LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - MARCH 2022
This newsletter highlights the latest statutory amendments, enactments, caselaw, notices and ancillary developments relevant to the SERR Synergy products and services for the month.
- B-BBEE
- TRAINING AND SKILLS PROGRAMMES
Minister of Finance v Afribusiness NPC (CCT 279/20) [2022] ZACC 4 (16 February 2022)
This matter arose after the National Treasury received complaints from members of the public relating to the effectiveness of the 2011 Preferential Procurement Regulations (GN R502 GG 34350, 8 June 2011) which were applied prior to, and/or served as a precursor to the 2017 Procurement Regulations. Additional concerns were raised by state-owned enterprises illustrating that the 2011 Procurement Regulations created a competitive advantage for white persons and no attempts were made to include previously disadvantaged persons.
In terms of section 5(1) of the Procurement Act, the then Minister of Finance, Mr Gordhan, exercised his powers and promulgated the 2017 Procurement Regulations. In terms of the 2017 Procurement Regulations, organs of state may elect to apply a specified list of pre-qualification criteria to advance certain groups, and only tenderers who comply with such criteria would be eligible to tender. Regulation 3(b) provides that “[a]n organ of state must...determine whether pre-qualification criteria are applicable to the tender as envisaged in regulation 4”. Regulations 4 and 9 provide pre-qualification criteria that tenderers must meet to be eligible to tender and subcontract, respectively. The amendment was also intended to align the Regulations with Broad-Based Black Economic Empowerment (B-BBEE) legislation.
The essence of this matter is founded on the separation of powers (trias politica), namely the executive (Cabinet), the legislature (Parliament) and the judiciary (Courts of law).
In the Constitutional Court, the ultra vires doctrine (acting beyond the scope of the powers) is the starting point for determining the lawfulness of the exercise of any public power. The majority held that the impugned regulations are not necessary. It can neither be necessary nor expedient for the Minister to establish regulations in an attempt to achieve an outcome which can already be accomplished in terms of section 2(1) of the Procurement Act. Section 2(1) of the Procurement Act gives effect to section 217(3) of the Constitution, which provides that the categories of preference contemplated in section 217(2) must be provided for in a framework by national legislation and implemented.
As stated previously, the core aspects of the matter lie with the separation of powers. The question asked by the Constitutional Court is therefore whether a Minister has the power to make regulations of this nature if not authorised to do so by on Act of Parliament. If not, as presented in this case, the matter comes to an abrupt end and the implemented regulations are invalid for being ultra vires the enabling section. Therefore, the principle of legality is breached if a state organ’s action has no legal foundation that forms part of the rule of law, which in turn is an enshrined value of the Constitution.
Succinctly, the appeal by the Minister was dismissed with costs and Afribusiness NPC was successful in this matter. The decision by the Constitutional Court was not a decision against the component of the Regulation but was based on the fact that the Minister, in making the Regulation, acted outside of his legislative authority.
Immigration Act, 2002 (Act No. 13 of 2002): Critical Skills List
- The Minister of Home Affairs, Dr Aaron Motsoaledi, in Government Gazette No. 45860 dated 2 February 2022 determined and published the skills or qualifications that are critical to the Republic of South Africa (RSA) in relation to the application for a critical skill work visa or permanent residence permit. The list comprises 101 critical skill occupations.
The above document can be requested by SERR Synergy Training, SDF and B-BBEE clients from the SERR Synergy Training, SDF and B-BBEE Departments.
Employment Equity Act, 1998 (Act No. 55 of 1998):
The Employment Equity Amendment Bill is currently being considered by the National Council of Provinces, where the proposed amendments will be considered. Should any amendments be made, the Bill will be reconsidered by the National Assembly and then provided to President Cyril Ramaphosa to be signed into law.
According to a media statement published by the Department of Employment and Labour on 2 September 2021, which was distributed to interested parties, the department’s Employment Equity (EE) Directorate was concluding the process and preparing itself for the implementation and enforcement of the new EE Act once the parliamentary processes are finalised by March 2022. Furthermore, the department’s director of employment equity, Ntsoaki Mamashela, said in September 2021 that, “[t]he expected introduction of five-year sector targets will mark the beginning of a clean slate. All current employment equity plans will fall away on 22 September 2022, and the new plans will have to be aligned with five-year targets. Self-regulation has not worked”.
Due to uncertainty regarding the implementation date of the Employment Equity Amendment Act, the SERR Synergy Skills Development department will communicate the newly published legislation to all its SDF clients as soon as the Employment Equity Amendment Act is implemented.
