For the purpose of this section, notwithstanding the definition of —employee in section 3, —employee includes persons employed in operative, production or manufacturing processes not scheduled in this Agreement.
| (a) |
The basic objectives of this section will be— |
| (i) |
to further the protection of the rights of employees in cases of— |
| (aa) |
reduction in basic conditions of employment; |
| (ab) |
unfair dismissal from employment; |
| (ac) |
discrimination in terms of re-engagement and promotion opportunities and procedures; and diminution of employment opportunities; |
| (ii) |
to further the protection of the rights and procedures of employers and management's to— |
| (aa) |
maintain discipline within the total labour force; |
| (ab) |
retrench employees where economic conditions or other factors occasion such a step; and |
| (ac) |
promote and recruit on merit in compliance with the Employment Equipty Act; |
| (aa) |
provide equal employment opportunities for all groups of workers; |
| (ab) |
ensure orderly change where change can take place; |
| (ac) |
obviate friction between persons in matters of promotion and employment; |
| (ad) |
ensure consultation between employers and worker representatives regarding this section; |
| (ae) |
establish training and retraining procedures; and |
| (iv) |
to provide the necessary machinery to achieve the objectives set out in subsection (1)(a)(i) to (iii). |
| (b) |
This section provides for the employment security of existing incumbents of jobs and for their training and/or retraining and shall apply to such persons who are in the employment of the employer in the Industry on the date of coming into operation of this Agreement. |
| (c) |
Notwithstanding subsection (1)(b), the provisions of this section shall not apply to— |
| (i) |
persons who, while not currently employed in the Industry, have had not less than six months, experience in the Industry during the 12 months prior to the date of coming into operation of this section; |
| (ii) |
unemployed persons who, in terms of the Unemployment Insurance Act (as amended), received unemployment benefits during the 12-month period to the coming into operation of this section and who qualified for such benefits as a result of employment in the Industry and who immediately prior to becoming unemployed were employed in the Industry; |
| (iii) |
such other persons as the Council may determine from time to time. |
| (B) |
Security of employment |
| (a) |
No employer shall determine the employment of or promote an employee to a higher rated work category unless he has complied with the provisions of this section. |
| (b) |
Employers in the Industry shall provide employees with security of employment at conditions relating to their particular work category at the date of coming into operation of this section and for the duration of this Agreement, subject to compliance with— |
| (i) |
the normal requirements of disciplinary procedures; and |
| (ii) |
provisions regarding the retrenchment of employees owing to shortage of work or other circumstances in the establishment, subject to subsections (3) and (4) hereof. |
| (C) |
Retrenchment of employees |
| (a) |
If there are lay-offs and/or retrenchments of employees on account of shortage of work or other circumstances in the establishment, the employer shall, not later than seven days after the date of retrenchment, notify the Council in writing of— |
| (i) |
the number of employees retrenched; |
| (ii) |
the effective date of the retrenchments; |
| (iii) |
the occupational categories scheduled in the Agreement of the employees retrenched; |
| (iv) |
the basis of identifying employees retrenched; and |
| (v) |
the specific reason for retrenching the employees. |
| (b) |
The procedure to be followed in the event of lay-offs, relocation or closure of an establishment, retrenchments, redundancies and the operation of limited-duration contracts of employment shall be as provided for in the Act. |
| (c) |
Where non-observance of the procedure under the Act gives rise to a dispute, such dispute shall be regarded as an alleged unfair dismissal dispute and may be dealt with by the Bargaining Council and, if necessary, the Labour Court in terms of section 191 of the Act. |
| (a) |
In the case of retrenchment an employer, subject to sub-clause (2), shall pay to each employee who is retrenched, in addition to any other amounts to which he is entitled in terms of this Agreement on termination of service, a severance payment of a minimum of one week's wages for each completed year of service together with the following: |
| (i) |
Pro rata allowance(s) where applicable; |
| (iii) |
an amount equal to the weekly employer contribution to any applicable benefit funds of which the employee was a member at the time of retrenchment; in respect of each completed years' service with the same employer; and |
| (vi) |
Notice pay calculated as follows: |
| ➢ |
1 week notice for an employee with less than 6 months service; |
| ➢ |
2 weeks' notice for an employee with more than 6 months but less than 12 months service; |
| ➢ |
4 weeks' notice for an employee with more than 12 months but less than 5 years' service; |
| ➢ |
5 weeks' notice for an employee with more than 5 years but less than 10 years' service; |
| ➢ |
6 weeks' notice for an employee with more than 10 years but less than 15 years' service; and |
| ➢ |
7 weeks' notice for an employee with more than 15 years' service. |
| (c) |
An employee and any employee representative shall at either's request consult in good faith at plant level with a view to reaching agreement on a higher severance payment than that stipulated in paragraph (a). |
| (E) |
Re-employment of retrenched employees |
Where an employer has retrenched employees he shall, if he subsequently engages additional employees, as far as is practicable give preference to the re-engagement of those employees who were retrenched from his establishment who are qualified and available to undertake the categories of work required by the employer. If the same category of work becomes available such retrenched employee will, for a period of three years from date of retrenchment, be offered employment at the rate he/she was employed at, at the time of retrenchment. In addition increases agreed to during the employee's period of absence will also be added on to the rate of pay of such employee. In the event a retrenched employee is offered a lower level of employment such offer will be at the appropriate and applicable rate of the position offered.
| (F) |
Promotion, training and/or retraining |
(a)
| (i) |
Where promotion opportunities occur within the establishment of an employer, the employer shall specify the requirements of candidates for promotion in terms of— |
| (aa) |
educational or other qualifications; |
| (ab) |
training and/or retraining; |
| (ac) |
experience and/or related experience; and |
| (ad) |
Employment Equity targets. |
| (ii) |
the employer shall, on request, furnish this information to the Council. |
| (iii) |
The employer shall be free, subject to the provisions of subsection (7) hereof, to promote on the basis of merit any employees from among those of his employees who meet the requirements specified for the job. |
| (a) |
Should a disagreement arise relating to the application and/or interpretation of the provisions of this section, the aggrieved party/parties shall, within 14 days of the disagreement arising, be entitled to refer the matter to the Regional Council of the area concerned. The Regional Council shall forthwith and not later than 30 days, cause an investigation to be made into the facts and it in its view, there has been a contravention of the objectives of this section it shall call upon the offending party/parties within such period to remedy the contravention. |
| (b) |
Any decision of the Regional Council that is served on the party/parties shall be final and binding and the said party/parties shall comply herewith. Should the Regional Council and/or delegated committees fail to determine the matter constituting the disagreement within 30 days of receipt or of such extended period as the Regional Council may determine, either of the aggrieved parties may invoke arbitration and the award of the appointed arbitrator(s) shall be final and binding and shall be observed by the party/parties. arbitration shall be within the terms and provisions of the Council's Constitution: Provided that nothing therein contained shall preclude the Council from appointing a person/persons who shall, for the purposes of this section, act as standing arbitrator(s) for the time being. |
| (c) |
For the purposes of dealing expeditiously with the matters contained in this section, Regional Councils are hereby empowered to establish (a) committee(s) consisting of employer and employee representatives and to delegate such specific powers as deemed necessary to such committee(s). Such committee(s) shall dispose of all matters referred to it/them within 30 days unless it/they agree to an extension, when the provisions of subsection (7)(b) shall mutatis mutandis apply. |
South African Council for Educators Act, 2000
