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Labour Legislation Index

Employment Services Act No. 4 of 2014

Act No. 4 of 2014: Employment Services Act, 2014 

Vol. 586     Cape Town               7 April 2014              No. 37539

No. 269                                                                                   7 April 2014

It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–

(English text signed by the President) (Assented to 3 April 2014)

 ACT

To provide for public employment services; to provide for the establishment of schemes to promote the employment of young work seekers and other vulnerable persons; to provide for schemes to assist employees in distressed companies to retain employment; to facilitate the employment of foreign nationals in a manner that is consistent with the objects of this Act and the Immigration Act, 2002; to provide for the registration and regulation of private employment agencies; to provide for the establishment of the Employment Services Board; to provide for the establishment of Productivity South Africa; to provide for the establishment of Supported Employment Enterprises; to provide for transitional provisions; and to provide for matters connected therewith.

BE  IT  ENACTED  by  the  Parliament  of  the  Republic  of  South  Africa,  as follows:—

CHAPTER 1

INTERPRETATION, PURPOSES AND ADMINISTRATION

Definitions 

1. In this Act, unless the context otherwise indicates—

‘Basic  Conditions  of  Employment  Act’’  means  the  Basic  Conditions  of

Employment Act, 1997 (Act No. 75 of 1997);

‘Board’’ means the Employment Services Board established in terms of section 20;  

‘Department’’ means the Department of Labour;

‘Director-General’’ means the Director-General of the Department;

‘employee’’ bears  the  same  meaning  as  defined  in  section  1  of  the  Basic Conditions of Employment Act;

‘employment services’’ includes the provision of the following services: 

(a)   Advising or counselling of workers on career choices, either by the provision of information or other approaches;

(b)   assessment of work seekers for—

(i)   entry or re-entry into the labour market; or

(ii)   education and training;    

(c)   referring work seekers—

(i)   to employers to apply for vacancies; or

(ii)   to training providers for education and training;

(d)   assisting employers—

(i)   by providing recruitment and placement services;  

(ii)   by advising employers on the availability of work seekers with skills that match their needs;

(e)   performing the functions of temporary employment services; and

(f)    any other prescribed employment service;

‘foreign national’’ means an individual who is not a South African citizen or does not have a permanent residence permit issued in terms of the Immigration Act;

‘Immigration Act’’ means the Immigration Act, 2002 (Act No. 13 of 2002);

‘Labour Relations Act’’ means the Labour Relations Act, 1995 (Act No. 66 of 1995);

‘Minister’’ means the Minister of Labour;

‘NEDLAC’’ means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);

‘persons  with  disabilities’’ includes  persons  who  have  long-term  physical,   10 mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others;

‘prescribe’’ means prescribed by the Minister by regulation, and ‘‘prescribed’’ has a corresponding meaning;  

‘private employment agency’’ means any person who provides employment services for gain;

‘public employment services’’ means the public employment services contem- plated in section 5;

‘Public Finance Management Act’’ means the Public Finance Management Act,  1999 (Act No. 1 of 1999);

‘registrar’’ means the official designated as a registrar in terms of section 13;

‘Skills Development Act’’ means the Skills Development Act, 1998 (Act No. 97 of 1998);

‘Supported Employment Enterprises’’ means the national government compo-   25 nent established in terms of section 42;

‘temporary employment services’’ bears the same meaning as defined in section 198 of the Labour Relations Act;

‘this Act’’ includes regulations;

‘Unemployment Insurance Act’’ means the Unemployment Insurance Act, 2001   30 (Act No. 63 of 2001);

‘work opportunity’’ means a vacancy or opportunity for employment or work experience, self-employment or community service;

‘work scheme’’ means any programme aimed at assisting people to find or remain in employment or to set themselves up in self-employment; and  

‘work seeker’’ means any person who is looking for work.

Purpose of Act

2. (1) The purpose of this Act is to—

(a)   promote employment;

(b)   improve access to the labour market for work seekers;      

(c)   provide opportunities for new entrants to the labour market to gain work experience;

(d)   improve the employment prospects of work seekers, in particular vulnerable work seekers;

(e)   improve the employment and re-employment prospects of employees facing   45 retrenchments;

(f)     facilitate access to education and training for work seekers, in particular vulnerable work seekers;

(g)   promote employment, growth and workplace productivity; and

(h)   facilitate the employment of foreign nationals in the South African economy,   50 where their contribution is needed in a manner—

(i)   that gives effect to the right to fair labour practices contemplated in section 23 of the Constitution;

(ii)   that does not impact adversely on existing labour standards or the rights and expectations of South African workers; and                                       
(iii)   that promotes the training of South African citizens and permanent residents.

(2) The purpose is to be achieved by—

(a)   providing comprehensive and integrated free public employment services;

(b)   coordinating the activities of public sector agencies whose activities impact on the provision of employment services;

(c)   encouraging partnerships, including in the provision of employment services,     5 to promote employment;

(d)   establishing schemes and other measures to promote employment; and

(e)   providing a regulatory framework for the operation of private employment agencies.

 

Interpretation                                                                                                                     10

 

3. Any person applying this Act must interpret its provisions to give effect to—

(a)   its purpose;

(b)   the Constitution; and

(c)   South Africa’s obligations in  terms  of  any  relevant international labour standards and treaties.                                                                                          15

 

Administration of Act

4. Subject to the laws governing the public service, the Director-General must ensure that the Department—

(a)   including its provincial offices and labour centres, has suitable personnel and financial resources necessary for performing its functions in terms of this Act;   20 and

(b)   maintains labour centres at which members of the public are able to access the public employment services provided for in terms of this Act.

