Home

 

Managing COVID-19 in the Workplace

 

(New Prescriptions and the Way Forward)

 

  

 

1 Day interactive online course

 

27 May 2022 (08:30 - 16:00) Interactive Online Course

 

Online Booking form

 

Click here to download registration forms for 27 May 2022 (08:30 - 16:00) Interactive Online Course

 

 

Course content

 

Module 1:  Background and scope of guidance 

  • Introduction and background to COVID-19

  • The fundamentals of COVID-19 (routes and modes of transmission, signs, symptoms, incubation period, variants, and mutations)

 

Module 2:  Update on the latest laws and prescriptions pertaining to the management of COVID-19 

  • Termination of the National State of Disaster

  • New prescriptions and directives pertaining to COVID-19

 

Module 3:  COVID-19 employer, employee, and third-party obligations 

  • COVID-19 and the Occupational Health and Safety Act

  • The general duties of employers towards employees and other persons

  • Responsibilities of employees

 

Module 4:  New Code of Practice for Managing Exposure to SARS-COV-2 in the Workplace, 2022 

  • Introductory provisions (Introduction, the purpose of this code, interpretation, application)

  • Risk assessment and plan (Risk assessment and plan, contents of risk assessment and plan)

  • Administrative measures (Notification of workers, symptom reporting and isolation of workers, ventilation, specific PPE, vaccination of employees, small businesses, worker obligations, refusal to work, no deduction from employee’s remuneration, monitoring and enforcing the Code, limited application to mines, mining areas and works)

 

Module 5:  OHS Act – Newly amended Hazardous Biological Agents Regulations, 2022 

  • Classification of Covid-19 (now classified as a group 3 Hazardous Biological Agent)

  • Explanation of the newly amended Hazardous Biological Agents Regulations relating to the management of Covid-19 for the workplace.

 

Module 6:  National Health Act - amendments to the Regulations relating to the surveillance and the control of notifiable medical conditions (proposed permanent long-term replacement to South Africa’s state of disaster COVID regulations)

 

a) National Health Act - proposed amendments to the Regulations relating to the surveillance and the control of notifiable medical conditions (out for public comment) 

  • Refusal of medical examination, prophylaxis, treatment, isolation, quarantine, and protocols in public areas and gatherings

  • Isolation or quarantine of persons, Isolation of symptomatic and asymptomatic persons, repeat testing

  • Designation of quarantine facilities, criteria for self-quarantine, self-isolation, and contact tracing

  • General measures to contain the spread of notifiable medical conditions that can spread through droplets or aerosol

  • Persons entering and exiting the Republic

  • Aircraft crew on international travel, vessel crew, local air travel, cross border freight operators

  • Control measures for public places and gatherings

  • Compliance officers 

 

b) National Health Act – newly published amendments to the Regulations relating to the surveillance and the control of notifiable medical conditions (published on 4 May 2022)

  • Wearing of face masks to contain the spread of COVID-19

  • Regulation of gatherings to contain the spread of COVID-19

  • Regulation of persons entering the country to contain the spread of COVID-19

  • Amendment of Annexure A to the Regulations

 

Module 7:  Environmental cleaning, disinfection and decontamination of the workplace 

  • Routine cleaning and disinfecting of the workplace

  • Decontamination and deep cleaning procedures for possible infected work areas

  • Decontamination of company transport vehicles

  • Prescribed use of hazardous chemical agents for cleaning, disinfection and decontamination of the workplace

 

Module 8:  Processing of COVID-19 claims 

  • Criteria, diagnosis impairment for Coronavirus Disease (COVID-19)

  • Benefits, claims procedure, documentation, and submissions of COVID-19 claims

 

Module 9:  COVID-19 - Health and Safety Representatives and Committee’s Involvement 

  • The role of health and safety representatives and committees in the management of COVID-19

 

Module 10:  Recording and Investigation of COVID-19 Related Cases 

  • Record keeping requirements

  • Prescribed investigation for COVID-19 incidents

 

Background: 

  • The National State of Disaster, which mainly regulated Covid-19 in South Africa was officially terminated on the 4th of April 2022. With the termination, all the Regulations and Directions made under the Disaster Management Act were repealed with immediate effect, with the exception of a few transitional measures.

