Report Of The Employment Conditions Commission On The Investigation Into A Sectoral Determination For The Forestry Sector

REPORT ON THE INVESTIGATION INTO A SECTORAL DETERMINATION FOR THE LEARNERSHIP SECTOR-2011 TABLE OF CONTENTS

LIST OF TABLES…………………………………………………………………3

CHAPTER ONE…………………………………………………………………....4 Introduction………………………………………………………………………….4 Background to the investigation……………………………………………………..4 Terms of reference…………………………………………………………………...5 Methodology…………………………………………………………………………5 Structure of the report………………………………………………………………..8

CHAPTER TWO…………………………….…………………………………..….9 Sector Profile………………………………….……………………………………...9 Learners profile within the sector...... ….11

CHAPTER THREE………………………………………………………………...12 3.1. Definitions …………………………………….……………………………….…12 3.2. Minimum allowances………………………………………………………….….15 3.2.1. Annual increases on allowances………………………………………………...20 3.3. Family Responsibility Leave……………………………………………………...21 3.4. Annual leave………………………………………………………………………22 3.5. Maternity leave .…………………………………………………………………..23 3.6. Other Basic Conditions of Employment issues……..……………………………..24

CHAPTER FOUR…..………………………………………………………………28 EVALUATIONS IN TERMS OF ECC CRITERIA……………………………...28 The ability of employers to carry on their business successfully…………………….28 The operation of small, medium and micro-enterprises……………………………...28 The cost of living and the alleviation of poverty……………………………………..28 The likely impact of any proposed condition of employment on current employment or the creation of employment………………………………………………………..29

CHAPTER FIVE……………………………………………………………………30 SUMMARY OF THE RECOMMENDATIOS BY THE ECC……………………...30

LIST OF TABLES

Table 1: The consultative meetings schedule and attendance profile………………..6 Table 2: Questionnaire administration……………………………………………….7 Table 3: Overview of the SETAs existing within the Learnerships sector …………10 Table 4: Current Learners’ allowances………………………………….…………..16

Table 5: Proposed allowances for learners………………………………………….19

3 CHAPTER ONE

Introduction

The Employment Conditions Commission (ECC) has pleasure of presenting its report on the investigation into the Learnership Sector.

Background to the investigation The Skills Development Act, Act no 97 was passed in 1998 (SDA), introducing a new approach to the promotion and development of work- related skills in South Africa. The SDA seeks to address the challenges of job creation and the development of work-related skills. It does this by providing for the development and improvement of the skills of the South African workforce. The development and implementation of learnership is central to the skills development strategy and will play a pivotal role in the achievement of the objectives of the SDA.

Section 18(4) of the Skills Development Act makes provision for the Minister of Labour to establish a sectoral determination for learners in Learnerships in terms of chapter 8 and 9 of the Basic Conditions of Employment Act, Act 75 of 1997 (BCEA).

The SDA makes provision for two types of learners namely: (a) The first category of learners is learners in terms of section 18(1) of the SDA and these are learners who were in employment of the employer party to the learnership agreement when the learnership agreement was concluded. The conditions of employment for the employed learners are not affected by the learnership agreement. (b) The other category is learners contemplated by section 18(2) of the SDA.These are the learners who were not in the employment of the employer party to the learnership agreement when the learnership agreement was concluded. The focus of the Sectoral Determination 5 is learners covered by section 18(2).

The learners contemplated by this investigation are unemployed or pre employed persons wishing to enter into learnerships in order to improve or acquire skills that will enable them to enter the workforce or increase their chances of employment.

Sectoral determination No: 5 establishes conditions of employment and allowances for Learnerships in South Africa. The conditions of the determination are binding on

4 learners and their employers in all sectors where Sector Education and Training Authorities (Seta’s) have been set up.1

The current Sectoral determination 5 for the Learnerships sector was published on 15 June 2001 and became effective from 1 July 2001

Terms of reference

The terms of reference for this investigation as published in the Government Gazette No 33086 Notice No. 270 dated 07 April 2010 was as follows:

“ To review the rates of allowances and conditions of employment in Sectoral Determination 5, Learnerships, South Africa as well as investigating conditions of employment and wages for internship”.

Methodology A four-phased project framework was developed for the investigation:

Phase One – Administrative aspects

A notice was published in the government gazette on 07 April 2010, inviting interested parties to make written representations within 60 days to the Director- General.

