ALERT LEVEL 4 REGULATIONS - WORKPLACE PLANS, SAFETY MEASURES, EMPLOYEES WHO ARE 60 OR OLDER AND STAFF WITH COMORBIDITIES
The regulations setting out the conditions and restrictions for Alert Level 4 were published on 29 April 2020.
The Regulations place a number of obligations on employers engaged in essential and permitted services to contain the spread of COVID-19.
Compliance Officer
The employer must designate a COVID-19 Compliance Officer who is required to oversee the implementation of the Workplace Plan and adherence to the standards of hygiene and health protocols relating to COVID-19 at the workplace.
Workplace Plan
Employers must develop a Workplace Plan for the phased return of their employees to the workplace, prior to reopening the workplace for business. This Plan must correspond with Annexure E to the Regulations, and must contain the following information:
- which employees are permitted to work;
- what the plans are for the phased-in return of employees to the workplace;
- the health protocols that are in place to protect employees from COVID-19; and
- the details of the COVID-19 Compliance Officer.
Annexure E of the Regulations provides that the Plan for small businesses can be basic, reflecting the size of the business. Although the term ‘small business’ is not defined in the AL4 Regulations, when read with the Occupational Health and Safety Direction of 28 April 2020 we take the view that small businesses are those with fewer than 10 employees.
Medium and large businesses (with 10 or more employees) must have a more detailed Plan, which must include the following:
- the date the business will open and operating hours;
- the timetable setting out the phased return to work of employees to enable appropriate measures to be taken to avoid and reduce the spread of COVID-19 in the workplace;
- the steps taken to get the workplace COVID-19 ready;
- a list of staff members who can work from home, who are 60 or older, and staff with comorbidities, who will be required to stay at home or work from home;
- arrangements for staff in the establishment (including sanitary and social distancing measures, screening facilities and systems, attendance record system and infrastructure, the designated area where the public is served, canteen and bathroom facilities, testing facilities for establishments with more than 500 employees, staff rotational arrangements); and
- arrangements for customers or members of the public, including sanitation and social distancing measures.
Safety Measures
The employer must develop measures to ensure that the workplace meets the standards of health protocols; adequate space for employees; and social distancing measures for the public and service providers, as required. It is important that the employer adheres to the principles required in the Directive.
Regulation 5(5) of the Regulations sets out the substantive requirements for the measures that must be taken. The overarching principle is that physical distancing must be implemented, and the measures must accordingly include the following:
- measures to enable employees to work from home, or to minimise the need for employees to be physically present at the workplace;
- restrictions on face-to-face meetings;
- special measures for employees with known or disclosed health issues or comorbidities, or any condition which may place such employees at a higher risk of complications or death if they are infected with COVID-19 (health risks); and
- special measures for employees above the age of 60 who are at higher risk of complications or death if they are infected with COVID-19.
‘Special measures’ are not defined, but would mean measures over and above the ‘normal/ ordinary’ measures that must be taken by an employer. Measures such as ensuring adequate space, providing employees with cloth masks, providing hand sanitizers, soap and clean water, limiting face to face meetings, and requiring employees who can work from home to do so, are ordinary measures.
‘Special measures’ would be additional measures to protect the above vulnerable groups of employees. These could include working from home, additional personal protective equipment (such as visors), workplace redesign where possible, temporary allocation of alternative functions e.g. such as switching a telephone receptionist with a front of house receptionist, and so on.
The List of Employees
Every employer must compile a list of employees in the Plan comprising the following categories:
- those who can work from home;
- those who are older than 60; and
- those with health conditions or comorbidities.
An employee may fall into more than one of the above categories.
In order to prepare this list, the employer would need to request the information from the employees. This is a voluntary disclosure and the general rule that such information may only be processed with the employee’s informed consent shall apply. An employee can accordingly not be sanctioned for not making the disclosure.
Where the employer is aware, as a result of a previous voluntary disclosure by the employee, of the employee’s underlying health condition, it may use this information for purposes of compiling the list. Certain employers have on-site clinics who hold the employees’ health information. This information is not necessarily ‘in the possession’ of the employer, and independent advice may need to be obtained regarding the processing and use of such information.
