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The Tobacco Products Control Act provides for the protection of non-smokers - it does not provide any benefit or protection for smokers.

In addition, smoking in the workplace is not regulated by Labour Law but only by the above-mentioned Act. In terms of this Act, the employer is obliged to take steps to protect his non-smoking staff from the cigarette smoke of the smokers. There is no obligation whatsoever on the employer to provide smoke breaks, and indeed if he does provide smoke breaks he is entitled to insist that those employees must work in the time taken for' smoke breaks'  after hours, without additional remuneration, or he can total up the 'smoke breaks time' and deduct it from wages at month end.

         

The employer is entitled to ban smoking completely on his building or in the workplace if he wishes to, and he can designate any area of his choice to be the smoking area. This could be the roof of the building, or the car park, and the employer is under no obligation to provide an alternative smoking area in the event of inclement weather. In short, the employer is under no obligation to facilitate the addiction of the smoker to the drug nicotine, just as he is under no obligation to facilitate the addiction of any employee who may be addicted to alcohol, narcotics and so on. When you consider that these no obligation on the employer to provide an alcoholic employee with ' drink breaks', why should there be an obligation on him to provide' smoke breaks' to an Employee who is addicted to nicotine ?

       

The employer is obligated to comply with the following regulations in the Act if he wishes to provide a smoking area:

Section 3 :  Tobacco Products Control Act :

 

Note : A "workplace" falls within the definition of and is regarded as a  "public place."

1) An employer, owner, licensee, lessee or person in control of a public place may designate a portion of a public place as a smoking area, provided that-

a) the designated smoking area does not exceed 25% of the total floor area of the public place;

b) the designated smoking area is separated from the rest of the public place by a solid partition and an entrance door on which the sign "SMOKING AREA" is displayed, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background;

c) the ventilation of the designated smoking area is such that air from the smoking area is directly exhausted to the outside and is not re-circulated to any other area within the public place;

d) the message: "SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NONSMOKERS. FOR HELP TO QUIT PHONE (011) 720 3145" is displayed at the entrance to the designated smoking area, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background; and

e) notices and signs indicating areas where smoking is permitted and where it is not permitted must be permanently displayed and signs indicating that smoking is not permitted must carry the warning: "ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE".

 

Section 6 , 7 , 8 , 9 : Tobacco Products Control Act.

6)  An employer, owner, licensee, lessee or person in control of a public place must ensure that no person smokes anywhere other than in the designated smoking area in that public place.

 

7) An employer must ensure that-

a) employees who do not want to be exposed to tobacco smoke in the workplace are protected from tobacco smoke in that workplace; and

b) employees may object to tobacco smoke in the workplace without retaliation of any kind. 

 

8) Employers must have a written policy on smoking in the workplace, and the policy must be applied within three months from the date of coming into operation of the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999). 

9) Any employer, owner, licensee, lessee or person in control of any public place or part of a public place may totally prohibit smoking in that place.

 

For more information contact [email protected]  

 

The four-day working week and its impact on South African labour law: Are we ready?

 

If there is one thing we can learn from the COVID-19 pandemic, it is that many employees can work from anywhere and the “normal” 9 to 5 is no longer palatable to the upcoming workforce.

 

2022/07

By Hedda Schensema, Director and Tshepiso Rasetlola, Associate, Employment Law, Cliffe Dekker Hofmeyr

 

Over the past two years, many employers have had to reassess their working arrangement as a result of the pandemic. COVID-19 served as a test run on what the “new normal” has to offer in respect of the employment relationship and some working conditions. This has resulted in many employers successfully implementing a hybrid working arrangement and, in some instances, even requiring their employees to work from home indefinitely.

 

Many employers have indicated that they have experienced an increase in productivity and less stressed employees. On the flip side, however, employees have been unable to shut down and find themselves working round the clock and over and above their normal working hours. Considering the above, does this mean that South Africa is ready for a four-day working week post COVID-19?

Countries like Belgium and the UK have been able to successfully implement a four-day working week. However, given that South Africa is highly regulated in respect of its labour and employment laws, it has been argued that it would not be as seamless or easy an exercise to implement in comparison to these countries.

 

South Africa has numerous bargaining councils and sectorial agreements that regulate basic conditions of employment in the different sectors and include, inter alia, working hours. In order to be able to implement a four-day working week model, these agreements will have to be amended and their terms renegotiated to align with such a model.

 

This means an employer cannot change the terms and conditions of employment as recorded in these agreements without first consulting the relevant stakeholders, which include trade unions, workplace forums and individual employees.

 

This is a process that is consultative and which must result in consensus being reached on all aspects related to the arrangement. A failure to obtain consent prior to implementing the working model may result in a unilateral change in terms and conditions of employment by an employer. This could expose the employer to a referral by its employees in relation to unilateral changes to terms and conditions of employment.

 

In addition to this, the relevant labour and employment laws will have to be amended to cater for the working model from a regulatory point of view. Employers will need to consider their health and safety obligations towards employees in terms of the Occupational Health and Safety Act 85 of 1993, which requires an employer to, among other things, do everything reasonably practicable to protect employees’ health and safety in the workplace. In this regard, an employer’s obligations to ensure the health and safety of its employees extends to where the employee is working outside of the conventionally understood workplace, including a home office.

 

Although a four-day working week model sounds like a brilliant and exciting idea, employers will have to assess their respective sector and industry in order to establish whether it would be practicable or even feasible for its business model. Employers will also have to consider the applicable legislation and agreements regulating their sector and engage in a consultative process with the relevant stakeholders.

 

It is, therefore, perhaps premature to make a concrete finding that the four-day working week model would be possible in a highly regulated country like South Africa. We will therefore have to monitor its progress and assess from an individual employer’s business model as to whether the four-day working week would be appropriate.

 

For more information please contact Hedda Schensema at [email protected] or Tshepiso Rasetlola at [email protected]

 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com.

 

 

 

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