In response to the notice, eight (8) written submissions were received from the following organisations:

1. CAESAR (employers’ organisation);

2. CHIETA ;

3. FASSET;

4. ISETT-SETA;

5. W&RSETA;

6. HWSETA ;

7. MQA and

8. CTFL

1 Sector Education and Training Authority (SETA) organizes and facilitates the funding of learnerships in a specific sector, and ensures the quality of the learnership. 5 Phase Two – Consultation with stakeholders

In order to gather information and inputs in relation to the published terms of reference, the Directorate Employment Standards consulted with the Department of Higher Education SETA Support and Learnership Directorate. Several meetings as indicated below were held where the Department of Higher Education gave inputs and also scheduled appointments on behalf of the Department of Labour (DoL) in order to meet relevant stakeholders and Managers. In addition, meetings were held with managers within the various SETAs. The consultation yielded information about practical experiences of the learnership system and, in particular, suggestions on the issues of learner allowances, terms and conditions of employment and also the inclusion of interns within the scope of the sectoral determination. The consultation meeting scheduled is set out in table 1 below.

Table 1: The consultative meetings schedule and attendance profile Province Dates Venues Time Stakeholders

Gauteng 04/06/10 Department of 10H00 DOL & DHET Labour Head 08 attendees Office 29/07/10 ETDP SETA 10H00 DoL & ETDP office employer representative 01 attendees 03/08/10 Department of 10H00 DOL, DHET ,SETA & Labour Head 19 attendees Office 01/10/10 Department of 10H00 DOL, DHET ,SETA & Higher 25 attendees Education Head Office

During the consultative meetings, it was agreed that members should comment on the review of Learnership Sectoral Determination No. 5. Furthermore it was agreed that a task team on behalf of SETAs constituencies to be established to look at this investigation. 2DHET prepared a consolidated submission from SETA representatives then submitted to Department of Labour.

2 DHET is the Department of Higher Education 6 A total of 10 site visits were conducted in certain workplaces across the country covering 8 provinces targeting specifically employers and learners. Table 2 reflects the site visits where interviews in the form of a questionnaire administration were conducted. The questionnaire process yielded results, as the secretariat managed to visit workplaces and interviewed a total of 190 learners and 11 employers.

Table 2: Questionnaire administration Name of Organisation No. of Employers No. of learners GAUTENG Atteridgeville Jewellery 02 21 Project NECSA 03 05 LH Marthinusen a Div. of 01 11 Savcio (PTY) MPUMALANGA Matla coal 0 05 NORTH WEST Impala Platinum Mine 0 21 KWAZULU-NATAL Natal Portland Cement 03 09 LIMPOPO Zurel Bros Co 02 80 NORTHERN CAPE Katu 0 30 WESTERN CAPE College of Cape Town 0 05 Rheinmetall Muniton 0 03 TOTAL 11 190

Phase Three – ECC Process

During this stage the ECC considered the inputs received and made its recommendations as contained in this report.

Phase Four – Publication of the amended sectoral determination

This phase will see the publication of amendments to the sectoral determination, once you have considered the recommendations of the ECC.

7 Structure of the report

The report consists of the following chapters:  Chapter 1 of this report gives a background of the sector and the methodology utilized;

 Chapter 2 of this report outlines the state of the learnership sector;

 Chapter 3 deals with the findings of the investigation and recommendations by the Department and the ECC;

 Chapter 4 deals with the proposals in light of the criteria that the ECC has to consider; and

 Chapter 5 summarizes the recommendations of the ECC

8 CHAPTER TWO

Sector Profile Key problematic features of the South African labour market include unemployment, unequal income distribution, poor socio-economic development and poverty. These factors pose a challenge to the government to create jobs and to develop a competent and skilled workforce. The learnership system is one of a range of interventions aimed at transforming access to education, work training and acquisition of skills.

The learnership system includes a structured learning component; a structured work experience component. Learnerships are essentially a set off tools aimed at achieving a number of transformations, which include addressing the needs of the South African labour market, by aligning education and training needs with labour market needs. In addition, learnerships are aimed at building a relationship between structured learning and work experience that equips learners with new kinds of competencies required by the labour market. The tolls needed to achieve these transformations include the following:  An institutional framework for establishing, designing, providing, monitoring and regulating learnerships programmes which meets labour market demands;  A learnership agreement between the employer, the provider and the learner that specifies the rights and obligations of each party.