Are employees who are over the age of 60 and/ or who have comorbidities, precluded from accessing the physical workplace?
It is important to remember that with any category of employee, if s/he can work from home or reasonably practicable steps can be taken to enable this, the employer should permit her/ him to work from home.
Questions on the restrictions of the Regulations, therefore, only apply to those categories of employees who cannot work from home.
Annexure E of the Regulations specifically provides that the list must include ‘staff with comorbidities, who will be required to stay at home or work from home’. There are various ways of interpreting this sentence.
One interpretation is that the list should include all staff with health conditions with the consequence that they must all stay at home and work from home, where possible. If they are not able to work from home then the principle of ‘no work/ no pay’ would apply, or the employer could require such employees to take their accrued annual leave. On this interpretation, this category of employees would be legally precluded from attending the workplace.
Another interpretation is that the list should only include those employees who will, in fact, be required by the employer (in terms of its safety measures) to stay at home or work from home. On this interpretation, the list will not contain the names of other staff who fall into this category and who will indeed be required by the employer to attend at the workplace.
There is nothing in the substantive obligations contained in the Regulations that imposes an obligation on employees in this category not to come to the workplace. In addition, the provisions of Regulation 5(5) which require that special measures be developed for, among others, employees with health risks and comorbidities must have a specific purpose.
If the phrase in Annexure E, that these employees ‘will be required to stay at home’, is interpreted to mean that they may not come to work, what would the purpose be of taking ‘special measures’? We accordingly take the view that, on a proper interpretation of the Regulations as a whole, provision is made for requiring those employees who have health risks or comorbidities to attend at work (where it is absolutely necessary and cannot be done from home) provided that the employer implements special measures to ensure their health and safety.
With acknowledgment and thanks to Bowmans Attorneys
BRICS Manufacturing Conference Now Scheduled for 6 August
Johannesburg, 7 May 2020 – The inaugural, one-day BRICS Manufacturing Conference, which was scheduled to take place in Johannesburg on 21 May, has been moved to 6 August, Conference organisers said this morning.
The Chairman of the Manufacturing Working Group of the SA Chapter of the BRICS Business Council (BBC), Kaizer Nyatsumba, said the conference is postponed because of the level 4 lockdown currently in place in response to the Covid-19 pandemic.
Born out of the need to help embattled South African manufacturers to make better use of the country’s existing relations with its BRICS counterparts, the conference is expected to be attended by captains of industry, policy makers and public sector representatives, amongst many other stakeholders.
Mr Nyatsumba said the conference also aims to assist South African manufacturers to take better advantage of the opportunities presented by BRICS amidst the current economic slump.
“The manufacturing industry’s contribution to the economy has been declining over the past two decades as a result of cheap imports from Asian economies and rising operational and input costs.
“It goes without saying, therefore, that domestic manufacturers should look beyond the South African borders if they are to survive and grow. It is against this backdrop that we decided to host the conference that will seek to investigate how manufacturers can leverage the BBC Manufacturing Working Group (MWG) and discuss, among others, progress on MWG Projects and how they will advance the course of manufacturing in the country,” Mr Nyatsumba said.
Trade and Industry Minister Ebrahim Patel is expected to deliver the Conference’s opening address, while Aspen Pharmacare Group Senior Executive and BBC SA member Stavros Nicolaou, Manufacturing Circe CEO Phillipa Rodseth, National Associastion of Auto Manufacturers of South Africa CEO Michael Mabasa, Industrial Development Corporation CEO and BBC Financial Working Group Chairman TP Nchocho, Department of Trade and Industry Deputy Director-General Ilse Karg and IBM SA Chief Operations Officer Ziaad Suleman will take part in plenary sessions.
Some of the topics that will be discussed at the conference include “South African Manufacturers and the BRICS Business Council: The Manufacturing Working Group – Does It Matter? Progress Report on Priority MWG Projects”, “A Focus on Some of the Planned New Special Economic Zones”, and “How South African Business Can Leverage BRICS Membership Better”.
