of Employment and Labour:

The Registrar of Labour Relations, Lehlohonolo Molefe, in Government Gazette No. 45530 dated 23 November 2021, gave notice of his intention to cancel the registration of Blackpower Emancipation Allied Workers Union of South Africa (BEAWUSA) (LR2/6/2/2713) because the union ceased to function as a genuine trade union as envisaged by the Labour Relations Act, 1995 (Act No. 66 of 1995) (LRA); the union ceased to function in terms of its Constitution; and lastly, the union has failed to comply with the provisions of sections 98, 99 and 100 of the LRA. Therefore, the union and all interested parties are invited to make written representations until 23 January 2022 submitting reasons as to why the registration of the union should not be cancelled.
The Registrar of Labour Relations, in Government Gazette No. 45529 dated 23 November 2021, announced that the National Union of Mineworkers (NUM) (LR 2/6/2/3156) has been registered as a trade union with effect from 22 November 2021 in terms of section 109(2) of the LRA. The establishment and registration of this trade union constitute an amalgamation of two unions, namely the Liberated Metal Workers Union of South Africa (LIMUSA) (LR 2/6/2/2284) and the National Union of Mineworkers (NUM) (LR 2/6/2/162), which was removed from the register of trade unions after said merger.
The Department of Employment and Labour, in Government Gazette No. 45536 dated 26 November 2021, notified the public that in terms of section 71(7) of the LRA, due to an error in the Gazette Notice 237 of 2018 dated 11 May 2018 as contained in Gazette No. 41621, the aforesaid Gazette Notice is amended to correct the designation of “Security in Stadiums, for sporting events attended by more than 200 people” to read as “Security in Stadiums, for sporting events attended by more than 2000 people”.
The Department of Employment and Labour, in Government Gazette No. 45536 dated 26 November 2021, published a list of private agencies that have been accredited by the CCMA in terms of the provisions of the LRA for conciliation and/or arbitration and/or inquiry by an arbitrator, with the terms of accreditation included in this notice, for the period of 01 November 2021 to 31 October 2024.
The Department of Employment and Labour, in Government Gazette No. 45536 dated 26 November 2021, published a list of Bargaining Councils that have been accredited by the CCMA in terms of the provisions of the LRA for conciliation and/or arbitration and/or inquiry by an arbitrator, with the terms of accreditation included in this notice, for the period of 01 January 2022 to 31 December 2024.

Bargaining Councils:

The Director of Collective Bargaining, Stephen Rathai, in Government Gazette No. 45455 dated 11 November 2021, extended the period of operation regarding the Provident Fund and Mortality Benefit Association Collective Agreement for the Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal until 30 June 2023.
The Registrar of Labour Relations, in Government Gazette No. 45452 dated 12 November 2021, published a notice indicating that following an application by the Bargaining Council for Furniture Manufacturing Industry of the Western Cape, its scope has been varied in terms of section 58 of the LRA as provided in the Annexure, with effect from 29 October 2021. The Bargaining Council is registered in respect of the Furniture, Bedding, Upholstery and Curtain Manufacturing Industry as defined in the Provinces of the Western Cape and Northern Cape, excluding the Magisterial Districts of George, Knysna, Mossel Bay, Oudtshoorn and Plettenberg Bay.
The Minister of Employment and Labour, Thulas Nxesi, in Government Gazette No. 45555 dated 29 November 2021, published a notice inviting the public to submit representations in response to the National Union of Metalworkers of South Africa (NUMSA)’s application for the renewal and extension of the Metal Engineering Industries Bargaining Council’s funding agreement, the Registration and Administration Expenses Collective Agreement, in terms of section 32A, which application was submitted to the Department of Employment and Labour on 29 October 2021. Representations must be submitted within 21 days from release of this notice.

Latest caselaw:

AMCU and Others v Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti and Others (CCT 233/20) [2021] ZACC 42 (12 November 2021)

This matter, which relates to a wage strike by AMCU at Sibanye Gold Limited t/a Sibanye Stillwater (Sibanye), commenced in 2018 and continued over a period of five months. AMCU served multiple notices for secondary strikes on various gold mining companies at the end of its third month of strikes, seeking to call out its members employed in these entities to embark on a secondary strike for 7 days.

Ten (10) mining companies launched separate urgent applications in the Labour Court (LC) to interdict the secondary strike and to declare the strike as unprotected. The LC had to establish whether section 66(2)(c) of the LRA imports the principle of proportionality (in other words, the harm to the secondary employer must be considered as part of the assessment of the reasonableness of the secondary strike) and whether, if evaluating each matter on its own merits and facts, the secondary employer would be protected. Concluding this evaluation, the LC granted the interdicts sought by the companies.

The Labour Appeal Court (LAC) dismissed AMCU’s appeal on the grounds of mootness by virtue of the fact that the primary strike at that stage had already been resolved. Unsatisfied with the finding of the LAC, AMCU applied for leave to appeal to the Constitutional Court (CC).

The CC found that reasonableness imports the test of proportionality. There are certain factors such as, but not restricted to, the number of employees involved in the strike and their conduct; the duration and form of the strike; and whether the primary strike was of a peaceful or violent nature. These are factors that must be evaluated in balancing the potential harm that may be caused to the secondary employer against the potential harm that may be caused to the primary employer. The CC held that the protection of the law provided to strikes will cease to exist once strikes turn violent and are no longer peaceful.

In order to establish its reasonableness, the prospect of violence during a secondary strike would be a contributing factor. The CC further held that the preferred route to stop the violence would be to obtain an interdict, which will in effect not lead to the interference with the secondary strike.

The CC found that the test of proportionality limits the right to participate in a secondary strike in terms of section 66(2)(c) of the LRA and introduces safeguards that will balance the rights of primary and secondary employers. This provides a measure of protection to employers and for section 66(2)(c) to be allowed as aggregation of secondary strikes for purposes of the proportionality assessment.