Bargaining council

[BBBEE_CompSpec]

You then need me to do the objection to prevent you getting in. Its better than having to fight your way out. Fighting your way out involves a decision by the Labour Court.

[Gerald]

Compliance order for non-payment of annual increase outcome

Hi All,

It has been a long and exhaustive process but after having received a Compliance order for non-payment of annual increase earlier this year, we appealed to the Bargaining Council. We received a reply that the Council had rejected our appeal. We still did not implement the wage increases and were summoned to a hearing for an Appeals Ruling with an independent Commissioner. Our original appeal to the Bargaining Council was based on the following grounds;
1. All our employees were on rates in excess of the new minimum rates.
2. We were struggling to secure contracts for mid to late 2009.
3. We obtained signed letters from ALL staff that we had undergone due process and that there was a unanimous decision to forgo increases to save jobs and to cut the short time to a minimum.

As a member of the ECA I sought assistance from them. During discussion I mentioned that I would take the matter to court, if necessary, I was asked to stand down and be rational as the ECA would argue our appeal to the Bargaining Council (Yes I got the famous "don't worry"ť speech and swallowed hook line and sinker). The ECA failed to mention that they and the union are the only parties to the Council and when the appeal was overturned, we were summoned to a hearing. The ECA had waited till the 11th hour (2 working days) before they informed me that they could not attend as they would have a conflict of interest. I immediately asked for a postponement to seek legal advice and this was granted.

The Bargaining Council was in the hearing arguing for the order. I questioned the Bargaining Council's ability to prove a 50.1% membership and the reply was that this was achieved through the ECA. Further to this I learned that there are only 2 parties to the council, the ECA and SAEWA. I questioned what the process was if a decision was deadlocked as there are only 2 members, I still await an answer from the Bargaining Council; the Commissioner is also still waiting. The Bargaining council was questioned as to the process of the appeal and they stated that an appeal had never been won before. The Commissioner queried why the appeal process was even there in the 1st place.

The arguments from the Bargaining Council were weak to say the least, the Bargaining Council arguing that if the appeal was upheld it would create unfair competitive advantage, that the Union would be forced into mass action (I raised the point that none of our staff are Union members) and that the appeal would go against the gazette labour law.

We have been through the process and we have won the appeal . We agreed to pay the gazette increase from 1 November 2009.

It's now time to take this a step further. I noted in the hearing that over half of our workers perform functions other than electrical. We need to test this. We need to also take a stance against the ECA who do not represent the interests of small to medium sized contractors. It is us the electrical contractors who, after all, give them the claimed 50.1% that entitles them to be representitave to the collective bargaining agreement.

As per BBEEE CompSpec and my previous plea, we need to stand together and fight this, or we lay down and get steamrolled - we will allways have the short end of the stick....

[Dave A]

Thanks for this, Gerald.

My next post is turning into a long one and needs a bit of thought, but it's coming.

[Alan]

First off

The ECA had waited till the 11th hour (2 working days) before they informed me that they could not attend as they would have a conflict of interest.

????.......This has got to make you think.

[Dave A]

Found this while doing a little research: One bargaining council for the whole industry! by Chris Greager.

[Alan]

It changes the Bargaining Council’s scope and jurisdiction. With effect from 21 April 2009 the council’s area of jurisdiction now covers the whole of South Africa, excluding the magisterial district of Kimberley, within a radius of 20 km from the Kimberley Post Office

Why is Kimberly excluded??

[3ghr]

3ghr

I have had the privilege of removing many a small contractor from this Bargaining Council. If you need assistance I will gladly come through to Benoni and assist you.

Hi, I would like to hear more about this, as we have been summoned to an Arbitration at the Bargaining Council re the fact that not all our 'ees are registered with them.

[murdock]

i had a meeting with one of the bargaining council team...we discussed the outstanding fee and the fact that my company is not only doing electricial work...i was told that when i fill out my return i had to indicate on the return what the percentage i had done electrical work and pay only that percentage...we also discussed the outstanding balance...which we came to an agreement on and i paid the agreed amount off in full...but ever month i still get warning letters and an account for the full outstanding balance plus the interest ...what now...do i get a lawyer?

[wynn]

3ghr read other posts about Shaun Higley who is bbbee comspec before you contact him

[msmoorad]

apologies if my post is going to derail the thread but you people seem as though you would be able to assist me with a little problem im trying to sort out.

a friend who lives down the road from me was injured at work on Sunady 13 August.
it was a rainy day and he fell from the 3rd storey of a building where he was doing the electrical installations.
his boss forced him to him work that Sunday despite it being raining & the workers are not provided with any safety equipment-safety harness, hard hats etc.
due to the rain, he slipped & fell.

now the real problem is that this guy does not have an ID book-he is apparently sharing the same ID number with another person and the Dept of Home Affairs has given him a letter in Feb stating that they are "dealing with the matter"

from what he told me, he does everything- DB's, 3 phase-all domestic & industrial installations etc- hes been working for this company (Trite Electrical & Cabling cc) for 3 yrs and 4 months.
his boss is exploiting him as he is afraid to speak out & cannot read & write well- he did not complete Std 7.
he gets paid R4000pm
and the most his overtime comes to is R900pm-thats from working 7 days a week from 7:30 until bet 8:00-9:00(ive seen the pay slip)
i know he does come home this late because his father in law also complains to me that his boss is overdoing it.


the boss owns 3 homes in one road- so i know he can easily afford to pay him more
plus, he told me that many times he collects the cash from the customer when they complete the job as per his bosses request.
most of the time its bet R5000-R20 00 per job!
theres only another senior employee(the bosses nephew) and 4 workers/labourers.