Mr Nyatsumba encouraged manufacturing industry stakeholders to attend the conference in order to make a contribution towards hammering out the necessary solutions that will reverse the fortunes of the industry and ultimately see it out of the doldrums.
ENTRY DEADLINE FOR SEIFSA AWARDS FOR EXCELLENCE EXTENDED
Johannesburg, 6 May 2020 – Owing to the Covid-19 pandemic, the Steel and Engineering Industries Federation of Southern Africa (SEIFSA) has moved its 6th Annual Excellence Awards ceremony from 28 May to 23 July.
The postponement of the ceremony has also resulted in SEIFSA extending the deadline for the submission of entries to 10 July.
“We realise that our sector has been adversely affected by the Covid-19 pandemic and that they are currently trying to navigate their way through the tough economic conditions. It is because of this reason that we have decided to give them more time to prepare and submit their entries,” CEO Kaizer Nyatsumba said this morning.
Manufacturers operating in the metals and engineering sector now have two more months to submit their entries for the seven SEIFSA Awards for Excellence categories.
Now in their 6th year of existence, the SEIFSA Awards for Excellence were born out of the need to celebrate excellence in the metals and engineering sector at a time when tough economic conditions make it difficult to compete, let alone excel.
Mr Nyatsumba said SEIFSA will present the:
- The Most Innovative Company of the Year Award to an organisation that has shown the best level of innovation in research and development or production;
- The Most Transformed Company of the Year Award will be received by a company that recorded the highest transformation level in ownership as well as the composition of its Board of Directors, Executive Management and Managerial Team. This category pits companies employing fewer than 100 people against those of similar size, and companies employing more than 100 people against others of similar size;
- The Health and Safety Award of the Year will be offered to a company with the best legal compliance record in Health and Safety or the lowest Lost-Time Injury Frequency rate between July 2018 and December 2019;
- The Artisan Development Award will go to the company that trained the highest number of artisans between July 2018 and December 2019;
- The Environmental Stewardship Award will go to a company that has successfully implemented greening initiatives in its day-to-day business operations during the period under review.
- The Customer Service Award of the Year will be presented to a company rated the highest in customer service performance during the period July 2018 – December 2019.
- Entries are also invited from companies whose Corporate Social Investment (CSI) programme/s between July 2018 and December 2019 had a major impact on the lives of their beneficiaries.
Awards entrants will be assessed on their performance in the period 1 July 2018 to 31 December 2019. He said entries are open to members of Associations federated to SEIFSA as well non-members.
Ends
Issued by:
Ollie Madlala
Communications Consultant
Tel: (011) 298 9411 / 082 602 1725
Email: ollie@seifsa.co.za
Web: www.seifsa.co.za
PLEASE HEED MANDATORY HEALTH REGULATIONS FOR LEVEL FOUR
Please be meticulous in your implementation of the Level 4 restrictions that came to effect on 1 May 2020, as South Africa enters a new phase of its response to COVID-19 in terms of the new regulations promulgated under the Disaster Management Act, 2002. The Regulations repeal and replace the previous lockdown regulations of 18 March 2020, as amended.
The Regulations provide a more detailed framework for businesses to know whether and the extent to which they are permitted to operate if they decide to return to work.
It is vital for employers to pay attention to health protocols and hygiene restrictions, that for the first time, are subject to a degree of standardization across sectors.
The promulgation of the Regulations follow the President’s announcement on 23 April 2020 that the COVID-19 response would be regulated in accordance with Five Alert Levels, with the most severe restrictions applicable during Alert Level 5, and the least during Alert Level 1. While the progression from Level 5 to Level 1 will not necessarily be linear and different levels may apply to different areas of the country at any given time, the nationwide movement to Level 4 on 1 May provides some respite for certain businesses.
The general position under Alert Level 4 remains that every person is confined to his or her place of residence subject to exceptions listed in a table of permitted industries and activities. Thus, the movement of persons is still strictly regulated and constrained to performing or obtaining permitted services or purchasing essential goods, as well as the travel required for these purposes.