CHAPTER 2

 

PUBLIC EMPLOYMENT SERVICES                                       25

Public employment services

5. (1) The Department must provide the following public employment services free of charge to members of the public in a manner that is open and accessible:

(a)   Matching work seekers with available work opportunities;

(b)   registering work seekers;                                                                                     30

(c)   registering job vacancies and other work opportunities;

(d)   facilitating the placing of work seekers with employers or in other work opportunities;

(e)   advising work seekers on access to education and training;

(f)    advising workers on access to social security benefits;                                      35

(g)   providing specialised services to assist vulnerable work seekers;

(h)   facilitating the exchange of information among labour market participants, including employers, workers and work seekers, private employment agencies, Sector Education and Training Authorities and training providers;

(i)     facilitating the employment of foreign nationals in a manner that is consistent   40 with the object of this Act and the Immigration Act; and

(j)     generally, performing any other function in terms of employment law or prescribed in terms of this Act.

(2) The Department may also provide the following services to facilitate the matching of work seekers to work opportunities:                                                                               45

(a)   Vocational and career counselling;

(b)   assessment of work seekers to determine suitability; and

(c)   any other related life skills to secure employment or other forms of work.

Promotion of employment of youth and other vulnerable work seekers

6. (1) The Minister may, after consulting the Board, establish work schemes for the purpose of enabling youth and other vulnerable work seekers to enter employment, remain in employment or be placed in opportunities for self-employment.

(2) The employment of any person in terms of a scheme contemplated in subsection     5 (1) is subject to any minimum terms and conditions established in accordance with the Basic Conditions of Employment Act or any applicable collective agreement.

(3) The Minister may prescribe—

(a)   measures that may be provided for in terms of a scheme contemplated in subsection (1); and                                                                                               10

(b)   the period for which a youth or any other vulnerable work seeker may be employed in terms of such scheme and may determine the remuneration of employees or other payments for the purposes of subsection (1).

Job retention

7. (1) The Minister may, after consulting the Board, establish schemes to minimise the   15 retrenchment of employees.

(2) Without limiting subsection (1), a scheme may provide for turn-around strategies, lay-offs, re-training or alternative employment opportunities.

(3)  For  the  purposes  of  this  section,  ‘‘economic  distress’’ means  financial  or operational difficulties which may result in an employer contemplating the dismissal of   20 employees based on its operational requirements.

Employment of foreign nationals

8. (1) An employer may not employ a foreign national within the territory of the Republic of South Africa prior to such foreign national producing an applicable and valid work permit, issued in terms of the Immigration Act.                                               25

(2) The Minister may, after consulting the Board, make regulations to facilitate the employment of foreign nationals, which regulations may include the following measures:

(a)   The employers must satisfy themselves that there are no other persons in the Republic with suitable skills to fill a vacancy, before recruiting a foreign   30 national;

(b)   the employers may make use of public employment services or private employment agencies to assist the employers to recruit a suitable employee who is a South African citizen or permanent resident; and

(c)   preparation of a skills transfer plan by employers in respect of any position in   35 which a foreign national is employed.

(3) A regulation made in terms of this section may—

(a)   include any other requirement necessary to implement the provisions of this section which are consistent with the Immigration Act; and

(b)   differentiate between different categories of visas issued in terms of the   Immigration Act and different categories of work.

(4) An employee who is employed without a valid work permit is entitled to enforce any claim that the employee may have in terms of any statute or employment relationship against his or her employer or any person who is liable in terms of the law.

Prohibited acts in respect of foreign nationals                                                               45

9. An employer may not require or permit a foreign national—

(a)   to perform any work which such foreign national is not authorised to perform in terms of his or her work permit; or

(b)   to engage in work contrary to the terms of their work permit.

Reporting on vacancies and filling of positions

10. (1) The Minister may, after consulting the Board, make regulations requiring employers to notify the Department of—

(a)   any vacancy or new position in their establishment in a manner and within

such period as the Minister may determine;                                                         5

(b)   the employment of any work seeker referred by a labour centre; and

(c)   any matter necessary to promote the provision of efficient matching services. (2) A regulation made in terms of subsection (1) may differentiate between different categories of work and different categories of employers.

 Employment information  

11. The Department may develop and operate an employment information system for monitoring, evaluating, researching and analysing trends, which may include, but are not limited to, the following information:

(a)   The names, qualifications and previous occupations of work seekers;

(b)   vacancies in the labour market;                                                                          

(c)   training opportunities that are available;

(d)   specialised skills and qualifications possessed by work seekers registered on the public employment services system; or

(e)   details of the employer.

Financing of public employment services                                                                       

 

12. (1) The provision of public employment services in terms of this Act must be financed from the money defrayed from the budget vote of the Department for this purpose and may, in addition, be financed from—

(a)   money allocated from the Unemployment Insurance Fund in accordance with

the provisions of the Unemployment Insurance Act;                                         

(b)   money  allocated  from  the  Compensation  Fund  in  accordance  with  the provisions of the Compensation For Occupational Injuries and Diseases Act,

1993 (Act No. 130 of 1993);

(c)   money generated from the registration of private employment agencies, with

the concurrence of the Minister of Finance; and                                                

(d)   grants and donations made for this purpose to the Department.