  • The Covid-19 pandemic would however be managed in terms of the National Health Act. Draft health regulations have been published for public comment and once this closes on April 16 and comments have been considered, the new regulation will be finalised and promulgated. The intention is that these regulations will replace the Covid-19 control measures that were in place and published under the Disaster Management Act.

  • On the 15th of March, the minister of Employment and Labour published a Code of Practice for the Managing Exposure to SARS-COV-2 in the Workplace, 2022. The purpose of this Code is to guide employers and employees in managing exposure to SARS-CoV-2 in the workplace.

  • The Department of Employment and Labour has also listed SARS CoV2 (Covid-19) as a group 3 hazardous biological agent (HBA) under South Africa’s Hazardous Biological Agents regulations. The newly amended regulations are applicable to every employer or self-employed person at a workplace where exposure to an HBA (i.e., Covid-19) may occur.

 

Purpose of the course: 

  • This course was written to update and assist employers with the latest COVID-19 requirements for workplaces.

  • It provides attendees with critical information to manage COVID-19 effectively after the termination of the National State of Disaster.

  • It contributes towards providing and maintaining a safe and healthy work environment thus ensuring workplace compliance with statutory requirements.

 

The course will be useful for: 

  • COVID-19 compliance officers,

  • Health and safety practitioners,

  • The CEO/ Managing Director,

  • Directors - Section 16(2) appointees,

  • Compliance officers and security officers,

  • Human resource managers,

  • Managers and supervisors,

  • Health and safety representatives and committee members,

  • Union representatives,

  • Any person interested in being COVID-19 compliant.

 

Price:

  • Price per delegate: Interactive Online Course R 2440-00 

  • Price include course material and certificates. 

 

For further information contact:

 

 

Online Booking form

 

Click here to download registration forms for 27 May 2022 (08:30 - 16:00) Interactive Online Course

 

 

 

Is commission included in the calculation of minimum wage?

 

In terms of the National Minimum Wage Act 9 of 2018, an employer may not pay any employee less than the prescribed minimum wage for time worked. The aforementioned is unambiguous, but can an employer pay an employee a basic salary which is less than the minimum wage, or even no guaranteed basic salary, provided that the commission earned by the employee exceeds the minimum wage as prescribed by the Act? This is what had to be determined in Atlas Finance (Pty) Ltd v CCMA & 2 others, 2022 JR57/21.

 

2022/05

By Jan du Toit

 

During 2020, I assisted one of our longstanding clients with arbitration under Section 73A of the Basic Conditions of Employment Act 75 of 1997 (the BCEA). The dispute related to an alleged underpayment in terms of the National Minimum Wage Act 9 of 2018 (the NMWA). In terms of the NMWA, an employer may not pay any employee less than the prescribed minimum wage for time worked.

 

The nature of the employer’s business was that of microlending, with sales representatives employed and responsible for securing new business. During 2018, the employer by agreement amended the commission structure of most of its sales representatives employed throughout South Africa, except for those employed in Rustenburg. The employees in Rustenburg refused to accept amended employment conditions and threatened the employer with industrial action.

 

The changes to the remuneration structure of the sale representatives, which included the earning of commission, were deemed necessary to ensure compliance in anticipation of the announcement of an effective date for the commencement of the National Minimum Wage Act 9 of 2018.

 

Facing possible industrial action, the employer abandoned its attempt to amend the remuneration structure of the Rustenburg sales representatives. The employees withdrew their dispute lodged with the Commission for Conciliation, Mediation and Arbitration (the CCMA) at the time and continued to accept, as demanded, remuneration in terms of the originally agreed remuneration structure.