MANDATORY HEALTH INTERVENTIONS
The major addition to the new Regulations is clarification as to what employers are required to do if they intend to and are permitted to reopen. Regulation 16 provides that all businesses must develop a plan for phased reopening which meets the standards of health protocols and required physical distancing measures. The nature of the plan depends on the size of the business. Small businesses will probably not require written plans. Medium and large businesses must take specific account of the factors listed under items 1-6 of Annexure E to the Regulations.
Each business must designate a COVID-19 compliance officer to oversee implementation of the workplace plan and adherence to the applicable health protocols. These include mandatory physical distancing measures, such as enabling remote working, restricting face-to-face meetings, ensuring that there is adequate space between employees, and taking special measures for employees over the age of 60 and other employees with known or disclosed health conditions which place them at a higher risk if they are infected with COVID-19.
All businesses are expected provide hand sanitiser which must be accessible to staff and customers.
Businesses need to further note that everyone will be required to wear a mask, or another item which covers their nose and mouth, on public transport, when they enter premises, and whenever they are in a public place. Where an employee has contact with the general public as part of their duties at work, it is the employer’s obligation to ensure that they are provided with a suitable mask.
Business Activity Index’s Dismal Performance Highlights The Devastating Impact Of COVID-19 On Local Businesses
Johannesburg, 4 May 2020 - The Steel and Engineering Industries Federation of Southern Africa (SEIFSA) is concerned about a huge dip in business activity in the broader manufacturing sector, as reflected by the sub-index of the ABSA Purchasing Managers’ Index (PMI) released today.
As a lead indicator, the headline PMI provides an insight to how purchasing executives, producers and various stakeholders in the broader manufacturing sector view the coming month. The data indicates that the headline PMI dipped to 46.1 points in April 2020, from 48.1 points in March 2020, moving the data further from the benchmark level of 50, which separates expansion from contraction.
Speaking after the release of the index, SEIFSA Economist Marique Kruger said the deterioration in the data indicates that local businesses felt the full impact of the Covid-19 pandemic, which brought the economy to an abrupt halt in April.
Moreover, Ms Kruger said the weak economic environment is compounded by declining demand, sales and exports.
“These poor trends are worrisome to both consumers and businesses, with extended ramifications on jobs and efforts to re-industrialise the economy,” said Ms Kruger.
She added that there is a need to urgently cushion the negative impact of the ongoing COVID-19 on local businesses by ensuring that companies have the necessary cashflow to buy raw materials, produce and sell intermediate manufactured goods. She said this was especially important, given that global and local value chains have collapsed.
Worryingly, the trend in the majority of the sub-indices deteriorated in April 2020 when compared to March 2020, with notably the business activity sub-index dipping from 30.7 points to 5.1 points and the new sales orders sub-index dipping from 32.1 point to 8.9 points. The best performing sub-index was the supplier’s performance sub-index, increasing to 89.3 points in April 2020 from 67.4 points in March 2020.
Ms Kruger said that given the current state of the economy, it is clear that there is a need for increased demand-side interventions to boost aggregate domestic demand, including renewed commitment to support local procurement and pursuing import substitution, as some trading partners are already easing the COVID-19 lockdown requirements earlier than South Africa. She said these types of initiatives will assist in rejuvenating the fragile local economy.
“The challenging operating environment calls for local businesses to adapt and get back to doing the basics right in order to ensure their sustainability. SEIFSA is hopeful that local companies will continue to make use of the various financial packages introduced by the Government or initiatives from SA Inc., aimed at assisting struggling businesses, with positive effects on the seasonally adjusted PMI for May 2020,” she concluded.
LOCKDOWN ALERT LEVEL 4: WORKPLACE READINESS COVID-19 POLICY AND PROCEDURE
As we prepare our workplaces to a return to work under Alert Level 4, we must keep in mind that we are subject to:
- strict health protocols, and social distancing rules;
- return to work to be phased in to enable measures to make the workplace COVID-ready; and
- return to work to be done in a manner that avoids and reduces risks of infection.