(2) The monies received by the Department for public employment services may only be used in the prescribed manner and to fund—

(a)   the administration and performance of its functions in terms of this Act;

(b)   schemes for retrenched workers, work seekers, in particular vulnerable work   seekers;

(c)   rehabilitation and promotion of re-entry into employment for people who are disabled as a result of being injured on duty or contracting an occupational disease;

(d)   subsidies to organisations providing work opportunities for vulnerable work   seekers;

(e)   private employment agencies for specific or specialised projects in respect of vulnerable workers; or

(f)     any other project, that the Minister may decide upon, that promotes the provision of public employment services or that is consistent with the objects  of this Act.

CHAPTER 3

PRIVATE EMPLOYMENT AGENCIES Registration of private employment agencies

13. (1) The Minister may, after consulting the Board, prescribe criteria for the registration of private employment agencies.

(2)  The  criteria  for  registering private  employment agencies  must  differentiate between private employment agencies—

(a)   that are registered as temporary employment services; or

(b)   that only seek to perform other employment services as contemplated in this Act.                                    

(3) The Minister must designate an official of the Department as the registrar of

private employment agencies.

(4) Any person wishing to provide employment services must apply to the registrar in the prescribed form and manner in order to register as a private employment agency.

(5) The registrar must, within 60 days of the application, issue a private employment  10 agency with—

(a)   a certificate of registration, if the application is successful or a temporary certificate of registration as prescribed; or

(b)   a letter containing reasons, notifying the private employment agency that it

has  not  been granted registration, in  accordance with the  Promotion of   15

Administrative Justice Act, 2000 (Act No. 3 of 2000).

(6) The registration certificate of a private employment agency must specify whether or not the private employment agency is permitted to perform the functions of a temporary employment service.

(7) The registrar must maintain in electronic form a register of private employment  20 agencies that  have  been  registered in  terms of  this Act  and  must  make suitable arrangements for the public to access the register.

(8) The private employment agency must display its certificate of registration in a conspicuous place at the premises from where it operates.

(9) A person may not operate a private employment agency except in accordance with   25 the provisions of this Act and the terms of its registration.

Prohibited acts in respect of private employment agencies

14. A private employment agency may not—

(a)   provide false employment services information;

(b)   provide any employment service that it is not authorised to perform in terms   30 of its certificate of registration;

(c)   counterfeit, alter or transfer its registration certificate; or

(d)   retain the original identity documents or original qualification certificates of work seekers.

Charging of fees by private employment agencies                                                         35

15. (1) No person may charge a fee to any work seeker for providing employment services to that work seeker.

(2) Despite subsection (1), the Minister may, after consulting the Board, by notice in the Gazette permit private employment agencies to charge fees in terms of a specified

fee to specified categories of employees or for the provision of specialised services.       40 (3) A notice in terms of subsection (2) may specify categories of employees by

reference to the work performed or to the earnings of such employees.

(4) A private employment agency must not deduct any amount from the remuneration of an employee or require or permit an employee to pay any amount in respect of the placing of that employee with an employer.                                                                       45

(5) Any agreement between a private employment agency and a client in terms of which employees perform work for the client, must specify separately the remuneration that  employees will  receive  and  the  fee  that  the  client  is  paying  to  the  private employment agency.

(6) A provision in any agreement concluded with an employee that is in breach of this   50 section is invalid and of no force and effect.

(7) The Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act or a bargaining council having jurisdiction may conciliate and arbitrate any dispute concerning the application of this section.

Retention of information by private employment agencies

16. (1) A private employment agency must keep an electronic or manual register reflecting—

(a)   the work seekers registered with them;

(b)   work seekers that have been placed in employment; and                                     5

(c)   particulars of the employer where the work seeker was placed.

(2) The records contemplated in subsection (1) must be retained for a minimum period of three years.

Confidentiality of information collected

17.  (1)  The  processing  of  personal  information of  work  seekers  by  a  private   10 employment agency must—

(a)   be done in a manner that protects the information and ensures respect for the privacy of the work seeker; and

(b)   be limited to matters related to the qualifications and professional experience of the work seeker concerned or any other relevant information.                      

(2) A private employment agency—

(a)   may provide information to a prospective employer concerning a work seeker, in accordance with subsection (1);

(b)   must, if requested by the Department, provide the necessary information to the Department, provided that this does not infringe any right of the individual   20 concerned,  any  proprietary  right  or  law  regulating  the  disclosure  of information; and

(c)   may provide information to any other organ of state only if it is required to do so in terms of any other legislation or for the purposes of the administration of justice.                                                       25

 

Cancellation of registration of private employment agency

 

18. (1) The registrar may cancel the registration of a private employment agency for failure to comply with the requirements of this Act or any regulations made in terms of this Act or any prescribed procedures.

(2) The registrar must, before withdrawing the registration of a private employment  30 agency—

(a)   notify the private employment agency in writing of his or her intention to cancel its registration and of the reasons for so doing;

(b)   give the private employment agency 30 days, calculated from the date the notice  is  given  in  terms  of  paragraph  (a),  an  opportunity  to  make   35 representations on why its registration should not be cancelled;

(c)   consider any representations received; and

(d)   notify the agency of the decision.

