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Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

Building Industry Bargaining Council (Cape of Good Hope)

Re-enactment and Amendment of Main Collective Agreement

4. Definitions

 

 

(1) Any expressions used in this Agreement which are defined in the Labour Relations Act, 1995, shall have the same meaning as in that Act, and any reference in this Agreement to an Act shall include any amendment to such Act; further, unless the context otherwise indicates—

 

"Act"

means the Labour Relations Act, 1995;

 

"Area A"

means the Magisterial Districts of The Cape, Wynberg , Simonstown, Goodwood, Mitchells Plain Bellville, Kuils River, Somerset West and Strand;

 

"Area B"

means the Magisterial Districts of Paarl, Wellington, Stellenbosch;

 

"Area C"

means the Magisterial District of Malmesbury;

 

"Area D"

means the Municipal Area of Overstrand";

 

"apprenticeship"

means a learner registered with the Construction SETA as an apprentice;

 

"Artisan"

means a person who is registered as such in terms of clause 7 (6) of this Agreement;

 

"assistant floor layer"

means an employee who is registered as such with the Council and who works under the supervision of a floor layer;

 

"block"

means a walling unit of which the face dimensions exceed either 300mm in length or 150mm in height;

 

"blocklayer"

means any person who is registered as a Learner T2 with the Council and who is engaged in the laying of blocks as defined in this Agreement, on any type of construction, or the laying of paving slabs, precast concrete channels and kerbs;

 

"Building    Industry"    or   "Industry"

means,   subject   to   the   provisions   of   any   demarcation determination made in terms of section 76 of the Labour Relations Act, 1956, and without in any way limiting the ordinary meaning of the expression, the industry in which employers and their employees are associated for the purpose of erecting, completing,  renovating,  repairing, maintaining or altering buildings  or  structures  and/or  making  articles for  use  in the  erection,  completion  or  alteration  of buildings  or structures,  whether  the work  is performed,  the  material  is prepared or the  necessary articles  are  made  on  the  sites  of  the  buildings  or  structures  or  elsewhere:  Provided  that  such manufacturing activities shall be limited to the specific manufacturing activities that are mentioned in the following  trades or subdivisions thereof,  and shall further  be limited to the carrying out of such activities  by  an  employer  who  is  associated  with  his  employees  for  the  purpose  of  erecting, completing, renovating, repairing, maintaining or altering buildings or structures for use by him in the conducting of building work, and includes all work executed or carried out by persons therein who are engaged in the following trades or subdivisions thereof, including excavations and the preparation of sites for  buildings  as well  as the demolition  of  buildings,  unless such  demolitions  were  not  carried  out for the  purpose of  preparing the  sites for  building  operations  but does  not  include  clerical  employees  and administrative staff, nor the wiring of or installation in buildings of lighting, heating or other permanent electrical fixtures and the installation, maintenance or repair of lifts in the buildings;

 

Asphalting, which includes covering floors or flat and/or sloping roofs, waterproofing or damp‑proofing basements or foundations, whether or not with prepared roll roofing or asphalt sheeting having glazed or unglazed surfaces, whether or not using tar, macadam, or any other type of solid or semi-solid asphalt, mastic or emulsified asphalt or bitumen's, applied either hot or cold to such roofs, floors, basements or foundations;

 

bricklaying, which includes concreting and fixing glass bricks, concrete blocks, slabs or plates, tiling walls and floors, jointing brickwork, pointing, paving, mosaic work, facing work in slate, in marble and in composition, drain laying, slating, roof tiling, cement-caulking earthenware pipes, bituminous work, asphalting and sheeting, and the erecting of prefabricated concrete structures or garden walls and/or boundary walls with posts or slabs;

 

concrete work, which includes the supervision of concrete being placed in situ and levelling the surfaces thereof;

 

French polishing, which includes polishing with a brush or pad, and spraying with any composition;

 

Floor laying and wall covering - Flooring which includes laying and fixing of floors of wood, mosaic, composition, rubber or any other material; sandpapering of same, and the fixing of all types of flooring or wall coverings in tile or sheets, including resilient flooring, linoleum, inlaid linoleum, althoid, asphalt tiles or asphalt based materials, cork, rubber, carpeting, vinyl and plastic compositions; supervision of artisan's assistants engaged on floor laying and flood and wall covering;

 

glazing, which includes the cutting and/or fixing of all kinds of glass or other like products into the rebates formed in wooden or metal doors, windows, frames or like fixtures, and all operations incidental thereto;

 

joinery, which includes the fixing of all wooden fittings and the manufacture of all articles of joinery incidental to such fittings, whether or not the fixing in the building or structure is done by the person making or preparing the article used, including cupboards, kitchen dressers or other kitchen fixtures which accrue to the building as a permanent part thereof;