ANNEXURE E OF THE REGULATION REFERS TO A WORKPLACE PLAN NEEDING TO BE DEVELOPED PRIOR TO THE REOPENING OF AN ENTERPRISE EMPLOYING PERSONS
For small businesses, the plan can be basic reflecting the size of the business, while for medium and larger businesses, a more detailed written plan should be developed given the larger numbers of persons at the workplace.
The Plan for medium and large businesses must include the following:
- the date the business will open and the hours of opening;
- the timetable setting out the phased return-to-work of employees, to enable appropriate measures to be taken to avoid and reduce the spread of the virus in the workplace;
- the steps taken to get the workplace COVID-19 ready;
- a list of staff who can work from home; staff who are 60 years or older; and staff with comorbidities who will be required to stay at home or work from home;
- arrangements for staff in the establishment:
- sanitary and social distancing measures and facilities at the entrance and exit to the workplace;
- screening facilities and systems;
- the attendance-record system and infrastructure;
- the work-area of employees;
- any designated area where the public is served;
- canteen and bathroom facilities;
- testing facilities (for establishments with more than 500 employees); and
- staff rotational arrangements (for establishments where fewer than 100% of employees will be permitted to work).*Arrangements for customers or members of the public, including sanitation and social distancing measures.
Please find attached a base Workplace Readiness COVID-19 Policy and Procedure. We urge you to add, amend and/or customise the draft so that it reflects the unique operational and business realities of your business.
SUMMARY OF THE COVID19 DIRECTION ON HEALTH AND SAFETY IN THE WORKPLACE
The Minister of Employment and Labour has issued a Direction setting out the measures that employers are required to take to prevent the transmission of COVID19 in workplaces.
The Direction applies to all workplaces covered by the Occupational Health and Safety Act, 1993 (OHSA). It does not apply to healthcare facilities, which are regulated by a Direction issued by the Minister of Health.
The Direction contains the basic measures that employers must take to prevent the transmission of the SARS-CoV-2 virus in the workplace.
Businesses that are re-opening must put these measures in place before restarting work.
A risk assessment must be undertaken to adapt the provisions of the Direction to the requirements of individual workplaces.
The Direction does not reduce the existing obligations on employers in terms of the Occupational Health and Safety Act, 1993.
Employers must take measures to protect the health and safety of everyone in their workplace. This includes employees of contractors, self-employed persons and volunteers.
Administrative measures
Every employer must:
- notify workers of the Direction and how it will implement it;
- inform employees that if they have COVID 19 symptoms they must not be at work and grant paid sick leave;
- appoint a manager to address the concerns of employees and consult with workplace representatives;
- take measures to minimise the contact between workers and between workers and the public to prevent transmission;
- minimise the number of workers in the workplace at any time through shift or working arrangements to achieve social distancing;
- provide employees with information concerning COVID 19 and how to prevent its transmission;
- report any diagnosis of COVID 19 at work to the Department of Health and the Department of Employment and Labour; investigate the cause and take appropriate measures; and
- support any contact tracing measures by the Department of Health.
Social distancing
Workplaces must be arranged to ensure a minimum of 1½ meters between workers. If this is not practicable, physical barriers must be erected and workers must be supplied free of charge with appropriate Personal Protective Equipment (PPE).
Social distancing must be implemented in all common areas in and around the workplace to prevent crowding.
Symptom screening
Employers must screen workers for symptoms of COVID 19. Workers with symptoms must be placed in isolation and arrangements made for their safe transport for a medical examination, testing and/or for self-isolation.
Employees who recover from COVID19 may return to work after a medical evaluation and be subject to ongoing monitoring.
Sanitisers and disinfectants
Employers must:
- provide sufficient quantities of hand sanitiser with at least 70% alcohol content;
- ensure that work surfaces, equipment and common areas such as toilets, door handles and shared equipment are regularly cleaned and disinfected; and
- provide adequate facilities for hand washing with soap and clean water and sufficient paper towels.