(3) If the registration is withdrawn, the registrar must remove the name of such private employment agency from the register of private employment agencies.                           40

 

Review of decision of registrar

 

19. (1) Any person aggrieved by the decision of the registrar not to grant or to cancel registration, may apply for a review in the Labour Court against that decision within 30 days of the date of the decision of the registrar.

(2) The Labour Court may, on good cause shown, extend the period within which a   45 person may lodge the application for review.

 

CHAPTER 4

 

EMPLOYMENT SERVICES BOARD Establishment of Employment Services Board

20. The Employment Services Board is hereby established.                                          50


 

16

 

Composition of Board

 

21. (1) The Board consists of the following suitable persons appointed by the

Minister:

(a)   An independent chairperson, who is a non-voting member of the Board;

(b)   three persons appointed ex offıcio to represent the interests of the State; and      5

(c)   three  persons  from  each  of  the  following  constituencies, nominated by

NEDLAC:

(i)   Organised labour;

(ii)   organised business; and

(iii)   organisations of community and development interests.                            10 (2) A member of the Board—

(a)   may be appointed for a term of up to five years; and

(b)   may be reappointed for a maximum of two terms.

(3) The appointment of the members contemplated in subsection (1)(a) and (b) must

be done after following a fair and competitive selection process.                                      15

 

Functions of Board

 

22. The Board must advise the Minister on—

(a)   work opportunities;

(b)   the criteria for the registration and de-registration of private employment agencies and the implementation and enforcement of the provisions of this Act   20 applicable to private employment agencies;

(c)   the development of criteria and guidelines for the implementation of this Act and the exercise of any function in terms of this Act;

(d)   the promotion of supported work for persons with disabilities as contemplated

by Chapter 6;                                                                                                        25

(e)   any regulations that the Minister may, or must, make in terms of this Act;

(f)    the publication of an annual employment services report; and

(g)   any other matter related to employment services, on request of the Minister or

NEDLAC.

 

Constitution of Board                                                                                                        30

 

23. (1) The Board must, as soon as possible after the appointment of its members and subject to the approval of the Minister, adopt a constitution.

(2) Subject to this Act, the constitution of the Board must provide for—

(a)   the procedure for the election of a deputy chairperson to act on behalf of the chairperson, in the absence of the chairperson;                                                  35

(b)   the establishment and functioning of a committee of the Board, including an executive committee;

(c)   the rules for convening and conducting of meetings of the Board and its committees, including the quorum required for and the minutes to be kept of those meetings;                                                                                                    40

(d)   the voting rights of the different members and the manner in which decisions are to be taken by the Board and its committees;

(e)   a code of conduct for the members of the Board;

(f)     the determination through arbitration of any dispute concerning the interpre- tation or application of the constitution;                                                             45

(g)   subject to subsections (3) and (4), a procedure for amending the constitution;

and

(h)   any other matter necessary for the performance of the functions of the Board. (3) At least 30 days’ notice must be given for a meeting of the Board at which an

amendment to the constitution is to be considered.                                                            50 (4) A supporting vote of at least two thirds of the members of the Board and the

approval of the Minister is required for an amendment to its constitution.


 

18

 

Disqualification from membership of Board

 

24. A person may not be appointed as or remain a member of the Board, as the case may be, if that person—

(a)   is an unrehabilitated insolvent or becomes insolvent and the insolvency results

in the sequestration of that person’s estate;                                                           5

(b)   has been declared by a competent court to be mentally ill;

(c)   has been convicted, in the Republic or elsewhere, of theft, fraud, forgery, perjury or any other offence involving dishonesty;

(d)   has  been  convicted  of  any  other  offence,  whether  in  the  Republic  or elsewhere, committed after the Constitution of the Republic of South Africa,   10

1993, took effect, and sentenced to imprisonment without the option of a fine;

(e)   has been, or is, removed from an office of trust on account of misconduct in respect of fraud or the misappropriation of money;

(f)    is otherwise disqualified from serving as a member of a board in terms of the

Companies Act, 2008 (Act No. 71 of 2008); or                                                  15

(g)   has or acquires an interest in a business or enterprise which may conflict or interfere with the proper performance of his or her functions as a member of the Board.

 

Resignation and removal from office

 

25. (1) A member of the Board may resign by giving to the Minister—                       20

(a)   one month’s written notice; or

(b)   less than one month’s written notice, with the approval of the Minister.

(2) The Minister may, subject to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), remove a member of the Board from office—

(a)   if such member becomes disqualified in terms of section 24;                            25

(b)   if such member acted contrary to this Act;

(c)   if such member failed to disclose an interest or to withdraw from a meeting as required;

(d)   if such member has failed to perform the functions of his or her office efficiently and effectively;                                                                                    30

(e)   on the ground of misconduct, incapacity or incompetence; or

(f)     if such member is absent from three consecutive meetings without leave of the chairperson.

 

Dissolution of Board

 

26. (1) The Minister may dissolve the Board if the Minister, on good cause shown,   35 loses confidence in the ability of the Board to perform its functions effectively and efficiently or on any reasonable grounds.