The Department of Health issued a media statement dated 21 February 2022 announcing further amendments to the vaccination programme.
Pfizer vaccine:
- Persons who have received their first dose of the Pfizer vaccine are permitted to receive their second dose after 21 days (previously the duration period was 42 days) effective from 23 February 2022.
- Persons who have received their second dose of the Pfizer vaccine can receive their booster dose after 90 days (previously the duration period was 180 days) effective from 23 February 2022.
Johnson & Johnson vaccine:
- Persons older than 18 years who have received their first dose of the J&J vaccine can, as of 21 February 2022, receive their booster dose after 60 days.
Heterologous booster doses:
Heterologous booster doses pertain to the administration of vaccines other than those administered as the primary dose.
Persons over the age of 18 years who have received one dose of the Covid-19 Johnson & Johnson vaccine will as from Monday, 21 February 2022, be permitted and eligible to receive a booster dosage of the same vaccine or a booster dose of Pfizer vaccine after an interval of two months (60 days).
Furthermore, persons older than 18 years who have received two doses of the Pfizer vaccine will as of from Wednesday, 23 February 2022, be eligible to receive a booster dose of the same vaccine or a booster dose of the Covid-19 Johnson & Johnson vaccine at least 90 days (three months) after the second dose.
Department of Employment and Labour:
- The Minister of Employment and Labour, Thulas Nxesi, in Government Gazette No. 45880 dated 7 February 2022, announced an increase in the annual threshold from R211 596,30 (two hundred and eleven thousand, five hundred and ninety-six rand, thirty cents) to R224 080,48 (two hundred and twenty-four thousand and eighty rand, forty-eight cents). Employees who fall within this amended annual remuneration threshold category will be excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997) (BCEA) with effect from 1 March 2022.
- The Minister of Employment and Labour, in Government Gazette No. 45882 dated 7 February 2022, published the amended national minimum wages contained in Schedule 1 and Schedule 2 of the National Minimum Wage Act 2018 (Act No. 9 of 2018) (NMWA) to be effective from 1 March 2022. The new NMW is R23,19 per hour. Kindly visit our blog about the new national minimum wage for South Africa effective from 1 March 2022, which provides further details regarding the above.
- The Minister of Employment and Labour, in Government Gazette No. 45962 dated 28 February 2022, published the proposed amendments to the Employment Services Act, 2014 (Act No. 4 of 2014) introducing new provisions regarding the National Labour Migration and related matters. Interested parties are invited to submit written comments on the proposed Draft National Labour Migration Policy for South Africa and Employment Services Amendment Bill, 2021 within 90 days after publication of this notice, to NLMO@labour.gov.za.
- The Department of Labour published an occupational advertisement on 28 February 2022 indicating that the Compensation Fund is inviting previously employed persons who suffered occupational injuries or diseases, and as a result, acquired a permanent disablement (Unemployed CF Pensioners), to apply for Vocational Training. The training will be rolled out in all the provinces. The relevant Vocational Rehabilitation Application form can be downloaded from the Department’s website (www.labour.gov.za).
Bargaining Councils:
- The Minister of Employment and Labour, in Government Gazette No. 45864 dated 3 February 2022, announced the Metal and Engineering Industries Bargaining Council’s (MEIBC) renewal and extension of the registration and administration expenses collective agreement effective from 3 February 2022 for a period of 12 months.
- The Minister of Employment and Labour, in Government Gazette No. 45894 dated 11 February 2022, extended the National Bargaining Council of Leather Industry of South Africa’s Collective Agreement, to non-parties of the footwear section regarding the Technological Fund effective from the second Monday after the date of publication of this notice (21 February 2022) until 10 May 2028.
- The Minister of Employment and Labour, in Government Gazette No. 45894 dated 11 February 2022, extended the National Bargaining Council of Leather Industry of South Africa’s Collective Agreement, to non-parties regarding the Sick Benefit Fund effective from the second Monday after the date of publication of this notice (21 February 2022) until 30 June 2027.
- The Minister of Employment and Labour, in Government Gazette No. 45894 dated 11 February 2022, extended the National Bargaining Council of Leather Industry of South Africa’s Collective Agreement, to non-parties regarding the Agency Shop effective from the second Monday after the date of publication of this notice (21 February 2022) until 30 June 2027.
