| 9.1 |
As per the provisions of sub-clause 9.1 of Part 1 of this Agreement. |
| 9.2. |
The total number of temporary employees shall not exceed 20% of the total number of planned employment at any establishment. |
| 9.3. |
Temporary contracts are defined as a contract of employment that terminate on: |
| • |
The occurrence of a specified event |
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The completion of a specified task or project |
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A fixed date other that an employee's normal or agreed retirement age |
| 9.4. |
Temporary contracts are binding contracts and due respect should be provided by employers to meet the obligations on the terms and conditions of the temporary fixed contact. |
| 9.5. |
All establishments shall comply with the provisions of Section 198B of the Labour Relations Act (as amended), and apply the relevant provisions respectfully to avoid any exploitation. The use of Labour Brokers to supply labour in the Blanket sub-sector is not allowed or permitted. |
Remuneration/Benefits:
| 9.6. |
Temporary Employees will be remunerated at 15% below the minimum hourly rate per grade for all periods of employment during the period of operation of the Agreement , provided that hourly rate per grade is not less than the National Minimum Wage per hour. |
| 9.7. |
Temporary employees employed on or after 01 January 2021 , will be remunerated according to the following table provided that the minimum hourly rate is not less than the National Minimum Wage per hour: |
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Experience
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Remuneration per hour
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Year 1 of continuous employment:
Adding the fixed term contract spells to constitute 1 year relevant experience
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15% below the hourly rate for the position and grade
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Year 2 of continuous employment:
Adding the fixed term contract spells to constitute 2 years relevant experience
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10% below the hourly rate for the position and grade
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Year 3 of continuous employment:
Adding the fixed term contract spells to constitute 3 years relevant experience
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5% below the hourly rate for the position and grade
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Year 4 of continuous employment:
Adding the fixed term contract spells to constitute 4 years relevant experience
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Minimum hourly rate and deem permanent subject to sub-clauses 9.16 to 9.18
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This provision will not affect experienced temporary employees. Experience will mean, temporary employees must have been employed on temporary contracts in the industry in the 5 years immediately preceding the date of employment in order to qualify for the minimum hourly rate
| 9.8. |
Employees in the employ of establishments shall not be entitled to an annual bonus and provident membership for any period of employment during the period of operation of Part 1 of this Agreement. |
| 9.9. |
However,temporary employees employed beyond six months, will be paid a pro-rata annual bonus of 4.8% in December 2020 and 5% in December 2021 of their actual basic earnings for the months that exceeded the six months in that year. |
Duration:
| 9.10. |
Employers may not employ a temporary employee for more than six Months. |
| 9.11. |
Temporary employees who are employed on three months or shorter fixed term contracts shall continue to enjoy the protections of the Labour relations Act (as amended) that existed prior to the Labour Relations Act of 2015 law amendments.The following protections are critical: |
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Not to abuse a fixed term contract by using it as substitute for probation |
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Where an employee works beyond the expiry date of the contract without signing a new agreement. |
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Any argument that employment has become permanent |
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Any argument relating to an expectation of renewal or permanent employment. |
| 9.12. |
For temporary contracts that are employed for a period of longer that three months, and regarded as enforceable, the following three main requirements must be met: |
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The nature of the work must be of a limited duration or there must be some other justifiable reason for fixing the term of the contract. |
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The fixed term contract must be in writing |
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The contract must specify the justifiable reason |
| 9.13. |
The justifiable reasons for employing a temporary employee for a fixed term period of longer than three months. are the following: |
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Replacing another employee who is temporarily absent from work. |
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Engaged on account of a temporary increase in work volume,which is not expected to endure beyond 6 months |
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A student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job profession. |
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Engaged to work exclusively on a genuine and specific project that has a limited or defined duration. |
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A non-citizen who has been granted a temporary work permit. |
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Engaged to perform seasonal work. |
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Engaged in a position which is funded by an external source for a limited duration |
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The agreed retirement age has been reached in the respective establishments. |
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Any other justifiable reason that have not been listed in the Labour Relations Act (as amended). |
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If a temporary employee be employed for three months or less, the justifiable reasons above do not apply. |
| 9.14. |
Any re-employment of a temporary employee beyond 6 months shall be by agreement between the employer and employee at plant level. |
| 9.15. |
As and when the temporary position in terms of the labour profile is not redundant for a continuous period of 12 months, the temporary employee will be employed for the full 12 months. |
This means that the temporary employee shall not be replaced by another temporary employee in that specific position during the twelve month period.
Job Creation:
| 9.16. |
Temporary employees on fixed term contacts must be given equal access to opportunities to apply for vacancies. |
| 9.17. |
A temporary employee will have first preference to permanent vacancies based on relevant experience and appropriate skills criteria. Employers to implement a selection matrix and points rating system to be used as a guideline when filling permanent vacancies. |
| 9.18. |
The permissible selection criteria and rating system to include at least the following: |
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Talent (knowledge, skills, behaviour, commitment) |
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Performance linked to targets |
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Temporary contract repeats |
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Average lengths of temporary contract repeats |
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NQF 2 relevant qualifications and Recognition of Prior Learning (RPL) |
Additional Protection Measures:
| 9.19. |
The following additional provisions are aimed at protecting temporary employees: |
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The employees employed in a temporary capacity for a fixed period on contract for longer than three months without a justifiable reason in writing, may not be treated less favourably than someone employed on a permanent basis performing the same or similar work. This protection also extends to Part Time employees |
| • |
Where temporary employees are employed on contracts exceeding 12 months, the employee shall be entitled to severance pay upon termination. |
| • |
Where an employer had failed to review a temporary contract where there as a reasonable expectation of such renewal or where the employer offered to renew it on less favourable terms, the Act will give rise to an unfair dismissal claim. The onus to prove the expectation remains on the employee. |
| 9.20. |
Termination of a temporary fixed term contact prior to the stated termination date, warrants justifiable reasons that can be verified. |
| 9.21. |
Unfair dismissal disputes may include the following: |
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Reinstatement of the employee |
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Re-employment of the employee |
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Order compensation up to 12 months' remuneration |
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Order compensation up to 24 months' remuneration if dismissal is found to be automatically unfair. |
| 9.22. |
No temporary contracts will be concluded for a period of less than 3 (three) months. However, labour utilization within 3 months period will be determined by the Employer based on operational requirement principles but not linked to short time and or retrenchments. |
[Part 2 Annexure D (B)(9)(9.22) inserted by Notice No. 1343, GG47302, dated 14 October 2022]
South African Council for Educators Act, 2000
