Any employer making use of part-time employees should review their policies and practices and the terms of that employment in relation to the terms on which full-time employees are engaged.
In "The Labour Relations Amendment Act, 2014 and Non-Standard Employment" we dealt with some general provisions and concepts which are important to an understanding of the amendments as a whole. These included the idea of non-standard employment, avoidance, justifiable reasons for different treatment, and the implications for the determination of organizational rights. In "The Labour Relations Amendment Act, 2014 and Non-Standard Employment: The Use of Labour Brokers" we reviewed the use of labour brokers. In "The Labour Relations Amendment Act, 2014 and Non-Standard Employment: The Use of Fixed Term Contracts" we discussed the use of fixed term contracts of employment.
In this note, we consider the general regulation of part-time employment
The note does not purport to be a detailed or complete explanation of the amendments or their significance. It must not therefore be read as constituting legal advice but rather as a means for employers to identify and respond to the most obvious risk areas.
Until now, the position of part-time employees has been largely unregulated by legislation save for the recognition given in some sections of the Basic Conditions of Employment Act and for the protection afforded by the unfair labour practice and unfair dismissal provisions of the Labour Relations Act.
The amendments introduced by section 198C look to increase the protection afforded by law to this category of non-standard employment.
To start, we need to consider to which employees the amendments do not apply. First, the section does not apply to employees earning more than the prescribed Basic Conditions of Employment Act threshold (currently R205 433, 30). So, if an employee is to earn more than R17 119. 44 per month the restrictions of the amendments will not apply.
Second, the provisions will not apply to an employer:
- that employs less than 10 employees, or
- that employs less than 50 employees and whose business has been in operation for less than two years, unless -
- the employer conducts more than one business; or
- the business was formed by the division or dissolution for any reason of an existing business;
- in respect of employees who ordinarily work less than 24 hours a month; and
- during an employee’s first three months of continuous employment.
With those preliminary remarks, we now consider the three protections which the amendments introduce.
First, taking into account the working hours of a part-time employee, irrespective of when the part-time employee was employed, the employer must treat a part-time employee on the whole not less favourably than a comparable full-time employee doing the same or similar work, unless there is a justifiable reason for different treatment.
Likewise, the employer must provide the part-time employee with access to training and skills development on the whole not less favourable than the access applicable to a comparable full-time employee.
Finally, an employer must provide a part-time employee with the same access to opportunities to apply for vacancies as it provides to full-time employees.
In most cases it will be reasonably clear who are part-time employees and who the comparable full-time employee is. Section 198C contains definitions of both and offers some guidance, but the detail of those provisions is beyond the scope of this note.
In our first note, we discussed what the concept of a justifiable reason involves, as well as drawing attention to the implications of using part-time employees in the determination of organizational rights.