 

In terms of the originally agreed remuneration structure, which was applicable to the employees by choice, their basic remuneration was below the prescribed minimum wage for the 40.5 hours that they were required to work weekly. However, in addition to their basic remuneration, the employees also earned commission for work performed during their working hours. The commission was calculated as a percentage of the value of successful new business secured per month. The basic remuneration of the employees combined with the commission they earned by far exceeded the requirements of the NMWA. To ensure full compliance with the NMWA, the employer also committed to top up employees’ remuneration to be at least equal to the minimum wage if an employee failed to generate sufficient commission.

 

During the period of January 2019 to October 2020, after the NMWA became effective, the employees were paid remuneration consisting of their basic agreed salaries as well as commission. Their basic salaries combined with their commission exceeded the minimum wage prescribed by the NMWA for 40.5 hours of work per week. Despite the aforementioned, a dispute was lodged with the CCMA in terms of Section 73A of the BCEA. The employees were advised and assisted by Mr Isaac Mokgatle from Workers Against Regression, a registered trade union. Mr Mokgatle was of the view that the employees’ basic salaries had to be increased to be equal to the minimum wage for 40.5 hours of work per week. This was despite the fact that their basic salaries and commission combined by far exceeded the minimum wage for the time worked.

 

Currently, there is no uniform stipulation of which earning components should be included in the calculation of national minimum wages. The BCEA defines remuneration as “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State”. “Wages” is a component of remuneration paid to an employee “in respect of ordinary hours of work, or if they are shorter, the hours an employee ordinarily works in a day or week”.

 

The specification of “ordinary hours” is important because it excludes, for example, productivity or overtime pay. In South Africa, wages are calculated based on the ordinary hours of work, which ensures that workers receive premium payments for work done outside of ordinary hours.

 

Internationally, regarding productivity and performance pay, there is no standard definition of the components of a National Minimum Wage (NMW), however, if one has regards to international standards, productivity and performance pay are considered supplemental forms of remuneration. They specifically include commission work, piecework and tipped work. Commission work refers to any system under which an employee receives supplemental pay based on the value or volume of sales.

 

At arbitration, Mr Mokgatle submitted that commission earned by an employee cannot be considered for the purpose of determining whether such individual is paid less, equal to or more than the prescribed NMW. It was further submitted that the employees were paid a basic salary less than the NMW, and that despite them earning a basic salary combined with commission for work done during normal working hours, such commission must, in terms of the definition of “wage” and as per Sections 4(4) to 4(7) of the NMWA, be excluded for the purposes of the dispute before the Commission.

 

I submitted on behalf of the employer that commission earned for work done during an employee’s normal working hours cannot be excluded for the purposes of determining whether an employee is paid less than, equal to or more than the NMW. The employees earned in excess of the prescribed NMW and Section 5(1) of the NMWA does not list commission as an exclusion for the purposes of calculating an employee’s wage. Furthermore, Section 5(3) of the NMWA also provides for the payment of an employee on a basis other than the number of hours worked, provided that such employee is not paid less than the NMW.

 

By virtue of his submissions at arbitration, Mr Mokgatle effectively introduced a mutual interest dispute pertaining to an increase in remuneration under the guise of a dispute related to the NMWA.

 

Commissioner Rakale from the CCMA in Rustenburg held that the employer was in contravention of the NMWA. He, furthermore, ordered that an amount in excess of one million rand be paid to the employees as backpay in addition to a fine as provided for in the BCEA.

 

We approached the Labour Court on review and submitted that Commissioner Rakale:

 

  1. committed a material error of law by excluding commission earned by the third respondents (the employees) in determining whether the applicant (the employer) complied with the NMWA.

 

  1. misdirected himself to such an extent that the outcome of the arbitration amounts to a gross irregularity, in that his conclusion was not objectively correct, and that a reasonable arbitrator would not have reached the same conclusion considering the evidence available at the hearing of the matter.