Masks and personal protective equipment (PPE)
Workers must wear masks at work. Employers must also require members of the public entering workplaces to wear masks. Employers must provide each employee free of charge with at least two masks to wear while at work or commuting. There must be suitable arrangements for washing and drying masks.
Where a risk assessment indicates, workers must be provided with PPE to provide a greater level protection. Employers must keep up to date with recommendations from agencies such as the National Institute for Communicable diseases and the National Institute for Occupational Health on the appropriate steps to take to prevent transmission in their workplaces and the provision of PPE.
Ventilation
Every workplace must be well ventilated to reduce the viral load.
Small business
The Direction sets out the obligations of businesses with less than 10 employees
Enforcement
Labour inspectors are empowered to promote, monitor and enforce compliance with the Direction. Employers who do not comply with the Direction may be ordered to close their business. In addition, as the failure to comply fully with OHSA is a criminal offence, failure to take the necessary measures to prevent the transmission of COVID 19 may result in criminal prosecutions.
INAUGURAL BRICS MANUFACTURING CONFERENCE TO INVESTIGATE PRIORITY PROJECTS
Johannesburg, 29 April 2020 – The establishment of the BRICS Manufacturing Working Group (MWG) subsequently gave birth to numerous priority projects identified across a number of the sub-clusters of the manufacturing sector.
Included in the MWG’s priority projects are, among others, Electromobility Solutions; Smart Cities, Light Passenger Aircraft Manufacturing as well Exponential Manufacturing, Bio-Plastic Technologies and Project Thuthukisa.
But what do these projects seek to do? What is their current state and what progress has been made in achieving their mandates? Detailed progress reports on each of the Priority MWG Projects will form part of the plenary sessions at the inaugural BRICS Manufacturing Conference scheduled to take place in Johannesburg on 21 May.
Delivering the projects progress will be NAAMSA CEO Michael Mabasa, who heads the Electromobility Solutions Project; IBM SA COO Ziaad Suleman, who is responsible for the Smart Cities Project; Denel Auronautics Senior Marketer Lesetja Mogoba, who heads the Light Passenger Aircraft Manufacturing Project; Pelchem MD Ivan Radebe, who is responsible for Project Thuthukisa; and the Exponential Manufacturing Project’s Head Johann van Tonder, among others.
According to the Chairman of the Manufacturing Working Group of the SA Chapter of the BRICS Business Council (BBC) Kaizer Nyatsumba, the Conference was born out of the need to help embattled South African manufacturing companies make better use of the country’s existing relations with its fellow BRICS counterparts. He said the Conference is expected to be attended by captains of industry, policy makers and public sector representatives, amongst many other stakeholders.
“The manufacturing industry’s contribution to the economy has been declining for the past two decades as a result of cheap imports from Asian economies, lacklustre domestic demand and rising operational and input costs.
“It is important, therefore, that domestic manufacturers should not only look beyond our borders if they are to survive and grow, but also be pathfinders of new sub- sectors, new innovations and new technologies. It is against this backdrop that we decided to host the conference, which aims to assist South African manufacturers to take better advantage of the opportunities presented by BRICS, amidst the slump that the economy currently finds itself in,” Mr Nyatsumba said.
Other topics that will be discussed at the inaugural conference include “South African Manufacturers and the BRICS Business Council: The Manufacturing Working Group – Does it Matter?”, “A Focus on Some of the Planned New Special Economic Zones” and “How South African Business Can Leverage BRICS Membership Better”.
Mr Nyatsumba encouraged manufacturing industry stakeholders to attend the conference not only to be addressed by the speakers of the day, but also to make a contribution towards hammering out the necessary solutions that should contribute towards reversing the sector’s fortunes.
