Practical Labour Law Assignment

1 January 2017

The common law contract of employment would require that the two parties involved i. e. employer and employee conclude an agreement equitable to or at least meeting the needs of (locatio conductio operarum/employment proper). Considering the nature of the relationship between Mrs. James and the school, it is difficult to define who the employee and employer is, as the initial agreement for the services offered by Mrs. James was made between her and the parents. The school ultimately becomes responsible for paying her salary based on a request she made.

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No formal agreement is mentioned with regards to this arrangement for instance, is the school charging her an administration/handling fee or is she subjected to statutory deductions like UIF as the other teachers. Mrs. James was provided with the tools (i. e. two classrooms) to run her services by the school and they stipulated conditions of her using the schools facilities (provided she supplied the children with equipment etc). Thus it would seem as though a (location conduction operis ) or “provision of work” contract exists between the school and Mrs. James.

This contract unfortunately does not provide her with job security or recourse when facing acts of negligence or wrong doing by the other party to the contract. The control test indicates that Mrs. James ran her own after care centre without reporting to any of the staff members, in fact if ever there was a reporting structure it would probably be to the parents of the children she looked after. The governing body had no control over how she ran her classes either than the fact that they stipulated that toys and equipment be provided to the children and of course that the classrooms be well maintained.

The governing body can stipulate the code of conduct for the other teachers but surely Mrs. James would not be subjected to this. In terms of the Organizational test, Mrs. James has been a part of the school for 15 years receiving a cheque from the school governing body like any other member of the organization and hence feeling somewhat involved with the school. However should the teachers for instance be involved in industrial action over salaries would Mrs. James as “part of the teachers’ organization” get involved or benefit from salary increases?

There was no formal contract between the two but the school does provide the classroom (capital asset) and pay her via cheque signed by the governing body. To some degree they can terminate her services but not necessarily through disciplinary procedures as would be the case with their employees. If the school can no longer provide or choose to offer their facilities to someone else, surely the contract involved between Mrs. James and the school, would be more a tenant/landlord agreement rather than an employer/employee agreement. Who profits from the provision of these services?

The fees paid by the parents are wholly received by Mrs. James which makes it seem as though she’s the only one profiting from the services rendered but arguably the school indirectly benefits from this arrangement. For instance parents of prospective school children may consider the provision of after care facilities as an added bonus when trying to decide which school their little one should attend. Furthermore Mrs. James has the added benefit of receiving her collated fees on time with no risk of theft etc. in a convenient manner at no extra charge to her.

Teachers employed by the school earning a salary in exchange for the services carried out at the business of their employer are entitled to certain benefits. If the school was her employer then Mrs. James would’ve had to obey reasonable instructions from the school regarding her work but it seems she ran her business independently. The court should thus not rule in her favour as she wasn’t an employee of the school and hence cannot be retrenched. Question 2Word Count: 402 Skills development Act 97 ?Key purpose of the SDA and SDLA:

The Skills Development Act (SDA) 97 came into effect in 1998, it is centered at improving the South African workforce by providing skills and opportunities to South African citizens. It aims to improve the quality of a workers life and grant opportunities and flexibility of employment as well as increased competition in the workplace as workers become more productive and efficient in their work. Entrepreneurship or self employment is encouraged through this act. The workplace becomes an institution of active learning as employees are encouraged to study or continue to train further and acquire new skills.

Issues such as high unemployment or unskilled labour force can be addressed as employers are encouraged to employ unskilled workers for instance graduates or scholars with no working experience. Job prospects of historically disadvantaged individuals are improved through training initiatives. Provision and regulation of employment services Improved return on investment in the labour market due to increase in the levels of investment in training and education. In order to facilitate and finance SDA, the skills development levy Act (SDLA) was created.

It is a levy imposed on employers to ensure funds are generated towards financing skills development. ?Key provisions of the SDA that apply to our company: The National Skills authority ; National skills fund; labour centres ; SETA’s; Skills Development Planning unit and of course the Skills Development levy grant scheme where established to provide for SDA. SETA’s or Sector Education and Training Authorities through which learnerships are provided mean that we as an employer must-: 1. Employ a learner for a period specified in an the agreement 2. Provide the learner with specified practical work experience 3.

Afford the learner time to attend the education and training specified in the agreement ? Key procedures to be followed or set up to ensure compliance with SDA and SDLA : We have to apply to the commissioner of the South African Revenue Services to be registered to pay SDLA. The company also has to register with a relevant SETA. Payment of the levy must be made no later than seven (7) days after the end of each month. Every employer is subject to pay a skills development levy which is collected by SARS. This levy must be paid at a rate of 1% of an employee’s total remuneration excluding pension or retirement allowances.

Question 3Word count: 468 a) All South African employees working more than 24 hours a month and who are not receiving a monthly pension, nor employed under the skills and development act are entitled to a statutory benefit called UIF which stands for Unemployment Insurance Fund. In the event that you fall ill, pregnant or are dismissed from work and even if your contract of employment should expire and you are involuntarily out of work, you will then be able to claim benefits against UIF and will be paid out a certain amount over a certain period of time by the labour department.

Officers and some specified employees of national and provincial spheres of government may not claim UIF so too are foreigners entering the country for specified learnerships or contracts of service and employees earning commission only. Since you are of legal employment age and earn below the annual level determined by the minister of labour, you may apply for UIF should you involuntarily be unemployed subject to you having employment but not necessarily making contributions towards UIF for at least 13 weeks during the year before having to claim UIF.

The company will deduct contributions from your salary every month and pay both our contribution as well as yours towards UIF fund. We will both be subject to paying an equal amount of 1% of your earnings towards the fund. In your current position as trainee data capturer you will be earning R7500 which is below the current income ceiling of R8099 per month. In the event that you claim for UIF you will then be entitled to a percentage of R7500 multiplied by 12 months divided by 365 days as a benefit paid out to you.

Once a year the company pays out a bonus (guaranteed 13th cheque) to which a contribution for UIF will also be deducted however as your service with us progresses and you are possibly promoted into another role which may have the added benefit of a performance bonus, please note this will not be subject to UIF contributions. We will also make no UIF deductions on overtime paid to you or any other special allowances that don’t form part of the contract of employment you’ve just signed.

As a contributor to the fund, you may one day claim for illness; maternity/adoption benefits and of course in the event that you are for instance retrenched, dismissed or your contract is terminated and you are left unemployed, you may also claim for this. In the event that you should pass away, your dependants may also claim from the fund provided they do so six months of your death however under special circumstance the commissioner may accept applications older than six months.

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