 

light-making, which includes the manufacture and/or fixing of lead and/or metal lights and display signs, other than electric lights or signs and glazing related thereto;

 

masonry, which includes stone masonry, stone-cutting and building (also the cutting and building of ornamental and monumental stonework), concreting and fixing or building pre-cast or artificial stone or marble, paving, mosaic work, pointing, wall and floor tiling, operating a portable spinner and flexible cutting, finishing and other stone working machine, stone-polishing machinery, and sharpening mason's tools and drawing, designing and setting out of letters and enrichments; cutting and carving of letters by hand and pneumatic hammer; final surfacing and finishing of the material whether or not the fixing in the building or structure is done by the person making or preparing the article used;

 

Mass-manufacturing section: of the building industry means that section of the building industry in which activities are carried out in connection with the mass-manufacturing in off-site workshops, using repetitive processes of articles and/or component parts for articles and/or the assembly of articles which are manufactured wholly or mainly of wood in combination with plastic and/or other material, for use in the erection, completion, renovation, repair, maintenance or alteration of building or structures and include all work executed or carried out by persons in such workshops, excluding clerical employees and administrative staff, who are engaged in the mass manufacture and/or assembly of roof trusses, laminated beams, mouldings, skirting boards, paneling, ceiling boards, wood floor blocks, wooden windows and window frames, kitchen cupboards and other kitchen fittings, partitioning, shop, office and bank fittings and other wooden fixtures which are built in and/or affixed to buildings and structures.  For the purpose of this definition "wood" means wood, plywood, veneered boards, laminated boards, block boards, chip boards and/or any similar products of which wood constitutes the main component." This section includes the manufacture of wooden components which includes but is not limited to the cutting and edging of chipboard, laminating chipboard with melamine, or any other type of laminate, the manufacture of post form tops which include, but is not limited to the cutting and edging thereof with melamine;

 

metal work, which includes the fixing of steel ceilings, metal windows, metal doors, builder's smith work, metal frames and metal stairs and architectural metal work, together with the manufacture and/or fixing of drawn metal and sheet and extruded metal, whether or not the fixing in the building or structure is done by the person making or preparing the article used;

 

painting, which includes decoration, paperhanging, glazing, distempering, lime and colour washing, staining, varnishing, graining, marbling, spraying, wall decoration, applying primer and undercoat, enamelling, gliding, lining, stencilling, wax polishing, and woodwork preservation, and which also includes paint removal, scraping, washing and cleaning painted or distempered walls and washing and cleaning woodwork when such removal, scraping, washing and cleaning are preparatory to any of the said processes;

 

plastering, which includes modelling, model-making, facing casts to moulds, making and fixing plaster board ceilings and fibrous plaster or other compositions, granolithic, terrazzo and composition floor-laying, composition wall covering and polishing, operating a portable spinner and flexible cutting and finishing machine, pre-cast or artificial stone work, wall and floor tiling, paving and mosaic work, metal lathing, acoustic spraying and all processes incidental to the completion of ceilings and walls, whether or not the fixing in the building or structure is done by the person making or preparing the articles used;

 

plumbing, which includes brazing and welding, lead burning, gas fitting, sanitary and domestic engineering, drain laying, caulking, ventilating, heating, hot and cold water fitting, fire prevention installation and the manufacture and fitting of all sheet metal work, whether or not the fixing in the building or structure is done by the person making or preparing the article used;

 

shop, office and bank fitting, which includes the manufacture and/or fixing of shop fronts, window enclosures, showcases, counters, screens and interior fittings and fixtures;

 

steel reinforcing, which includes the making and erecting of shuttering and supervising the bending, placing and fixing in position of steel;

 

steel construction, which includes the fixing of metal or steel roof sheeting and/or wall cladding, all classes of steel or other metal columns, girders, steel joints or metal in any form which forms part of a building: Provided that the on-site assembly, placing and fixing in position and erection of the metal or steel framework (excluding metal or steel roof sheeting and/or wall cladding) that is to form part of a building shall be excluded from this definition when such activities are carried out by the employees of an employer who manufactures such metal or steel framework;

 

woodworking, which includes carpentry and veneer panelling and the polishing and sandpapering of same, woodworking, the manufacture of fixtures to specification for installation in specified buildings and the manufacture of stocks, machining, turning, carving, fixing corrugated iron or asbestos tile, shingling and other roof coverings, sound and acoustic material, cork and asbestos insulation, wood‑lathing, composition ceiling and wall covering, plugging walls, covering woodwork with metal and covering metal with woodwork, block and other flooring, including wood, linoleum, rubber composition, asphalt-based floor covering or cork, and the sandpapering of same, operating a of portable spinner and flexible cutting, finishing and polishing machine, shuttering and/or preparing forms of moulds for concrete, cork carpeting and any class or kind of linoleum when fixed in any building or structure, and the application of asphaltic saturated felt or fabrics to floors and/or walls and/or roofs, whether or not the fixing in the building or structure is done by the person making or preparing the article used. For the purposes of this definition "structure" means structure in the nature of, or incidental to, a building;