Ends
Issued by:
Ollie Madlala
Communications Consultant
Tel: (011) 298 9411 / 082 602 1725
Email: ollie@seifsa.co.za
EMPLOYMENT CONTRACTS – The DOs and DON’Ts
Although most contracts are concluded informally, contracts of a commercial nature should be recorded in writing. Employment contracts fall within the scope of commercial contracts, because what is an employment contract then if not one of rendering services and payment for rendering such services. The contractual document is an instrument that reflects the agreement between the parties and serves as the primary evidence relied upon to enforce the parties’ contractual rights.
There are material issues that need to be dealt with when drafting an employment contract. These are often referred to by lawyers as essentiala (essential elements) and have to be present in a contract in order for the contract to qualify as a specific type of contract. In an employment contract, these would typically be the rendering of services by the employee for remuneration paid by the employer. If these essential elements are not contained in a contract, the contract could be void due to vagueness and, therefore, be unenforceable.
Contracts also contain additional clauses, called naturalia, and these provisions apply to specific contracts even though parties may not specifically agree to these provisions. In the case of an employment contract, these would be provisions relating to leave or working hours contained in employment legislation or the collective agreement in a particular sector. These basic provisions naturally find application in employment contracts by law, serve as the bare minimum and cannot be “contracted away”. It is always to the benefit of parties to include these provisions since the express inclusion will bring these provisions to the attention of the parties and eradicate any uncertainty.
The main objectives when drafting a contract is to draft it clearly in a way that ensures that the parties to the contract know exactly what is expected of them, and that the parties and a court will interpret the contract in a way the parties intended.
THE DOs
- Do start with a generic form as a guide, and adapt it to your particular situation and make sure to address issues described by employment legislation, such as working hours, leave and remuneration
- Do entitle the document “EMPLOYMENT CONTRACT” so that there can be no mistake as to its intent.
- Do make sure the parties are properly identified in the first paragraph, that names are spelled correctly and that addresses are accurate.
- Do date the contract on the day it was signed and indicate where it was signed. If the parties sign on different dates, the date of the contract will be the date when the last party signs. Also, include the date of commencement of employment (and termination date if the contract is temporary in nature).
- Do use common-sense headings to make it easier to find particular provisions in the contract.
- Do number the paragraphs for ease of reference.
- Do use plain language whenever possible.
- Do define all technical terms.
- Do consider the placement of punctuation marks, since even a misplaced comma can change the meaning of a sentence.
- Do carefully review the use of conjunctions, especially “and” and “or,” since the word you choose can have a dramatic impact on meaning, and preferably draft your contract in the active voice.
- Domake sure that the contract addresses all possible contingencies and that nothing is left to chance.
- Do have your attorney review every contract before you sign it.
- Doask your attorney any questions you may have about the contract — remember, there is no such thing as a stupid question, but it can be stupid to let a question go unanswered and pay for it later.
- Dosign in blue or other coloured ink to make the original easily distinguishable from photocopies.
- Doinitial every page of the contract and make sure the other party does the same so that nothing is missed.
- Doinclude notarization if required by applicable law.
- Do retain a copy of the contract for your records.
THE DON’Ts
- Don’t include legalese or archaic phrases like “the party of the first part”, “heretofore,” etc. They generally add little in terms of clarity.
- Don’t include overly long sentences; rather, break sentences down into easily digestible thoughts.
- Don’t be repetitive – unless it is absolutely necessary to do so. It is preferable to refer back to a previous provision according to its number or heading rather than to repeat it verbatim.
- Don’t assume the other party defines terms the way you do. If there is any doubt, include a definition in the contract.
- Don’t read the contract over hurriedly. It takes time to understand all of the possible nuances of the language used.
- Don’t accept the other party’s oral explanation of a confusing term. Include everything in writing.
- Don’t start acting according to the terms of the contract until both parties have executed it.
- Don’t agree to a modification of the contract without memorializing it in writing.
- Don’t assume that use of a standard or form contract eliminates the need for your lawyer’s review. Even if a standard contract worked well in one instance, a change of circumstances, date, or party can change the whole equation.
There are no set legal rules or legal requirements that require contracts to be drafted in a particular way. However, care must be taken to investigate the application of employment legislation in order to comply with any relevant statutory prescriptions when drafting. Care must also be taken to ensure that your contract follows a clear, logical structure and incorporates the rules of best practice.
