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Click to edit Master title
style IS THIS THE END OF TES
AS WE KNOW IT?
Zinn & Botha Consulting
what defines you?
Amendments & Timing
Pre-requisites in the A-typical Space
Interpreting FTC & TES provisions
Big-Ticket Items (including Equal pay)
BBBEE vs Labour Law
www.zbconsulting.za.com
Time to Face up to the ….
201
1
2
201
2014
2013
2015
LARGEST
regulatory changes in
the past 40
years
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Broad-mindedness
Business Complexity
Brussels (24 February, 2014). In 2013, the private employment services (PrES) industry showed its strongest results since the
beginning of the recession in 2008. The USA, Japan and Europe, together worth 82% of the worldwide PrES industry market, all
reported a return to growth: In November 2013 the US Staffing Employment Index reached 102, its highest position in six years
and a notable growth of 6.9% y-o-y.
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Zinn & Botha Consulting
what defines you?
Labour Relations Act amendments
www.zbconsulting.za.com
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Three ways of securing
human capital
Business strategy
SBO’s human capital needs
Independent
contracting/sub
contracting

Temporary employment
services
Direct employment
o FTC
o Part-time
o Permanent
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
Fixed-term contracts
Many shades of grey
A ‘fixed term contract’ means a
contract of employment that
terminates on
–
the occurrence of a specified
event
–
the completion of a specified
task or project; or
–
a fixed date, other than an
employee’s normal or agreed
retirement age
–
Employment in terms of a
fixed term contract in
contravention of the above is
deemed to be of indefinite
duration

A ‘Dismissal’ means
o (b) an employee engaged
under a fixed-term contract
of employment reasonably
expected the employer
–
to retain the employee on
an indefinite contract of
employment but otherwise
on the same or similar
terms as the fixed term
contract, but the employer
offered to retain the
employee
on
less
favourable terms, or did
not offer to retain the
employee
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That deeming provision
What does it really mean when it says the CLIENT is the deemed
employer?

(4A) If the client of a temporary employment service is jointly and severally
liable in terms of section 198 (4) or is deemed to be the employer of an
employee in terms of section 198A (3)(b)
o
the employee may institute proceedings against either the temporary
employment service or the client or both the temporary employment service
and the client
o
a labour inspector acting in terms of the Basic Conditions of Employment Act
may secure and enforce compliance against the temporary employment service
or the client, as if it were the employer, or both; and
o
any order or award made against a temporary employment service or client in
terms of this subsection may be enforced against either
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Fixed-term contract
structure
R E M U N E R A T I O N
Applies irrespective of direct FTC or via a TES

Joint and several liability for breaches of BC/SD/BCEA
R205K per annum


Joint and several liability for
breaches of BC/SD/BCEA


Joint and several liability for
LRA (if TES is involved)
Equal treatment
Organisational rights
3
months
D U R A T I O N O F
C O N T R A C T

SERVICE LEVEL AGREEMENT
o
o
o
indemnifications
insurances
SOP’s
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Statutory Provision
Financial Impact
Commercial/ SLA
Impact
Transformational/
BBBEE Impact
Operational Impact
EE Act (ss20, 21,42)
 EE Plan
 EE Report
2% of annual turnover or
R1.5m whichever is greater
SOP & MI requirements
Planned integration of
assignees based on race,
gender, disability
Fully integrated committee,
analysis, plan & report,
monitoring & evaluation,
expertise
% of payroll underpaid without
justfication (TCT)
Fully aligned, agreed &
implemented strategy
NA
MI, monitoring & evaluation,
expertise
Clearly defined SOP re who chairs
& complains as well as dispute
procedures and MI/ case
management
NA
MI, monitoring, evaluation,
expertise
LRA/EE Act (s6(4))
 Equal pay for work of
equal value
Re-instatement with client or
LRA (s186)
Zinn & Botha Consulting
up to 12 months compensation
 Unfair Dismissal
what defines you?
on Joint & Several basis
(indefinite &
reasonable
expectation)
LRA (s186)
 Unfair Labour
Practice (promotion,
training, benefits)
Order as to damages &
remedies on Joint & Several
Basis
Clearly defined SOP on how to
access vacancies & development
opportunities
NA
MI, monitoring, evaluation,
expertise
LRA (s198)
 FTC/TES/Part-timers
 3 month threshold &
-R205K)

Equal pay % of payroll
underpaid without
justification
Unfair dismissals/ULP’s
Fully aligned, agreed &
implemented strategy
NA
MI, monitoring, evaluation,
expertise
BBBEE
 Skills Development &
EE
 Preferential
Procurement