 

  1. misdirected himself by relying solely on the definition of “wage” as found in the NMWA, and by failing to properly consider the provisions of Sections 5(1) and 5(3) of the NMWA.

 

  1. misdirected himself by finding that the employer did not pay the employees according to the hours they worked, which is in stark contradiction to Section 5(3) of the NMWA.

 

  1. misdirected himself by failing to consider that employees whose basic salaries and commission payments were not sufficient to ensure compliance with the NMWA, were, as provided for in Section 5(3) of the Act, topped up to ensure compliance.

 

  1. misdirected himself by including in the calculation of the amounts underpaid the months of April, May and June 2020, during which the third respondents did not work due the lockdown imposed at the time.

 

  1. misdirected himself by applying an unknown calculation method in determining the value of alleged underpayments, resulting in amounts awarded that are inconsistent with the evidence placed before him by both the third respondents as well as the applicant.

 

  1. exceeded his powers by ordering the applicant to increase the agreed basic salaries of the third respondents.

 

Acting Judge Deane agreed and held that commission is not a discretionary payment, which is not related to an employee’s hours of work, but forms a part of the employee’s wages and that the intention was not to exclude commission from the NMW. However, commission workers must still be paid at least the NMW. Workers do not have to be paid the minimum wage for each hour worked, but they must be paid the minimum wage, on average, for the time worked in a pay reference period.

 

It was, furthermore, held that the Commissioner misdirected himself by failing to take into account the evidence placed before him showing that the employees were paid in excess of the NMW. He further misdirected himself by failing to consider that the employer acknowledged that employees whose basic salaries and commission payments were not sufficient to ensure compliance with the NMWA, were, as required per Section 5(3) of the NMWA, topped up to ensure compliance.

 

The Commissioner’s decision to exclude commission earned by the employees in determining whether the applicant indeed complied with the NMWA was not a reasonable decision and constituted a material error of law. The Commissioner misdirected himself to such an extent that the outcome of the arbitration award amounted to a gross irregularity. It was ordered that the employer was not in breach of the NMWA by virtue of including commission earned in calculating the minimum wages of employees.

 

Jan du Toit is a director at Labour Guide and can be contacted at [email protected].

 

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

 

 

 

 

 

 

 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Courses and Workshops

 

 

May

Management and Leadership Skills

25, 26 & 27 May 2022 (08:30 - 16:00)

Interactive Online Course (Postponed)

The Formulation of Disciplinary Charges New Course

27 May 2022 (09:00 - 13:00)

Emperors Palace: Convention Centre

Managing COVID-19 in the Workplace New Course

27 May 2022 (08:30 - 16:00)

Interactive Online Course 

 

June

New Code of Good Practice: Harassment in the Workplace New Course

03 June 2022 (09:00 - 12:00) (Fully Booked)

Emperors Palace: Convention Centre (Click here for new dates)

09 June 2022 (09:00 - 12:00)

Interactive Online Course

Employment Equity Committee Training

10 June 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Managing Poor Performance/ Incapacity

23 June 2022 (09:00 - 12:00)

Interactive Online Course

The Formulation of Disciplinary Charges New Course

24 June 2022 (09:00 - 13:00)

Interactive Online Course

Strategic Human Resources Management (HRM) and - Business Partnering

01, 02 & 03 June 2022 (08:30 - 16:00)

Interactive Online Course

22, 23 & 24 June 2022 (08:30 - 16:00)

Emperors Palace: Convention Centre

Compensation for Occupational Injuries and Diseases Course

23 June 2022 (08:30 - 16:00)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

30 June 2022 (08:30 - 12:30)

Interactive Online Course

 

July 

Employment Equity Committee Training

01 July 2022 (09:00 - 16:00)

Interactive Online Course

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Workshop Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

28 July 2022 (08:30 - 16:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

 

August

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

 

Our Clients 

 

Download the Labour Guide Apps

Android App On Google Play

Android App On Google Play