(2) The Minister may dissolve the Board only after having—

(a)   provided the Board with reasons for losing confidence in its abilities;

(b)   given the Board a reasonable opportunity to respond to those reasons; and      40

(c)   afforded the Board a hearing on any submissions received. (3) If the Minister dissolves the Board, the Minister—

(i)   may appoint an administrator to take over the functions of the Board to do anything which the Board might otherwise be empowered or required to do by

or under this Act, subject to such conditions as the Minister may determine;   45 and

(ii)   must, as soon as it is feasible, but not later than three months after the dissolution of the Board, replace the members of the Board in the same manner as the manner in which they were appointed.

(4) The appointment of the administrator terminates when the Board members have   50 been replaced.


 

20

 

Secretariat of Board

 

27. The Director-General must provide the necessary resources and secretariat to enable the Board to fulfil its functions.

 

Remuneration and allowances

 

28. A member of the Board who is not in full-time employment of the State may be     5 paid such remuneration and allowances as may be determined by the Minister, after consultation with the Minister of Finance.

 

Finances

 

29. (1) The funds of the Board consist of monies defrayed from the budget vote of the

Department.                                                                                                                                       10 (2) The Director-General, as the accounting officer of the Department, is responsible

for the funds referred to in subsection (1), subject to the Public Finance Management

Act.

 

Reporting

 

30. (1) The Board must report to the Minister at least once every year on its activities.   15 (2) The Board must report to the Minister on the activities of the Board as and when

requested to do so by the Minister.

 

CHAPTER 5

 

PRODUCTIVITY SOUTH AFRICA

 

Establishment of Productivity South Africa                                                                   20

 

31. (1) Productivity South Africa is hereby established as a juristic person to promote employment growth and productivity.

(2) Productivity South Africa must be managed in accordance with the Public Finance

Management Act.

(3) Productivity South Africa acts through its Board.                                                     25 (4) For the purpose of this chapter, ‘‘Board’’ means the Board of Productivity South

Africa established in terms of section 33.

 

Functions of Productivity South Africa

 

32. The functions of Productivity South Africa are—

(a)   to promote a culture of productivity in the workplace;                                       30

(b)   to develop relevant productivity competencies;

(c)   to facilitate and evaluate productivity improvement and competitiveness in workplaces;

(d)   to measure and evaluate productivity in the workplace;

(e)   to maintain a data-base of productivity and competitiveness systems and to   35 publicise these systems;

(f)    to undertake productivity-related research;

(g)   to support initiatives aimed at preventing job losses; and

(h)   to perform any other prescribed function.

 

Establishment and composition of Board of Productivity South Africa                      40

 

33. (1) The Board of Productivity South Africa is hereby established.

(2) The Board consists of seven members appointed by the Minister, as follows:

(a)   A chairperson;

(b)   two members nominated by NEDLAC to represent organised labour;

(c)   two members nominated by NEDLAC to represent organised business; and    45

(d)   two members to represent the government.


 

22

 

(3) The appointment of the members contemplated in subsection (2)(a) and (d) must be done after following a fair and competitive selection process.

(4) The Board is responsible for the management and control of the affairs of

Productivity South Africa.

(5) The members of the Board hold office for a period of five years and are eligible for     5 reappointment upon expiry of their terms of office, but may not serve for more than two consecutive terms of office.

 

Constitution of Board of Productivity South Africa

 

34. (1) The Board must, as soon as possible after the appointment of its members, prepare and adopt a constitution, subject to the approval of the Minister.                         10

(2) The constitution contemplated in subsection (1) must, subject to this Act, provide for—

(a)   the establishment and functioning of committees of the Board, including an executive committee;

(b)   rules  for  convening  and  conducting  of  meetings  of  the  Board  and  its   15 committees, including the quorum required for and the minutes to be kept for those meetings;

(c)   the voting rights of the different members of the Board and the manner in which decisions are to be taken by the Board and its committees;

(d)   the procedure for the filling of vacancies of the Board;                                      20

(e)   a code of conduct for members of the Board;

(f)     the determination through arbitration of any dispute concerning the interpre- tation or application of the constitution;

(g)   the procedure for amending the constitution;

(h)   financial  arrangements,  including  bank  accounts,  investment  of  surplus   25 money, annual budgets, annual reports, financial statements and annual audits;

and

(i)    any other matter necessary for the effective performance of the functions of

Productivity South Africa.

 

Chief Executive Officer                                                                                                      30

 

35. (1) The Board must appoint a Chief Executive Officer for the Board, who is the accounting officer of the Board.

(2) The Chief Executive Officer is responsible for the administration and the general management and control of the day-to-day functioning of Productivity South Africa, subject to the directions and instructions issued by the Board.                                          35

(3) The Chief Executive Officer must, at the request of the Board, attend any meeting of the Board, but is not entitled to vote.

(4) The Chief Executive Officer must, in addition to such function as may be assigned to him or her in terms of this Act—

(a)   supervise the employees of the Board;                                                                40

(b)   account for the assets and liabilities of the Board; and

(c)   perform any function and exercise any power assigned to him or her by the

Board.

(5) The Board may appoint any other employees it deems necessary for the effective performance of the functions of Productivity South Africa by the Board.                         45

(6) The procedure for the appointment of the Chief Executive Officer and other employees of the Board must be determined by the Board in terms of the rules.

(7) The Board must have due regard to representivity with reference to race, gender and disability when appointing the Chief Executive Officer and other employees.

(8) The Board must determine the conditions of service, remuneration and service   50 benefits of the Chief Executive Officer and other employees, after consultation with the Minister of Finance.