9 Table 3: Overview of the SETAs existing within the Learnerships sector Organisation Description 1.AGRISETA Agriculture Sector Education and Training Authority 2.BANKSETA Banking Sector Education and Training Authority 3.CETA Construction Education and Training Authority 4.CHIETA Chemical Industries Education and Authority 5.CTFL Clothing, Textile, Footwear and Leather Sector Education and Training Sector 6.ESETA Energy Sector Education and Training Authority 7.ETDP Education, Training and Development Practices 8.FASSET Financial and Accounting Services Sector Education and Training Authority 9.FOODBEV Food and Beverages Manufacturing Industry Sector Education and Training Authority 10.FIETA Forest Industries Education and Training Authority 11.HWSETA Health and Welfare Sector Education and Training 12.ISETT Information Systems, Electronics and Telecommunication Technologies Sector Education and Training Authority 13.INSETA Insurance Sector Education and Training Authority 14.LGSETA Local Government Sector Education and Training Authority 15.MAPPP SETA Media, Advertising, Publishing, Printing and Packaging Sector Education and Training Authority 16.MERSETA Manufacturing, Engineering and Related Services Sector Education and Training Authority 17.MQA Mining Qualification Authority 18.PSETA Public Service Sector Education and Training Authority 19.SASSETA Safety and Security Sector Education & Training Authority 20.SERVICES SETA Sector Services Education and Training Authority 21.TETA Transport Education and Training Authority 22.THETA Tourism Hospitality and Sport Education and Training Authority 23.W&RSETA Wholesale and Retail Sector Education and Training Authority

10 Learners profile within the sector According to a research study conducted in 2006 by Human Sciences Research Council (HSRC), the study included 48, 452 learnership participants in its finding the following emerged. Of the 23 SETAs included in the study, MAPP had the lowest enrolment ( 82 learners) whilst CETA had the highest ( 6,143).CETA,SASETA, and MerSETA together accounted for more than one-third of total learnerships enrolments, with enrolments of 6.145, 6117, and 5234. The study also found that almost two-thirds (64 percent) of the total learnership enrolments were at the low-skill level (NQF Levels 1 to 3), 22 percent were at the intermediate skills level (NQF 4), whilst only 14 percent were at the high-skills level (NQF levels 5 to 7).

According to the results, 65% of learners completed their learnership, whilst 15% (6801 learners) terminated their study before completion of the learnership program.

Development Policy Research Unit (DPRU) in its report conducted in 2010 identified the following factors which are contributing to the non completion of the learnership program:

 Learners found other employment;

 Difficulties with accommodation, travel and finances;

 Non compliance of employers with learnership allowance and

 The stipend was either not paid to them timeously enough to support their learning or to meet the travel expenses to attend lectures.

11 CHAPTER THREE

This section focuses on inputs received from the stakeholders during the consultative meetings, written submissions and also from the questionnaire administration process. The format of the report in respect of the issues is as follows: issues for discussion, followed by the views of stakeholders, then the Department’s proposals and, finally, recommendations of the ECC.

The following issues are discussed in the report:

3.1. Definitions ; 3.2. Minimum allowances; 3.2.1 Annual increases on allowances; 3.3. Family Responsibility Leave; 3.4. Annual leave; 3.5. Maternity leave; and 3.6. Other basic conditions of employment issues

3.1. Definitions

Currently the Sectoral Determination 5 does not define a learner however it regards a learner as contemplated by section 18 (2) of the Skills Development Act.

(i) Learnership includes -

(a) a structured learning component;

(b) a structured work experience component;

(c) the learnership would lead to a qualification registered by the South African Qualifications Authority associated with a trade, occupation or profession; and

(d) the intended learnership is registered with the Director-General in the prescribed manner.

(ii) Apprenticeship – means a learnership in respect of a listed trade, and includes a trade – test in respect of that trade

(ii) Inclusion of internship

With regards to the internship definition, currently the Skills Development Act does not define internship. The contract of employment for interns was introduced under

12 the Old Manpower Training Act 56 of 1981, this explains why the apprentices and interns are paid directly by the employer. Since the amendment of the definitions in the Skills Development Act, it is then deemed to consider including the internships in the sectoral determination.