now , when he fell and fractured his wrist, he was taked to Mt Edgecombe Hospital (which is private).
he came home after 4 days.
his boss sent the driver at the end of the month with his salary-R4000
the next month-September, the boss says he is NOT going to pay him & he must claim from the Dept of Labour.

he has a very tattered n torn copy of his birth cert & the dept of Labour said they will accept a certified copy of it- provided it matches the ID number that his boss initially employed him under.
OK
so we get the boss to fill in all the forms & go back to the doctor who performed the op on his wrist (he has a steel plating now) who fills in another form & gives him a certificate saying he is NOT fit to work.
we gave this in to the boss who says he cant pay him for this- he must get his money from Dept of Labour but the boss desperately misses him as he does not have anyone else who can "run" a site for him.
the boss phoned him this past weekend & said he must come to work-even though he cant do anything- he must just supervise the staff & he will receive "something" for this.

im telling him that his boss is exploiting him even more- he is supposed to be getting 75% (R3000) per month, for the 1st 3 months and he should not have to go to work for it- if his boss wants him to come there and supervise-then he should give him something over and above that amount(R3000)

another issue
he told me his boss showed him that his pension fund is at R180 000- is that possible?
for just 3yrs & 4months of employment?

this company (Trite Electrical) is a member of the bargaining council and we went to their offices in Mercury House, Smith Str, Durban last week.
the lady there said if he wishes to resign & claim his money from the pension fund- it will take upto a year before he gets his money- is that true? or is there some ulterior motive for them holding on to contributors money for as long as they can?

cos he has been telling me that he wants to leave and start his own little company.
he says the money from the pension fund can get him a decent van & some good tools
he is telling me this almost daily- that he wants to leave.

that he has the numbers of all the good workers that have worked for his boss & they are all ready to work for him if he calls them.
most of them worked for only a few months for the company as they were not happy with the wages they were earning.

what do you guys think?

please advise me with respect to all the things that need to be sorted out in this case.
thanks.

[Dave A]

Quite a few issues to cover there, ms. Let's deal with that pension fund balance with the bargaining council first.

he told me his boss showed him that his pension fund is at R180 000- is that possible?
for just 3yrs & 4months of employment?

When he's getting paid R4000.00 per month? Not likely.
Factoring in that this might be what he's getting as cash in hand - i.e. less deductions - his total pension funding remuneration might be R180 000.00 over that period.

Assuming pension contributions between employer and employee totalling 15% of pension funding remuneration, pension fund contributions so far would total R27 000.00

Quite a few assumptions in there, so that figure of R27k should definitely be taken as a very rough estimate...

[msmoorad]

i also thought that its not possible.

anyways, he has gone back to work today- just to supervise the workers at a 2nd site and in return he will get "something".
he is scared that he will lose out on his holiday pay & bonus-therefore he went back.

although i feel sorry for him, im also a bit angry that he is allowing himself to be exploited.
i have drummed it into his head- that his boss is not doing him any favours.

cos the bosses wife likes to say "Ashley was doing nothing, sitting in the streets & Ricky(the boss) picked him up & gave him a job & made him into something...."
they try to make it seem as if they are doing him a favour instead of the obvious fact that they REALLY need him in order to be able to run 2 sites at a time.

ive heard direct from the bosses sons mouth that many guys have worked for them for the past few years but none last more than a few months.
the work is too hard, the hours long and the money is pathetic.

im not going to get too involved anymore-lets see what happens.

i only hope the mess with his ID is sorterd out soon.

[Dave A]

Out of idle curiosity, has a doctor issued a certificate saying he is fit for resumption of duties yet?

[msmoorad]

the doctor issued a cert saying he is NOT fit to work yet.
i went with him to the physio yesterday and he also says it will be a few weeks more before he gains any decent movement/strength in his wrist.
the physio said the fracture went into the joint and that COULD mean he will never regain full mobility of his left wrist.
i jokingly asked about any permanent disability claims & he said that since theres no loss of limb- he will only receive recompense for the period after the 1st 3 months that he is declared unfit for work by the doctor.

if he really does nothing at work & just supervises the workers as his boss said, im sure its Ok- but i hope the boss pays him over n above the R3000 he is supposed to pay for the 1st 3 months.
otherwise, he is being exploited again.

i told him that he should ask for an increase-i even spoke to the bosses wife personally and told her that they should give him an increase.
she agreed & said they will review his salary- but this guy is adamant he wants to leave.
from what i see, for the amount & type of work he is doing, they should be paying him R6000 pm minimum-for Mon-Fri.
and if his stories about the amount of money his boss is making are true-they can very easily afford it.


the company has always been running 2 sites at once:
one with my friend in charge
the other with the bosses nephew
now, he is feeling the pinch as he can only run one site- unless he works himself (which he does not seem to want to do).

[Gerald]

There seems to be a major issue that has been missed here. What is happening is illegal and should be stopped. We all know that the Bargaining council is only in the position they are in as a commercial venture. They do not care about workers, it is a revenue system. The Department of Labour is charged with the power to enforce the Law, and this is their mandate, and according to the posts above there seems to be a transgression of the Law that is applicable. If a staff member is injured, on duty, then it is the responsibility of the employer to report such an injury. From msmoorad's posts it is clear that there are a number of transgressions, including;

- The terms of the collective agreement, with regard to working hours and payscales
- Health and Safety law
- Injury on Duty proceedure

What gets to me is that we run a legal and compliant business, and that has a cost associated to it. We cover that cost within our margins and profits and then have to quote and tender against unscrupulous companies that clearly do nat have the same cost structures that we do, and therefore we lose work. Chances are that if these companys do not comply on their HR than they wont comply to SANS10142.

I say that the company should be investigated, and the staff memeber in the posts should take his time off sick to go down to the Department of Labour office and make an official complaint.