(9) If the Chief Executive Officer is for any reason unable to perform his or her functions, or if the post of the Chief Executive Officer is vacant, the Board may designate a person in the service of the Board to act as the acting Chief Executive Officer   55 until the Chief Executive Officer is able to resume office, or until the Board appoints a

new Chief Executive Officer.


 

24

 

Dissolution of Board

 

36. (1) The Minister may dissolve the Board if the Minister, on good cause shown, loses confidence in the ability of the Board to perform its functions effectively and efficiently or on any reasonable grounds.

(2) The Minister may dissolve the Board only after having—                                         5

(a)   provided the Board with reasons for losing confidence in its abilities;

(b)   given the Board a reasonable opportunity to respond to those reasons; and

(c)   afforded the Board a hearing on any submissions received. (3) If the Minister dissolves the Board, the Minister—

(i)   may appoint an administrator to take over the functions of the Board to do   10 anything which the Board might otherwise be empowered or required to do by

or under this Act, subject to such conditions as the Minister may determine;

and

(ii)   must, as soon as it is feasible but not later than three months after the dissolution of the Board, replace the members of the Board in the same   15 manner as the manner in which they were appointed.

(4) The appointment of the administrator terminates when the Board members have been replaced.

 

Disqualification from membership of Board

 

37. A person may not be appointed as or remain as a member of the Board, as the case   20 may be, if that person—

(a)   is an unrehabilitated insolvent or becomes insolvent and the insolvency results in the sequestration of that person’s estate;

(b)   has been declared by a competent court to be mentally ill;

(c)   has been convicted, in the Republic or elsewhere, of theft, fraud, forgery,   25 perjury or any other offence involving dishonesty;

(d)   has  been  convicted  of  any  other  offence,  whether  in  the  Republic  or elsewhere, committed after the Constitution of the Republic of South Africa,

1993, took effect, and sentenced to imprisonment without the option of a fine;

(e)   has been, or is, removed from an office of trust on account of misconduct in   30 respect of fraud or the misappropriation of money;

(f)    is otherwise disqualified from serving as a member of a board in terms of the

Companies Act, 2008 (Act No. 71 of 2008); or

(g)   has or acquires an interest in a business or enterprise which may conflict or interfere with the proper performance of his or her functions as a member of   35 the Board.

 

Resignation and removal from office

 

38. (1) A member of the Board may resign by giving to the Minister—

(a)   one month’s written notice; or

(b)   less than one month’s written notice, with the approval of the Minister.           40 (2) The Minister may, subject to the Promotion of Administrative Justice Act, 2000

(Act No. 3 of 2000), remove a member of the Board from office—

(a)   if such member becomes disqualified in terms of section 37;

(b)   if such member acted contrary to this Act;

(c)   if such member failed to disclose an interest or to withdraw from a meeting as   45 required;

(d)   if such member has failed to perform the functions of his or her office efficiently and effectively;

(e)   on the ground of misconduct, incapacity or incompetence; or

(f)     if such member is absent from three consecutive meetings without leave of the   50 chairperson.


 

26

 

Remuneration of members of Board of Productivity South Africa

 

39. A member of the Board, who is not in the full-time employ of the State, may receive such remuneration and allowances as the Minister may determine, after consultation with the Minister of Finance.

 

Finances of Productivity South Africa                                                                               5

 

40. Productivity South Africa is financed from—

(a)   money appropriated by Parliament for this purpose;

(b)   income earned from services rendered by it;

(c)   grants or donations made to it; and

(d)   money received from any other source.                                                              10

 

Reporting

 

41. (1) The Board must report to the Minister at least once every year on its activities. (2) The Minister must table the report contemplated in subsection (1) in Parliament within 14 days after receipt thereof if Parliament is in ordinary session or, if Parliament

is not in ordinary session, within 14 days after the commencement of its next ordinary   15 session.

 

CHAPTER 6

 

PROMOTION OF SUPPORTED WORK FOR PERSONS WITH DISABILITIES

 

Establishment of Supported Employment Enterprises                                                  20

 

42.  (1)  Supported Employment Enterprises is  hereby established as  a  national government component contemplated in section 7A of the Public Service Act, 1994 (Proclamation No. 103 of 1994), to promote work and employment opportunities for persons with disabilities.

(2) Supported Employment Enterprises must be managed in accordance with the   25

Public Finance Management Act.

 

Functions of Supported Employment Enterprises

 

43. The functions of Supported Employment Enterprises are to—

(a)   facilitate supported employment;

(b)   provide work opportunities for persons with disabilities;                                   30

(c)   develop  and  implement  programmes  that  promote  the  employability  of persons with disabilities, including persons with permanent disablement as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), in the light of their evolving needs in a changing

economy; and                                                                                                       35

(d)   perform any other function as may be prescribed by the Minister.

 

Appointment of head of Supported Employment Enterprises

 

44. The Minister must, in accordance with the Public Service Act, 1994 (Proclamation No. 103 of 1994), appoint a head of Supported Employment Enterprises, who is also the Chief Executive Officer and accounting officer of Supported Employment Enterprises.   40

 

Powers and functions of head of Supported Employment Enterprises

 

45. (1) The head of Supported Employment Enterprises is responsible for—

(a)   the administration and management of Supported Employment Enterprises, subject to the direction of the Minister;


 

28

 

(b)   the compilation of a business and financial plan and reports in terms of the Public Finance Management Act, 1999 (Act No 1 of 1999), for approval by the Minister;

(c)   the appointment of members of staff of Supported Employment Enterprises;

and                                                                                                                          5

(d)   control of, and maintenance of discipline over, members of staff of Supported

Employment Enterprises.

