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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

9. Maternity Leave or Leave i.r.o the Adoption of a Child under Two Years of Age

 

 

Notwithstanding anything to the contrary contained in this Agreement, the following special provisions shall apply to an employee who is unable to continue working due to pregnancy and adoption of a child under two years of age:

 

(1) For the purposes of this clause:
(a) ‘employee’ means an employee who is unable to continue working owing to pregnancy or the adoption of a child under two years of age and includes employees employed in a manufacturing or production process whose rate of pay is not scheduled in this Agreement but whose activities are directly concerned with the creation of the engineering goods and/or services as covered by the scope of application of this Agreement, but does not apply to the work carried out by administrative staff and/or those employees employed on non-production operations;
(b) ‘permanent employee’ means any employee other than an employee who is specifically employed on a short-term contract, as provided for in terms of this clause, to substitute for an employee who is unable to continue working owing to pregnancy or the adoption of a child under two years of age.
(c) ‘substitute employee’ means any employee other than an employee who is specifically employed on short term contract, as provided for in terms of this clause, to substitute for an employee who is unable to continue working owing to pregnancy or the adoption of a child under two years of age.

 

(2) A permanent employee shall be entitled to the following benefits when such employee is unable to continue employment owing to pregnancy or the adoption of a child under two years of age:

 

Period of unpaid Leave

 

Pregnancy

Stillborn confinement

Adoption of children under two years of age

 

Employees with one year or more continuous service with the same employer.

26 weeks

12 weeks

26 weeks

Employees with less than one year's continuous service with the same employer

18 weeks

8 weeks

18 weeks

 

Note:

A qualifying permanent employee, falling under the scope of the Metal and Engineering Industries Sick Pay Fund Agreement, shall receive a benefit from the Sick Pay Fund equating to 100% of her wages.

 

(3)        

(a) The employer and employee shall enter into a written agreement specifying—
(i) the date of return to work mutually agreed upon between the employer and employee;
(ii) that should the employee wish to return to work earlier than the date referred to in (i), the employee shall give the employer not less than four weeks’ prior notice of  such intention;
(iii) provided the employee is so entitled, the benefits the employee is eligible for, from the Metal and Engineering Industries Sick Pay Fund or in respect of the employee’s participation in any other fund, organization or scheme providing benefits in respect of pregnancy or adoption of a child under two years of age and in respect of which exemption has been granted or is granted, from the provisions of the Metal and Engineering Industries Sick Pay Fund Agreement; and the employer shall provide the employee with such claim forms as may be necessary in respect of the benefits due to the employee and should assist the employee to complete the claim(s) prior to the date of proceeding on maternity leave or leave in respect of the adoption of a child under two years of age in order that such claims may be submitted on proceeding on maternity leave;
(iv) the details of the employee’s occupation and rate of pay at the time of proceeding on maternity leave. A female employee seeking to utilize the adoptive leave provisions shall notify the employer of the institution of the adoption proceedings and shall keep the employer informed of progress in the adoption process, including the anticipated date that the adoption will take effect.

 

(4) Provided the employee returns to work on the date referred to in paragraph (3)(i) or (3)(ii) of this clause, the employer shall place the employee—
(i) in the same or in a similar position to the position held prior to her proceeding on maternity or adoption leave;
(ii) on a rate of wages and conditions of employment not less favourable than the rate of wages and conditions of employment that applied prior to the maternity or adoption leave.

 

(5) On returning to work the employee shall—
(i) be treated as having unbroken service, except that the period of absence shall not be counted as service for the purpose of leave pay and leave enhancement pay calculation in that leave cycle;
(ii) not suffer any prejudice for the purpose of promotion and/or merit increases as a result of the absence;
(iii) be entitled to any increase prescribed for the job grade in any collective agreement which comes into operation during the period of absence;
(iv) not suffer any decrease in status relative to other employees as a result of the period of absence.

 

(6) During the period of maternity or adoption leave provided for in this clause, the employer shall be entitled to employ a substitute temporary employees on a short-term contract of employment as provided for in the Annexure to this clause at rates of pay not less than the rate of pay prescribed in this Agreement for the work undertaken by the substitute temporary employee, or where there is no rate prescribed in this Agreement, at the rate normally paid to an employee employed for work in operative or manufacturing processes.  Short-term contracts for substitute temporary employees shall inform the employee at the time of engagement that the contract shall terminate—

(i)        on the return to work of the employee who is absent;

(ii) on being given not less than three weeks’ written notice that the employee who is absent has given the employer notice of an earlier return to work, as provided for in sub clause (3)(a)(ii) above.

The substitute temporary employee shall signify acceptance of these conditions in writing.  If, at the end of the short-term contract, the substitute temporary employee continues in the employment of the employer, the provisions of this Agreement shall replace the conditions of the short-term contract where applicable.

 

(7) During an employee’s pregnancy an employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if the employee is required to perform night  work (between the hours of 18h00 and 06h00) and it is practical for the employer to do so.

 

(8) For the purposes of any retrenchment or reduction in the workforce that may arise during the absence of any employee, the employee shall be classified and dealt with as an employee in employment.  Should such circumstances arise, all substitute temporary employees shall be retrenched before permanent employees.

 

(9) The provisions of clause 12(5) of this Agreement in respect of leave pay and clause 14(3) in respect of leave enhancement pay shall be applied on proceeding on maternity leave.

 

(10) The provisions of section 25, “Maternity Leave” of the Basic Conditions of Employment Act shall apply, as changed by the context of this clause.

 

ANNEXURE

 

SHORT-TERM CONTRACT OF EMPLOYMENT FOR

SUBSTITUTE TEMPORARY EMPLOYEES

 

In terms of clause 9 of the Main Agreement

 

CONTRACT OF EMPLOYMENT

 

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

(i) The duration of this Contract of Employment shall be for a maximum period of six months from ………………………………..  to …………………………….. or shall  terminate upon re-employment of (the permanent employee) in terms of clause (ii) below.
(ii) The Contract of Employment shall terminate on the agreed date of return of ……………………………….(the permanent employee) or three weeks after the substitute temporary employee has been given written notice that the permanent employee has given the employer notice of an earlier return to work, as the case may be, as provided for in clause 3(a)(ii) of the Main Agreement.
(iii) For the purpose of any retrenchment or reduction in the workforce that may arise during the absence of the permanent employee, all substitute temporary employees shall be retrenched before permanent employees.
(vi) On completion of the contract period as detailed in (i) or (ii) above, this contract shall automatically terminate.  Such termination shall not be construed as being retrenchment but shall be completion of contract.
(v) The remaining conditions of employment, not expressly detailed above, shall be the 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.
(vi) Where employment continues after the return of the permanent employee (…………………), this contract shall automatically terminate and the provisions of the Main Agreement shall apply.

 

The substitute temporary employee hereby acknowledges that he understands and accepts the contents of this contract.

 

Signed at…………………....................................…on……………………...........................19………………

 

Employer...........................………………………………..............................

 

Employee.........................................................………………………………

 

Witness  ……………………………………………………………………………………………