 

"carpet fitter"

means an employee who is registered as such with the Council and who, under the supervision of a carpet layer, is engaged in one or more of the following activities:

(a) Fixing of all types of carpet wall coverings, excluding gauging, panelling, marking out and setting out;
(b) Laying and/or fixing and/or fitting and/or stretching of all types of carpeting, excluding marking out and setting out;

 

"carpet layer"

means an employee who is registered as such with the Council and who is engaged in one or more of the following activities: The laying and/or fixing and/or fitting and/or stretching of all types of carpeting and carpet wall coverings, including the supervision of employees engaged in carpet fitting and the fitting of carpet wall coverings, and of general workers;

 

"ceiling and/or partition worker"

means an employee who is registered as such with  the Council and who, under the supervision of a ceiling and/or partition erector, is engaged in one or more of the following activities: all operations connected with the fixing of metal partition grids, excluding plumbing and levelling; all operations connected with the suspension of metal ceiling grids, excluding levelling; applying dry-wall tape and jointing compound; cutting and fitting of ceiling panels to metal grid systems; fitting dry-wall sheets; fitting partitions panels; fitting pre-cut glass; fitting skirting, glazing beads and cover strips; operating a compressed air nailing machine; operating a spray gun to apply glue or plaster mix; square cutting, using an aluminium cut-off saw; using a drilling machine; using a dry-wall screwdriver;

 

"clerical worker"

means an hourly paid worker receiving benefits applicable to learner T3";

 

"continuous employment"

means any period during which an employee has been continuously employed by the same employer, and for this purpose periods of employment with the same employer broken by not more than 60 days from date of termination of employment to re-engagement of the employee owing to the discharge or retrenchment of the employee by the employer shall be deemed to be continuous service;

 

"Council"

means the Building Industry Bargaining Council (Cape of Good Hope), registered in terms of section 29 of the Act;

 

"driver"

means an employee who is engaged in driving a motor vehicle, and for the purposes of this definition, "driving a motor vehicle" includes all periods of driving and any time spent by the driver on work connected with the vehicle or the load and all periods during which he is obliged to remain on duty in readiness to drive; further, for the purposes of this Agreement, a driver shall be classified in one of the following categories:

(a) Drivers of vehicles which require the driver to be in possession of a Code C1 licence or above;
(b) drivers of vehicles which require the driver to be in possession of a Code A, A1 or B licence or below;

 

"employee"

means—

(a) any person, excluding an independent contractor, who works for another person and who receives,or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of the employer;

 

"employer"

means any person, including an independent contractor, who employs or provides work to any person and remunerates or expressly or tacitly undertakes to remunerate him or who permits any person in any manner to assist him in the carrying on or conducting of his business; including ensuring registration with the BIBC of sub-contractor and their respective sub-contractors;

 

"fixed-term contract"

means a contract terminating on a special date stipulated in the contract;

 

"floor layer"

means an employee who is registered as such with the Council and who is engaged in one or more of the following activities: laying and fixing of all types of floor or wall coverings, including wood, composite rubber, resilient flooring, linoleum, asphalt tiles, or asphalt based materials, cork, rubber, vinyl, and plastic composition or any other similar material excluding carpeting, and supervising of assistant floor layers and general workers;

 

"general worker"

means not a Labourer L1 or L2 but a person who has developed specific skills recognised by his employer;

 

"general fund"

means Council funds excluding Sick Fund, Medical Aid Fund, Tool Fund, Pension and Provident Funds, Holiday and Bonus Funds;

 

"glazier"

means an employee who is engaged in the final fitting and fixing of glass into frames who is registered with the Council as such and who has been issued with a registration card;

 

"industrial action"

means any action contemplated in terms of the definition of "strike" and "lockout", respectively, in the Act;

 

"joinery assembler"

means an employee who is registered as a Tradesman T3, in terms of clause 7(5) of this Agreement;

 

"labourer L1"

means a worker who enters employment for the first time: Provided that once  the employee has been in continuous employment for 6 months, such worker shall automatically be promoted to "labourer L2" as defined therein;

 

"labourer L2"

means a worker who by means of promotion from L1 will receive benefit funds including pension and provident fund;

 

"leading hand/junior foreman"

means an hourly paid person in a supervisory position receiving benefits applicable to an artisan;

 

"learner T2"

means an employee who has completed 75%-99% of credits applicable to his trade, but has not completed a trade test, but could be regarded as proficient in the relevant trade;

 

"learner T3"

means an employee who has completed 55%-74% of credits applicable to his trade, but has not completed a trade test, but could be regarded as proficient in the relevant trade;

 

