(1) Subject to the provisions of clause 198 of the Act—
| (a) | no employer shall require or allow an employee to undertake any class of work covered by this Agreement elsewhere than in his establishment, except where such work is in execution or completion of any order placed with that employer, and no employer shall require or allow any employee of any other employer to undertake on his behalf any class of work covered by this Agreement, except where such work is in execution or completion of an order placed by that employer with the other employer; and |
| (b) | no employee shall solicit or take orders for or undertake any class of work covered by this Agreement for sale and/or for gain either on his own account or on behalf of any other person or firm whilst he is in the employ of any employer engaged in the Industry. |
| (2) | Every employer undertaking to execute or complete any work in any region other than the region in which his establishment is registered with the Council shall notify the nature and place of work in writing to the Regional Council for the area in which the work is done within seven days of the commencement of such work and shall maintain at such place of work a register of the hours worked by all employees and their remuneration in respect thereof. |
| (3) | No employer shall utilise the services of workers within the meaning of section 198 of the Act unless the temporary employment service provides proof of the employer of— |
| (a) | the registration number allocated by the Director-General of Labour, in pursuance of the application of the provisions of the Unemployment Act, 1966 to the temporary employment service; |
| (b) | the registration number allocated by the Compensation Commissioner in pursuance of the application of the provisions of the Compensation For Occupational Injuries and Diseases Act 130 of 1993, to the temporary employment service; |
| (c) | the registration number issued by the Council in respect of the temporary employment service in pursuance of the Council's Registration and Administration Expenses Agreement. |
| (4) | An employer who procures a worker or workers within the meaning of section 198 of the Act from a temporary employment service shall notify the region as defined in clause 3 of this Agreement in writing of the business name and physical business address of the temporary employment service concerned within seven days from the date on which the services of the worker or workers procured are utilised within that region or, if the services of such workers are already being utilised at the date of coming into operation of this subclause, within seven days of the date of coming into operation of this subclause. |
| (5) | An employer who procures a worker or workers within the meaning of clause 198 of the Act from a temporary employment service shall complete a form in the format determined by the Council in respect of each such worker and such form shall be signed by both the employer and the worker concerned declaring that the particulars therein are correct. |
| (6) | The form referred to in subclause (5) above shall contain the following particulars: |
| (a) | The name, telephone number, residential address and identity number of the worker; |
| (b) | the business name, business telephone number and physical business address of the temporary employment service concerned; |
| (c) | the date from which the employer utilises the services of the worker and the expected termination date; |
| (d) | the site or workshop address where the services of the worker will be utilised; |
| (e) | the anticipated normal hours and overtime to be worked by the worker; |
| (f) | whether the worker will be engaged on work scheduled in this Agreement as Rate A work; |
| (g) | the scheduled occupation in terms of this Agreement applicable to the worker. |
| (7) | The employer shall submit the form referred to in subclause (5) above to the region as defined in clause 3 of this Agreement within seven days after he has commenced utilising the services of the workers concerned. |
| (8) | The temporary employment service and the client shall be jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes— |
| (a) | a collective agreement, concluded in a Bargaining Council that regulates terms and conditions of employment; |
| (b) | a binding arbitration award that regulates terms and conditions of employment; |
| (c) | the Basic conditions of Employment Act, or |
| (d) | a determination made in terms of the Wage Act. |
Any employer who utilises the services of a temporary employment service should, in view of the possible financial risk involved, ensure that the temporary employment service is complying with the Collective Agreement of the Council.
| (9) | A worker supplied by a temporary employment service to an employer in the industry and who performs work scheduled in this Agreement shall be regarded as an employee for purposes of this Agreement. |
| (10) | Where the employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms, but the employer offered to renew it on less favourable terms or did not renew it, such employee shall be regarded as having been dismissed. In such cases the date of dismissal shall be the date on which the employer offered the less favourable terms or the date on which the employer notified the employee of the intention not to renew the contract. |
(11)
| (a) | Temporary Employment Service providers (TES): |
| (i) | who have undergone a verification audit conducted by the Council; and |
| (ii) | who have successfully met all the requirements of the checklist; |
may be permitted to operate as temporary employment services providers in industry.
| (b) | A TES is obliged to utilise the same terms and conditions of employment that would be applicable to a company – when engaging an employee on a fixed term or limited duration contract of employment for a company; namely: |
Employment in terms of a contract which specifies that employment is in respect of a specific construction site for the duration of the site contract or a specific portion or section thereof.
Employment in terms of a contract of employment which specifies that employment is for the duration, or portion thereof, of
| (aa) | a contract secured by the employer to carry out specified installation, maintenance, overhaul or development work on existing equipment or on an installation not owned by the employer, or |
| (bb) | major maintenance, overhaul or development work on equipment or an installation owned by the employer necessitating the recruitment of employees over and above the normal complement. |
Employment in terms of a contract of employment that specifies that employment is for the duration or portion thereof of a specific contract secured by the employer to carry out repairs on a particular vessel.
| (iv) | Short-term fluctuations in workload: |
Employment in terms of a limited duration contact of employment which arises out of a situation where the employer is necessitated to take on additional employees, through a temporary employment service provider, as a result of having secured additional work of a short term nature. This employment will be limited in duration to a period not exceeding four months.
