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

Notices

Bargaining Council for the Metal and Engineering Industries

Main Collective Agreement

Part 1 : Conditions of Employment

20. Outwork, Temporary Employment Services and Limited Duration Contracts

 

 

Notwithstanding anything to the contrary contained in this agreement, the following special provisions shall apply:

Employers must endeavour to minimize the use of temporary employment services in the Industry;
Employers must endeavour to enter into permanent employment relationships

[Inserted by Government Notice R. 268 dated 12 April 2013]

 

(1)        Subject to the provisions of clause 198 of the Act—

(a) no employer shall require or allow an employee to undertake any class of work covered by this Agreement elsewhere than in his establishment, except where such work is in execution or completion of any order placed with that employer, and no employer shall require or allow any employee of any other employer to undertake on his behalf any class of work covered by this Agreement, except where such work is in execution or completion of an order placed by that employer with the other employer; and
(b) no employee shall solicit or take orders for or undertake any class of work covered by this Agreement for sale and/or for gain either on his own account or on behalf of any other person or firm whilst he is in the employ of any employer engaged in the Industry.

 

(2) Every employer undertaking to execute or complete any work in any region other than the region in which his establishment is registered with the Council shall notify the nature and place of work in writing to the Regional Council for the area in which the work is done within seven days of the commencement of such work and shall maintain at such place of work a register of the hours worked by all employees and their remuneration in respect thereof.

 

(3) No employer shall utilize the services of workers within the meaning of section 198 of the Act unless the temporary employment service provides proof of the employer of—
(a) the company’s CIPC (companies Intellectual Property Commission) registration document and details;
(b) the registration number issued by the MEIBC in respect of the temporary employment services in pursuance of the Council’s Registration and Administration Expenses Agreement (MIBFA number);
(c) An Accredited certificate issued by the MEIBC certifying that the TES has undergone a verification audit and has met all the accreditation criteria as developed by the MEIBC, permitting the TES to operate as a Temporary Employment Service Provider in the Industry.
(d) An affidavit warranting compliance with regard to Legislation and Collective Agreements and that Correct rates are being paid to placed staff, and correct deductions are being made according to the MEIBC collective agreements and including all benefits;
(e) Physical business address of the TES;
(f) A list of the TES’s clients which will remain confidential between the member and the MEIBC;
(g) Copies of current exemptions to the Main Agreement, if applicable;
(h) Client service and employee employment contracts to be available for inspection;
(i) Letter of good standing from the Compensation Commissioner;
(j) Letter of good standing from the Unemployment insurance Fund;
(k) Tax clearance certificate from SARS;
(l) Proof of submission of Employment Equity reports if applicable;
(m) BEE certificate;
(n) The registration number allocated by the Director-General of Labour and/or a certificate of registration in respect of section 24 of the Skills Development Act;
(o) Confirmation from the Metal Industries Benefit Fund Administrators that the TES is up to date with al fund contributions and levy payments;
(p) Any other matter agreed.

[Amended by Government Notice R. 268 dated 12 April 2013]

 

(4) An employer who procures a worker or workers within the meaning of section 198 of the Act from a temporary employment service shall notify the region as defined in clause 3 of this Agreement in writing of the business name and physical business address of the temporary employment service concerned within seven days from the date on which the services of the worker or workers procured are utilised within that region or, if the services of such workers are already being utilised at the date of coming into operation of this subclause, within seven days of the date of coming into operation of this subclause.

 

(5) An employer who procures a worker or workers within the meaning of clause 198 of the Act from a temporary employment service shall complete a form in the format determined by the Council in respect of each such worker and such form shall be signed by both the employer and the worker concerned declaring that the particulars therein are correct.

 

(6) The form referred to in subclause (5) above shall contain the following particulars:
(a) The name, telephone number, residential address and identity number of the worker;
(b) the business name, business telephone number and physical business address of the temporary employment service concerned;
(c) the date from which the employer utilises the services of the worker and the expected termination date;
(d) the site or workshop address where the services of the worker will be utilised;
(e) the anticipated normal hours and overtime to be worked by the worker;
(f) whether the worker will be engaged on work scheduled in this Agreement as Rate A work;
(g) the scheduled occupation in terms of this Agreement applicable to the worker.

 

(7) The employer shall submit the form referred to in subclause (5) above to the region as defined in clause 3 of this Agreement within seven days after he has commenced utilising the services of the workers concerned.

 

(8) The temporary employment service and the client shall be jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes—
(a) a collective agreement, concluded in a Bargaining Council that regulates terms and conditions of employment;
(b) a binding arbitration award that regulates terms and conditions of employment;
(c) the Basic conditions of Employment Act, or
(d) a determination made in terms of the Wage Act.

Any employer who utilises the services of a temporary employment service should, in view of the possible financial risk involved, ensure that the temporary employment service is complying with the Collective Agreement of the Council.

 

(9) A worker supplied by a temporary employment service to an employer in the industry and who performs work scheduled in this Agreement shall be regarded as an employee for purposes of this Agreement.

 

(10) Where the employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms or did not renew it, such employee shall be regarded as having been dismissed.  In such cases the date of dismissal shall be the date on which the employer offered the less favourable terms or the date on which the employer notified the employee of the intention not to renew the contract.