- The Minister of Employment and Labour, in Government Gazette No. 45894 dated 11 February 2022, extended the National Bargaining Council of Leather Industry of South Africa’s Collective Agreement, to non-parties regarding the Provident Fund effective from the second Monday after the date of publication of this notice (21 February 2022) until 30 June 2027.
- The Minister of Employment and Labour, in Government Gazette No. 45905 dated 11 February 2022, extended the operation period of the Main Collective Agreement of the National Bargaining Council for Road Freight and Logistics Industry until 29 February 2024.
- The Minister of Employment and Labour, in Government Gazette No. 45931 dated 18 February 2022, extended the National Bargaining Council of Leather Industry of South Africa’s Collective Agreement, to non-parties with regards to the Administration Expenses effective from the second Monday after the date of publication of this notice (21 February 2022) until 10 May 2028.
- The Director of Collective Bargaining Stephen Rathai, in Government Gazette No. 45931 dated 18 February 2020, extended the period of operation of the collective bargaining fee of the Bargaining Council for the Furniture Manufacturing Industry of the Western Cape’s Collective Agreement until 27 January 2023.
The Department of Employment and Labour in Government Gazette No. 45954 dated 25 February 2022, published a list of Bargaining Councils that have been accredited by the CCMA in terms of the provisions of the Labour Relations Act,1995 (Act No. 66 of 1995) for conciliation and/or arbitration and/or inquiry by an arbitrator, with the terms of accreditation for the period 01 February 2022 to 28 February 2025:
- National Bargaining Council for the Electrical Industry of South Africa: Accredited for conciliations only from 1 February 2022 until 31 January 2023 subject to the terms set out in the gazettes accompanying attachment.
- National Bargaining Council for the Road Freight and Logistics Industry: Accredited for conciliations and arbitrations (including Inquiry by Arbitrator) from 1 March 2022 until 28 February 2025 on condition that the postponement rate is improved upon and subject to the terms set out in the gazettes accompanying attachment.
- Bargaining Council for The Furniture Manufacturing Industry, KZN: Accredited for conciliations and arbitrations (including Inquiry by Arbitrator) from 1 February 2022 until 30 June 2023 on condition that all CCMA efficiencies and standards are met and subject to the terms set out in the gazettes accompanying attachment.
Department of Home Affairs:
VISA Development regarding Zimbabwe Exemption Permits:
The Minister of Home Affairs, Dr Aaron Motsoaledi, issued a directive dated 5 January 2022, extending the exemption granted to Zimbabwean nationals for a period of 12 months until 31 December 2022 to allow the exemption holders to apply for one of the visa options for which they may qualify, as provided for in the Immigration Act, 2002 (Act No. 13 of 2002). Therefore, no Zimbabwean exemption holders can be arrested, detained or ordered to depart from South Africa during this time for not having a valid exemption permit. The holder of the exemption will be permitted to enter into or depart from RSA during this time period.
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. 45921 dated 14 February 2022, extended the national state of disaster from 15 February 2022 to 15 March 2022.
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993):
The Chief Inspector of Occupational Health and Safety, published a notice dated 2 February 2022, to employers or users requiring training licences in terms of DMR 18(11), stipulating that the extension granted on the implementation of training and the renewal of carry cards was withdrawn subject to the following conditions:
- The training of operators must resume immediately and must be conducted in accordance with Covid-19 rules and regulations.
- Operators whose licences (carry cards) were about to expire or had expired during lockdown, have 120 days as of 2 February 2022 to renew their licences.
Mine Health and Safety Act, 1996 (Act No. 29 of 1996):
- The Chief Inspector of Mines, David Msiza, in Government Gazette No. 45903 (no. 1754) dated 11 February 2022, issued Guidelines for a Mandatory Code of Practice for an Occupational Health Programme on Thermal Stress.
- The Chief Inspector of Mines, in Government Gazette No. 45903 (no. 1755) dated 11 February 2022, issued Guidelines for a Mandatory Code of Practice for an Occupational Health Programme (Occupational Hygiene and Medical Surveillance) for Noise.
National Environmental Management Waste Act, 2008 (Act No. 59 of 2008):
- The Minister of Forestry, Fisheries and the Environment, Barbara Dallas Creecy, in Government Gazette No. 45907 dated 11 February 2022, announced the amendments to the list of waste management activities that have, or are likely to have, a detrimental effect on the environment. Furthermore, the National Norms and Standards for Organic Waste Composting will come into operation as of 11 February 2022.
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.
Compiled by:
SERR Synergy Research Division
Lané Boshoff – research@serr.co.za