| (i) | All employees including those employed on a limited duration contract will have access at plant level to social facilities including canteens, toilet and ablution facilities. |
| (ii) | No employer shall require the procurement of employees from a TES for any period beyond that which is envisaged in the Limited Duration Contract of Employment provisions contained in Annexure "A" of the Collective Main Agreement. |
| (iii) | Where a worker works for a period beyond the terms of the contract such worker shall become permanent. |
| (iv) | All workers procured through TES will enjoy all existing terms and conditions of employment outlined in the Collective Main Agreement and may not be granted a package rate exemption, which take into account all benefits payable to employees as an hourly rate of pay, other than overtime and Sunday time. |
| (v) | Procured workers may not elect the option of choice in becoming members of the retirement schemes offered to employees in the Metal and Engineering Industries. |
| (vi) | To better monitor the prevalence of employees procured by TES, a separate monthly return to the Metal Industries Fund Administrators must be endorsed by a client in the industry whose workers have been procured through a TES to confirm the period for which employees are procured and the number thereof in each instance of procurement. |
| (vii) | Where an employer intends to use TES workers in scheduled occupations in the direct production process on a permanent basis, then clause 37 (i.e. the no-strike clause) should not be construed to limit the parties’ right to take industrial action in accordance with the provisions of the Labour Relations Act. |
LIMITED DURATION CONTRACT OF EMPLOYMENT
(The employer) ………………………………………………………. agrees to engage the services of (the employee) and the employee hereby agrees to accept service with the employer on the following terms and conditions:
(i)
| (a) | The contract of employment in terms of clause 3 of Annexure A to the Main Agreement shall be for a maximum period of …………………………………… months / weeks from date of employment, for the purpose of site work / turn-around work / ship repair work (delete whichever is not applicable) from …………………… to ………………… or completion of the specific work detailed hereunder: |
………………………………………………………………………………………………………………………………………………………………………………………………………………………….
| (b) | The contract of employment for short-term fluctuations in workload shall not exceed a period of four months from date of employment, viz from ……………………… to …………………………., or completion of the specific work detailed hereunder: |
(Note: Should a period longer than four months be required to complete a specific task or activity, the period and the specific task or activity must be specified hereunder):
………………………………………………………………………………………………………………………………………………………………………………
| (ii) | On completion of the contract detailed in (i) above, this contract shall automatically terminate. Such termination shall not be construed as being retrenchment but as completion of contract. |
| (iii) | The remaining conditions of employment, not expressly detailed above, shall be existing employer policy, rules and regulations and the general conditions of employment as contained in the Main Agreement for the Iron, Steel, Engineering and Metallurgical Industry, subject to the limitation set out in (ii) above. |
| (iv) | Where employment continues after completion of this contract in terms of (i) above this contract shall become null and void and the provisions of the Main Agreement shall apply. |
| (v) | Subject to the amendment of the general conditions of employment as set out in (ii) above, the engagement conditions shall be: |
| (a) | Occupation ………………………………………………………………………………………. |
| (b) | Rate of pay ………………………………………………………………………………………. |
(which shall not be less than the rate scheduled in the Main Agreement)
The employee acknowledges that he/she understands the contents of this contract and signifies acceptance thereof.
Signed at........……………………………………………….. on ……………………………...….20 ...... .
Employer:………………………………………………………………………………………
Employee:………………………………………………………………………………………
Witness:…………………………………………………………………………………………
| Note: | The employer and employee shall, during the period of employment in terms of this contract, observe the provisions of the applicable Benefit Fund Agreements. |
(12)
| (a) | Labour brokers who do not meet all the statutory requirements in terms of registration which the Bargaining Council and MIBFA will be deemed to be non-compliant labour brokers and shall be liable for prosecution by the Bargaining Council. |
| (b) | Likewise, employers who make use of labour broker services who do not meet all statutory requirements in terms of registration with the Bargaining Council and MIBFA will be deemed to be non-compliant employers and shall be liable for prosecution by the Bargaining Council in terms of the applicable penalties of the Bargaining Council agreements. |
| (c) | Employees engaged by a labour broker shall be entitled to all terms and conditions of employment as contained in this Agreement, including all Social Security Benefits from day one of employment. |
| (d) | Employees engaged by a labour broker will be treated no differently from employees employed by an employer on a permanent or limited-duration contract or fixed-term basis, in relation to the Council and MIBFA terms and conditions. |
| (e) | The parties commit to discouraging and minimising the use of temporary employment services in the industry and encouraging the permanent employment relationship between the employer and employee. This commitment will be referred to the Industry Policy Main Agreement Forum for continued and on-going engagement between the Parties. |
| (f) | The employer and the labour broker will be held jointly and severally liable for contraventions of Council agreements, rules and all instances of non-compliance. |
| (g) | The parties furthermore commit to ensuring the observance of fair labour practices when it comes to the relationship between employers, employees and labour brokers. Accordingly, in a serious endeavour to mitigate the risk arising out of the administration of unfair labour practices, the parties undertake that as far as it is practicably possible to do so the administration of fair disciplinary action will be administered by trained and professional persons in the employ of the secondary employer, where the capacity exists, or the primary employer, where it is not possible for the secondary employer to do so, e.g. where it is alleged that misconduct has taken place outside the secondary employers premises. |
| (13) | Employers who have been granted a "flat-rate" exemption in terms of which all employee entitlements are incorporated into a single, comprehensive hourly wage may only apply this to employees engaged on work construction sites. It may not be used in manufacturing establishments. |
| (14) | This Agreement shall apply to all Labour Brokers in the Industry and employees of Labour Brokers will enjoy the wage structures and all the benefits of the Bargaining Council Agreements. |