 

(11) The following special provisions shall apply in respect of the use of workers supplied by Temporary Employment Service providers.
(a) Temporary Employment Service providers (TES) who comply with the following may be permitted to operate in the Industry;
Who have met the requirements set out in subclause (3) above;
Who have undergone a verification audit conducted by the MEIBC.
(b) The current provisions set out in Annexure A(3) of the Main Agreement dealing with Limited Duration Contracts of Employment obligating the TES to utilize the same terms and conditions of employment that would be applicable to a company – when engaging an employee on a fixed term or limited duration contract of employment for a company; namely:
Site work

Employment in terms of a contract which specifies that employment is in respect of a specific construction site for the duration of the site contract or a specific portion or section thereof.

Turnaround work:

Employment in terms of a contract of employment which specifies that employment is for the duration, or portion thereof, of

A contract secured by the employer to carry out specified installation, maintenance, overhaul or development work on existing equipment or on an installation not owned by the employer, or
Major maintenance, overhaul or development work on  equipment or an installation owned by the employer necessitating the recruitment of employees over and above the normal complement.
Ship repair work:

Employment in terms of a contract of employment that specifies that employment is for the duration or portion thereof of a specific contract secured by the employer to carry out repairs on a particular vessel.

Short-term fluctuations in workload:
Employment in terms of a contact of employment which arises out of a situation where the employer is necessitated to take on additional employees through a temporary employment service provider, as a result of having secured additional work of a short term nature. This employment will be limited in duration to a period not exceeding four months.  Provided that if a longer period is required to complete a specific task or activity, then the period of the specific task or activity shall be specified in the limited duration contract of employment.
(c) All employees including those employed on a limited duration contract will have access at plant level to social facilities including canteens, toilet and ablution facilities.
(d) No employer shall require the procurement of employees from a Temporary Employment Service for any period beyond that which is envisaged in the Limited Duration Contract of Employment.
(e) Where a worker works for a period beyond the terms of the contract such worker shall become permanent.
(f) All workers procured through Temporary Employment Service will enjoy all  existing terms and conditions of employment outlined in the Collective Main Agreement.  Workshop and/or factory based employees may not be granted a package rate exemption, which takes into account all benefits payable to employees as an hourly rate of pay, other than overtime and Sunday time.
(g) Procured workers may not elect the option of choice in becoming members of the retirement schemes offered to employees in the Metal and Engineering Industries.
(h) To better monitor the prevalence of employees procured by Temporary Employment Service, a separate monthly return to the Metal Industries Fund        Administrators must be endorsed by a client in the industry whose workers have been procured through a temporary employment service to confirm the period for which employees are procured and the number thereof in each instance of procurement.
(i) Where an employer intends to use Temporary Employment Service workers in scheduled occupations in the direct production process on a permanent basis, then clause 37 should not be construed to limit the parties’ right to take industrial action in accordance with the provisions of the Labour Relations Act.
(j) All Temporary Employment shall make use of the model Limited Duration Contract below:

 

MODEL CONTRACT FOR USE BY TEMPORARY EMPLOYMENT SERVICES

LIMITED DURATION CONTRACT OF EMPLOYMENMT

Schedule referred to in clause 3(a) of Annexure A to the Main Agreement

CONTRACT OF EMPLOYMENT

 

(The employer) ………………………………………………………. agrees to engage the services of (the employee) and the employee hereby agrees to accept service with the employer on the following terms and conditions:

(i)

(a) The contract of employment in terms of clause 3 of Annexure A to the Main Agreement shall be for a maximum period of …………………………………… months / weeks from date of employment, for the purpose of site work / turn-around work / ship repair work (delete whichever is not applicable) from …………………… to ………………… or completion of the specific work detailed hereunder:

………………………………………………………………………………………………………………………………………………………………………………………………………………………….

(b) The contract of employment for short-term fluctuations in workload shall not exceed a period of four months from date of employment, viz from ……………………… to …………………………. Or completion of the specific work detailed hereunder:

(Note:        Should a period longer than four months be required to complete a specific task or activity, the period and the specific task or activity must be specified hereunder):

………………………………………………………………………………………………………………………………………………………………………………

(ii) On completion of the contract detailed in (i) above, this contract shall automatically terminate.  Such termination shall not be construed as being retrenchment but as completion of contract.
(iii) The remaining conditions of employment, not expressly detailed above, shall be existing employer policy, rules and regulations and the general conditions of employment as contained in the Main Agreement for the Iron, Steel, Engineering and Metallurgical Industry, subject to the limitation set out in (ii) above.
(iv) Where employment continues after completion of this contract in terms of (i) above this contract shall become null and void and the provisions of the Main Agreement shall apply.
(v) Subject to the amendment of the general conditions of employment as set out in (ii) above, the engagement conditions shall be:
(a) Occupation ……………………………………………………………………………………….
(b) Rate of pay ……………………………………………………………………………………….

(which shall not be less than the rate scheduled in the Main Agreement)

 

The employee acknowledges that he/she understands the contents of this contract and signifies acceptance thereof.

 

Signed at........……………………………………………….. on ……………………………...….2011.

 

Employer:………………………………………………………………………………………

 

Employee:………………………………………………………………………………………

 

Witness:…………………………………………………………………………………………

 

Note: The employer and employee shall, during the period of employment in terms of this contract, observe the provisions of the applicable Benefit Fund Agreements.

[Amended by Government Notice R. 268 dated 12 April 2013]

 

(12) Employers who have been granted a “flat-rate” exemption in terms of which all employee entitlements are incorporated into a single, comprehensive hourly wage may only apply this to employees engaged on work construction sites. It may not be used in manufacturing establishments.

 

(13) This Agreement shall apply to all Labour Brokers in the Industry and employees of Labour Brokers will enjoy the wage structures and all the benefits of the Bargaining Council Agreements.”