(2) The head of Supported Employment Enterprises is accountable to the Minister and must, when requested to do so, report to the Minister on the activities of Supported Employment Enterprises.                                                                                                     10

(3) If the Chief Executive Officer of Supported Employment Enterprises is for any reason unable to perform any of his or her functions, or if the post of the Chief Executive Officer is vacant, the Minister must, in writing, appoint another person as acting Chief Executive Officer until the Chief Executive Officer is able to resume those functions, or

until the Minister appoints a new Chief Executive Officer.                                                15 (4) (a) The head of Supported Employment Enterprises may, in writing and on such

conditions as he or she may determine, delegate any power or duty of the head of Supported Employment Enterprises to a senior member of Supported Employment Enterprises, unless the Minister prohibits a specific delegation.

(b) The power of the head of Supported Employment Enterprises to delegate includes   20 the power to sub-delegate.

(5) A delegation made under subsection (4) does not—

(a)   divest the Chief Executive Officer of the responsibility or accountability concerning the performance of the function in question; or

(b)   prohibit the performance of the function in question by the Chief Executive   25

Officer.

(6) A delegation made under subsection (4) may be repealed, withdrawn or amended, but  the repeal, withdrawal or amendment does not affect any right which may have accrued to a person as a result of the function performed before the delegation was repealed, withdrawn or amended.                                                                                        30

(7) The Minister may override any decision taken by the head of Supported Employment Enterprises, subject to any rights that may have vested as a consequence of the delegation.

 

Staff of Supported Employment Enterprises

 

46. The Minister may create the post structures necessary for the functioning of   35

Supported Employment Enterprises, after consultation with the Minister of Finance.

 

Finances of Supported Employment Enterprises

 

47. Supported Employment Enterprises are financed from—

(a)   money appropriated by Parliament for this purpose;

(b)   income earned from services rendered by it;                                                       40

(c)   grants or donations made to it; and

(d)   money received from any other source.

 

CHAPTER 7

 

GENERAL PROVISIONS

 

Jurisdiction of Labour Court                                                                                           45

 

48. (1) Except as otherwise provided in this Act and subject to the jurisdiction of the Labour Appeal Court, the Labour Court has exclusive jurisdiction in respect of all matters, excluding the prosecution of criminal offences, arising from this Act.

(2) The Labour Court may review any administrative action in terms of this Act on

any grounds permissible in law.                                                                                          50


 

30

 

(3) If proceedings concerning any matter arising from this Act are instituted in a court that does not have jurisdiction in respect of that matter, that court may at any stage during proceedings refer the matter to the Labour Court.

 

Monitoring and enforcement

 

49. (1) Chapter 10 of and Schedule II to the Basic Conditions of Employment Act     5 apply with the necessary changes required by the context to—

(a)   the monitoring and enforcement of this Act; and

(b)   any legal proceedings concerning a contravention of this Act.

(2) The Labour Court may, on application by the Director-General, impose a fine not exceeding R50 000 on an employer that contravenes any of the provisions listed in   10

Schedule 3.

(3) The Minister may, by notice in the Gazette, amend the maximum amount of the fine referred to in subsection (2) in order to counter the effect of inflation.

 

Offences and penalties

 

50. (1) It is an offence to—                                                                                             15

(a)   obtain or attempt to obtain any prescribed document by means of fraud, false pretences or submitting a false or forged prescribed document;

(b)   furnish  false  information in  any  prescribed document knowing that  the information is false;

(c)   obstruct or attempt to influence improperly a person who is performing a   20 function in terms of this Act; and

(d)   operate a private employment agency without being duly registered or in violation of its registration.

(2) A court that convicts a person of an offence contemplated in subsection (1)(a), (b)

or (c) may impose a term of imprisonment not exceeding 12 months or such fine as is   25 permitted by the Adjustment of Fines Act, 1991 (Act No. 101 of 1991), or both such fine

and imprisonment.

(3) A court that convicts a person of an offence contemplated in subsection (1)(d) may impose a term of imprisonment not exceeding 24 months or such fine as is permitted by

the Adjustment of Fines Act, 1991 (Act No. 101 of 1991), or both such fine and   30 imprisonment.

(4) Any employer who contravenes section 8(1) shall be guilty of an offence and liable on conviction to a fine or imprisonment as contemplated in section 49(3) of the Immigration Act.

(5) Any employer who contravenes section 9 shall be guilty of an offence and liable   35 on conviction to a fine or imprisonment as contemplated in section 49(6) of the Immigration Act.

 

Delegations

 

51. (1) The Minister may delegate to the Director-General any power or duty conferred or imposed on the Minister in terms of this Act, except a power to make   40 regulations and the Minister’s powers in terms of sections 21, 23, 28, 33(2) and 39.

(2) The Director-General must exercise any power or duty that has been delegated in terms of subsection (1), subject to any conditions that the Minister considers necessary.

(3) Any delegation in terms of subsection (1)—

(a)   must be in writing;                                                                                               45

(b)   does not prevent the Minister from exercising the power or performing the duty so delegated; and

(c)   may at any time be withdrawn in writing by the Minister, subject to any rights that may have vested as a consequence of the delegation.