"learner T4"

means an employee who has completed less than 55% of credits applicable to his trade, but has not completed a trade test, but could be regarded as proficient in the relevant trade;

 

"learnership"

means a learnership registered with the Construction and Education Training Authority in terms of section 16 of the Skills Development Act, '98 which shall be subject to the regulations known as The Learnership Regulations 2001 published by Government Gazette No. 7043 of 3 April 2001, as amended;", subject to 18.2 learners not being exempt from the provisions of this agreement;

 

"machine operator"

means an employee who is registered as a Tradesman, Class 2, in terms of clause 7(5) of this Agreement;

 

"manufacturing worker"

means an employee who is registered as a Tradesman, Class 4, in terms of clause 7(5) of this Agreement;

 

"Monumental Masonry Industry"

means the Industry in which employers and employees are associated for the purpose of making and erecting gravestones and cemetery memorials of all types.

 

"normal working hours"

means the number of hours that a particular employer has contracted with an employee to be worked on any normal working day, but excluding all overtime hours worked on any day;

 

"normal working day"

means any day that a particular employer has contracted with an employee to be a normal working day including public holidays that fall on a normal working day, but excludes all other days that do not fall on a normal working day, that are to be remunerated at overtime rate of pay;

 

"off-site workshop"

means any premises which is not situated on a site where building construction activities are being carried out and which are registered or are liable for registration as a 'factory' in terms of the provisions of the Occupational Health and Safety Act 85 of 1993 as amended, and on which any activities in connection with the mass-manufacturing of the building industry, using woodworking machines including portable electric and/or pneumatic tools, are being carried out."

 

"paving"

is a surface that is constructed by manual or mechanical means utilising pre‑manufactured segmental, slab, brick, block or cobble units laid to form a hard surfacing. Areas of application shall be deemed to include all sites requiring such surfacing. This includes, but is not limited to,parking areas, pavements, driveways, pool surrounds, patios, roads and forecourts.

 

"period determined by the Council"

means a period prescribed to be not later than the 7th day of each month in respect of every employee employed by the employer during the preceding month;

 

"plant operator"

means a person operating power-driven plant, and for the purposes of this Agreement, a plant operator shall be classified in one of the following categories:

(a) Operators of plant which requires the plant operator to be in possession of a Code C1 licence or above;
(b) operators of plant which requires the plant operator to be in possession of a Code A, A1 or B licence;
(c) "crane drivers" with proven competencies as per the Driven Machinery Regulations Code C41 (tower crane top slewing) or Code C42 (tower crane bottom slewing).

 

"roofer"

means an employee who is an artisan who is responsible for the setting out of a roof from drawings or otherwise, who determines the positions of battens, slates, tiles, sheets and other roofing materials, including shingles, thatch, etc. who may fix flashings, gutters and downpipes to roofs, who is in charge of and supervises the work of others engaged in roof construction.

 

"scaffold"

means any structure of framework used for the support of persons, equipment and material in elevated positions in connection with building or excavation work.

 

"structure"

includes walls, boundary, garden and retaining walls and monuments.

 

"security guard"

means any employee who is engaged in protection or safeguarding property and/or premises in any manner, including but not limited to guarding, patrolling, watching over or security property and/or premises;

 

"skills and education trust"

means the MBAWC Skills and Education Trust, trust deed number IT1029/2001;

 

"temporary employment service"

means any person who, for reward, procures for or provides to a person (hereinafter referred to as the 'client') other persons—

(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment services;

 

"wage"

means the basic wage prescribed in terms of clause 9(1) of this Agreement in respect of the ordinary hours laid down in clause 8(1): Provided that if an employer regularly pays an employee a wage higher that the basic wage in respect of the ordinary hours, it shall mean such higher amount and the employee shall qualify for the equivalent amount of increase in the basic wage for that category of employee;

 

"waterproofing worker"

means an employee who is registered as such with the Council and who, is engaged in one or more of the following activities: Waterproofing and damp proofing of all horizontal, sloping or vertical surfaces (including all types of tanking)with all types of roofing membranes, sheetings and liquid or semi-liquid or mastic coatings; Applying protective paint and/or coating to waterproofing surfaces; All other work in connection with waterproofing and damp proofing.

 

(2) Any person who works for or renders services to any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors are present;
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person's hours work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person is a member of that organisation;
(d) the person has worked for that other person for part of a working day over the last three months.
(e) the person is economically dependent on the other person for whom that person works or renders services;
(f) the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders service to one person.

 

(3) Sub clause (2) does not apply to any person who earns in excess of the amount determined from time to time by the Minister of Labour in terms of section 6(3) of the Basic Conditions of Employment Act, 1997.

 

(4) In this Agreement, unless the context indicates otherwise words importing the singular shall include the plural and vice versa, words importing any gender shall include the other gender and words importing persons shall include partnership and bodies corporate.