Drafting a sound and enforceable contract takes considerable skill that requires attention and understanding of employment law and complex substantive contract law. It is, therefore, crucial that a contract be drafted by someone who has demonstrable expertise in and sound knowledge of both fields.
One must keep in mind that the contract serves as the primary evidence of contractual rights. A court cannot conclude a contract for the parties and a court has no jurisdiction to correct or improve a contract or its wording, unless the court is required to do so in time-consuming and very costly litigation.
Ends
EIGHT (8) COMMON QUESTIONS ABOUT REGISTERED ASSESSORS AND MODERATORS IN THE WORKPLACE
The question is often asked: “Why do we need assessors and moderators?”
This blog will shed some light on this subject as we explore eight (8) Common Questions people tend to ask. From the offset, we just need to emphasize that there is a very distinct difference between each of these roles.
The following questions will provide clarity on the subject and hopefully set the stage for a deeper exploration through training and hiring both Assessors and Moderators in South African businesses.
1. What is assessment?
Assessment is a process where the activities of an employee are observed and compared with a set of requirements to determine whether the employee can execute a task according to set requirements.
2. What is a registered assessor?
A registered assessor is someone who is trained specifically against a national unit standard, 115753, on the process and principles of assessment. A registered assessor meets the set criteria and requirements of the specific SETA which they intend to register with. To register as an assessor with a SETA, the assessor must provide evidence of his/her proficiency in the specific area in which s/he wants to register.
3. What does a registered assessor do?
A registered assessor has the primary responsibility of evaluating (assessing) an employee’s ability against a set criteria to confirm that the employee is competent and able to do the tasks allocated to her/him.
4. What benefit is there in having a registered assessor?
There are a number of reasons why companies should have registered assessors on their staff. All of the points below will be made possible for companies by having a registered assessor on their staff. It follows, then, that the criteria and guidelines for assessors are extremely strict, thus ensuring that the best possible assessors go through the course. These practitioners ensure that well-qualified and competent people in the workplace, along with the company’s training programme, should:
- Create opportunities for employees to progress/advance through a company;
- Be certified, recognised and accepted anywhere in the country;
- Enable an employee to find alternative employment in the event of job loss;
- Acknowledgement in B-BBEE verification; and
Employees could achieve nationally- (in some cases internationally) recognised workplace-based qualifications.
5. Who should be registered assessors?
The following people are recommended to be trained as assessors:
- Anyone who needs to become a registered assessor;
- Line staff responsible for assessment in the workplace (such as supervisors and managers);
- HR and HRD practitioners; and
- Anyone who needs to achieve an NQF-registered ETDP or HR-related qualification, since this qualification requires competence in the generic unit standard Conduct Outcomes-Based Assessment.
6. What is moderation?
Moderation is a process of quality assurance where the activities of an assessor are quality assured to confirm that the assessor conducted the assessment in a fair manner and that the evidence for competence, required by the standard, is available and correct.
7. What is a registered moderator?
A registered moderator is someone who is trained specifically against a national unit standard, 115759, in the process of moderation. A registered moderator meets the set criteria and requirements of the specific SETA which s/he intends to register with. To register as a moderator with a SETA, the moderator must provide evidence of her/his proficiency in the specific area in which s/he wants to register and that they have also successfully completed the unit standard training for assessors, 115753.
8. Who should be registered moderators?
The following employees are recommended to be trained as moderators:
- Anyone who is a registered assessor; and
- Line staff members responsible for assessment in the workplace (such as supervisors and managers).
The fact is that if a company pays more than lip service to its training programme, it must make use of assessors and moderators. The company must ensure that its assessors and moderators are trained to the highest standards and that the people being trained in the company improve their skills and that the products being produced show a marked and quantifiable improvement. The company should also show an improvement in its reputation, as the quality of its people start being recognised as industry leaders being sought after by other companies in the industry.
Assessors and Moderators are the building blocks of any company’s skills base.
Ends