Saving of around 10% of
NPAT on using TES
Gain of points under PP
Contract around BBBEE
credentials & status
HUGE!
MI, monitoring, evaluation,
expertise


www.zbconsulting.za.com
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Zinn & Botha Consulting
what defines you?
Equal treatment
www.zbconsulting.za.com
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
Under the Labour Relations
Act
JUSTIFIABLE REASON for different treatment... includes the fact that the
different treatment is as a result of the application of a system that takes into
account
o
the employee’s seniority, experience or length of service
o
merit criteria
o
the quality or quantity of work performed
o
any other relevant criteria of a similar nature
–
(that is not prohibited in terms of section 6 of the Employment Equity Act)
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Determining Equal Pay risk
exposure - first things first!
 Fields & data (data sheet)
o Client perm
o Client part-time
o Client FTC
o TES
A
B
A – Earning more than R205K/pa
B – Contracted for less than 3 months
C – Normal absenteeism replacement
F
D – Trainee/intern/learnership/
apprenticeship
E – Short-term project
F – Justifiable reason
(LOS/experience/performance/
merit/other)
CRUCIAL…
Design & Develop a
revised DISPENSATION
STAFFING SOLUTION
going forwards
Options
Clean up “Gene Pool”
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Zinn & Botha Consulting
what defines you?
BBBEE AMENDED CODES
www.zbconsulting.za.com
BBBEE DYNAMICS “UNDER
PRESSURE”
Element
Previous Weighting
New Weighting
Ownership
20 points
25 points
Management Control
(Employment Equity)
10 points
15 points
Consolidated with Employment
Equity
15 points
Skills Development
15 points
20 points
Enterprise & Supplier
Development
(Preferential Procurement
Enterprise Development)
20 points
40 points
Socio-Economic Development
15 points
5 points
Threats:
-
Recalibration of BBBEE Verification Score Level Requirements
Priority Element Minimums
EAP targets for Management Control/EE and Skills Development
Definition of “Empowering Supplier”
5 points
HIER KOM GROOT MOEILIKHEID!
Its not what happens to you, but how you respond!!
CONTRIBUTION
LEVEL
PREVIOUS CALIBRATION
NEW CALIBRATION
BEE
RECOGNITION
LEVEL
Level One
Contributor
≥ 100 points on the Generic
Scorecard
≥ 100 points on the Generic
Scorecard
135%
Level Two
Contributor
≥ 85 but < 100 points on the
Generic Scorecard
≥ 95 but < 100 points on the
Generic Scorecard
125%
Level Three
Contributor
≥ 75 but < 85 on the Generic
Scorecard
≥ 90 but < 95 on the Generic
Scorecard
110%
Level Four
Contributor
≥ 65 but < 75 on the Generic
Scorecard
≥ 80 but < 90 on the Generic
Scorecard
100%
Level Five
Contributor
≥ 55 but < 65 on the Generic
Scorecard
≥ 75 but < 80 on the Generic
Scorecard
80%
Level Six
Contributor
≥ 45 but < 55 on the Generic
Scorecard
≥ 70 but < 75 on the Generic
Scorecard
60%
Level Seven
Contributor
≥ 40 but < 45 on the Generic
Scorecard
≥ 55 but < 70 on the Generic
Scorecard
50%
Level Eight
Contributor
≥ 30 but < 40 on the Generic
Scorecard
≥ 40 but < 55 on the Generic
Scorecard (all things equal)
10%
Non
Compliant
Contributor
< 30 on the Generic Scorecard
< 40 on the Generic Scorecard
(probable end point in absence of
clear strategy)
0%
National Sub-race & Gender now applies to
Management Control/EE and Skills Development
Table 1: Profile of the national EAP by race and gender
Male
Female
Total
AM African male 40.7%
CM Coloured male 5.8%
IM Indian male 1.9%
WM White male 6.4%
TOTAL 54.8%
AF African female 34.2%
CF Coloured female 5.0%
IF Indian female 1.1%
WF White female 4.9%
TOTAL 45.2%
74.9%
10.8%
3%
11.3%
Source: Statistics South Africa, (QLFS 3 2012) (all percentages are rounded to one
decimal point)
Your Client(s)
Finding Relevance
Preferential
Procurement 25
Your Business
General PP from all = 5
QSE PP = 3
EME PP = 4
51 Black Owned = 9
30% Black Female = 4
Workforce Plan
Strategic Imperatives
EE Act
Fines for not making
reasonable progress
starting at 2% of annual
turnover
Employment
Tax Incentive
Youth Employment Tax
Rebate R1000pm (24
months)
6% payroll
4% NPAT
BBBEE
Ownership 25
Management Control 15
Skills Development 20/25
Preferential Procurement 25
Supplier Development 10
Enterprise Development 5
Socio-economic Development 5
LR Act
Equal Pay/ Treatment
Dismissal Rights
FTC regulations
TES provisions
SETA’s/ SARS
Mandatory Grants
Discretionary Grants
Learnership tax Rebates
R100K & R60K
Strategic Partner Characteristics
beyond)
Strong Balance Sheet
Systems
Thought leadership
Capacity to Deliver
Trust & “in it for the long
haul”
Business Sense
(2014 &
• Back up SLA Indemifications & Insurances
• Management Information
• Innovation & differentiation
• Global Best-practice, Locally
• Values, Culture & Track Record
• Immerse into Client Business Drivers