 

32

 

Regulations

 

52. (1) The Minister may, after consultation with the Board, make regulations relating to—

(a)   the categories of employment in respect of which vacancies and new positions

must be reported, including—                                                                               5 (i)   job descriptions;

(ii)   qualifications;

(iii)   remuneration levels; and

(iv)   the format and manner in which vacancies and filling of positions must

be reported;                                                                                                  10

(b)   the recording of the names and prescribed details of work seekers on a register and their removal from the register;

(c)   a procedure and forms in terms of which private employment agencies may apply for registration;

(d)   a procedure for lodging and considering complaints concerning the operation   15 of private employment agencies;

(e)   a procedure for considering the cancellation of the registration of a private employment agency;

(f)     regulating the provision of employment services by persons outside of the public administration; or                                                                                      20

(g)   any other matter relating to the provision of public employment services or the regulation of private employment agencies.

(2) The Minister may, after consulting the Board of Productivity South Africa, make regulations regarding any improvements in workplace productivity and competitiveness which are necessary or expedient to enable the Board to perform its functions under this   25

Act.

 

Repeal of laws and transitional provisions

 

53. (1) The law specified in Schedule 1 is hereby repealed to the extent specified in that Schedule.

(2) The repeal of the law referred to in subsection (1) is subject to the transitional  30 provisions contemplated in Schedule 2.

 

Short title and commencement

 

54. This Act is called the Employment Services Act, 2014, and comes into operation on a date determined by the President by proclamation in the Gazette.


 

34

 

SCHEDULE 1

 

LAW REPEALED (Section 53)

 

No. and Year of Law

Short title

Extent of repeal

Act No. 97 of 1998

Skills Development

Act, 1998

1. The deletion of the definition of

‘employment services’’.

 

2. Sections 2(1)(g) and (h), (2)(a)(v), (vi) and (xii), 5(4) in so far as it relates to Productivity South Africa, 22(1),

23(1)(a) and (d), (2) and (3), 24, 25, 26,

26K, 26L, 26M, 26N, 32(1) and (2), 33

and 36(a), (o), (p) and (q).

 

3. Item 7 of Schedule 2A and Schedule 4.

 

4. Any other provisions in so far as it relates to ‘‘employment services’’ or Productivity South Africa, as established by section 26K.

 

 
5

 

 

 

 

 

 

SCHEDULE 2

 

TRANSITIONAL PROVISIONS

 

Definitions

 

1. In this schedule—

‘Productivity South Africa’’ means Productivity South Africa established in     5 terms of section 26K of the Skills Development Act;

‘Service Product Factories’’ means the 12 Service Product Factories established by Cabinet in 1948 employing persons with disabilities who are unable to obtain or retain employment in the open labour market;

‘Skills Development Act’’ means the Skills Development Act, 1998 (Act No. 97   10 of 1998); and

‘this Act’’ means the Employment Services Act, 2014.

 

Private Employment Agencies

 

2. (1) Any private employment agency registered in terms of section 24(1) of the Skills Development Act is deemed to be registered as a private employment agency in   15 terms of section 13 of this Act.

(2) A private employment agency contemplated in subitem (1) must apply for registration under section 13 of this Act—

(a)   within two years of this Act coming into effect, if it provides temporary employment services;                                                                                          20

(b)   within three years of this Act coming into effect, if it does not provide temporary employment services.

(3) The registrar appointed in terms of section 13(3) of this Act may deal with any application for the registration of a private employment services agency in terms of section 24(1) of the Skills Development Act, or deal with any matter in respect of which   25 the Director-General is considering the withdrawal of registration in accordance with section 24(5) of the Skills Development Act, which the Director-General is considering

at the time this Act comes into effect, in accordance with the provisions of this Act.

(4) Until such time as the Minister issues a notice in terms of section 15(2) of this Act, a private employment agency is entitled to charge a work seeker those fees permitted in   30 terms of Regulation 5(8) of the Regulations with regard to private employment agencies published in terms of the Skills Development Act.

Productivity South Africa

3. (1) Productivity South Africa established in terms of the Skills Development Act remains in force until repealed by this Act.       

(2) Anything done under the repealed provisions of the Skills Development Act relating to Productivity South Africa is deemed to have been done in terms of this Act.

Service Product Factories

4. All assets, rights, liabilities and obligations of the Service Product Factories established by Cabinet in 1948 are transferred to Supported Employment Enterprises  40 established in terms of section 42 of this Act, with effect from the date determined by the Minister by notice in the Gazette.

 

SCHEDULE 3

 

OFFENCES FOR WHICH A FINE CAN BE IMPOSED BY LABOUR COURT IN TERMS OF SECTION 49(2)

Failing to display a certificate of registration in a conspicuous place on the premises (section 13(8))

Contravening section 14(a) to (d).

Charging a fee to any individual work seeker for employment services (section 15(1)), except in accordance with section 15(2).

Deducting any amount from an employee’s remuneration in respect of the placing of that employee in employment (section 15(4)).

Requiring or permitting an employee to pay any amount in respect of the placement of that employee (section 15(4)).

Failing to keep up to date records (section 16).

Compromising the confidentiality of information (section 17).  

Last modified onSaturday, 29 August 2015 21:56
Gary Watkins

Gary Watkins

Managing Director

BA LLB

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