Views of the SETA The SETA’s urged the Department to note the significant changes in the Skills Development Act in the past 9 years in relation to learnerships .They raised concerns relating to the definitions that have changed which impact on the sectoral determination. They indicated that definitions in relation to employer, pre-employed and learner/apprentice, learning programmes, interns and internships needs to be aligned to the Skills Development Act as amended.

They proposed a single definition for the learner, the apprentice, and the internships. They indicated that their proposal is in line with the definitions as contained in the amended Skills Development Act and should include internships. Furthermore they also request the Department to ensure that there is a distinction between an employee and a learner to avoid employers considering learners as employees.

Views of the Employers Employers raised concerns regarding definitions in the learnerships sectoral determination. They proposed that certain terms used in the sectoral determination should be clearly defined and should correlate with the definitions in the SDA. In addition, employers argued that there is a difference between learners and interns. They mentioned that due to reason that internship programme totally differs from those of learnerships and their conditions of employment is the same as those of employees in the organization examples given was that, the time frames of the programme differs for instance 1 or 2 or 3 years and the other example, the employer deducts Pay As You Earn (PAYE) and also Unemployment Insurance Fund(UIF) from interns in which the learners who are in the learnership programme are not deducted UIF they indicated that interns have the qualification not the skill, whereas learners do not have both the qualification and the skill. They argued that a “one size fits all” approach in a form of a determination is not possible because different sectors have different needs with regards to their skills requirement, durations of the programme, working conditions, therefore apprentices and interns should have their own sectoral determination in order to avoid confusion.

13 Views of the Learners Learners did not give much input when it comes to definitions however they indicated that both learners and interns should have the same conditions of employment. The learners who were interviewed were mainly apprentices and were not familiar with the learnership sectoral determination. Learners especially from small business enterprises highlighted that they are vulnerable and need protection as employers often do not remunerate them accordingly. They alleged that some employers offer them lunch meal instead of the allowances and do not remunerate them at all. In additions they allege that when approaching their employers regarding the payment of allowances, some employers threatens them by terminating the learnership agreement and some indicate to them that SETA’s does not give them money for the allowances. Majority of the workplaces which were visited, learners did not have their learnership agreements and they did not have information regarding the payment of allowances.

Views of the Department The Department is mindful of the amendments which occurred on the Skills Development Act and therefore a need to review the sectoral determination is critical especially in relation to the definitions on both the Act and the determination. The Department therefore proposes that definitions and the scope of application should be aligned to the SDA. This will address the current situation where apprenticeship contracts are concluded in terms of the repealed Manpower Training Act. The Department therefore proposes that the following definitions should be aligned to the amended Skills Development Act No.97 of 1998 and should be included in the determination:

(a) That a learner: includes an apprentice

(b) Learnerships: includes an apprenticeship

 the learnership includes a structured learning component;

 the learnership includes a structured work experience component

 the learnership would lead to a qualification registered by the South African Qualifications Authority associated with a trade, occupation or profession ‘and

14  the intended learnership is registered with the Director General in the prescribed manner

 Apprenticeship – means a learnership in respect of a listed trade, and includes a trade – test in respect of that trade.

Furthermore, the Department noted the views raised by employers that both the learnership and internship programs differ however, in terms of output the Department is of the view that in learnership, a learner obtains a qualification while working in a structured learning environment whereas internship, the intern gets the work experience needed to complete their studies or an intern who is a recent graduate undergoing supervised practical training to gain work experience.

For the purpose of the sectoral determination, internship should also be aligned with the above definitions to avoid ambiguity in the determination as they have similar purpose which is to acquire skills therefore, the learners should be treated the same.

Views of the ECC The ECC noted the inputs by the stakeholders and the recommendations by the Department and recommended the following in relation to the definitions. The ECC pointed out that the sectoral determination is the secondary legislation to the Skills Development Act in that the definitions as contained in the SDA will directly apply to the determination. The ECC further pointed out that since the SDA does not make provision for the internship, the sectoral determination cannot prescribe conditions in relation to the internship. The Commission indicated that the environment, under which the internship is entered into as compared to the learnership, is totally different and also that SETA’s do not have any role in relation to the appointment and training of internships. The ECC therefore recommends that internships should not be covered under the determination. In addition the ECC recommended that no changes are suggested in relation to the definition of a learner in order to include the apprenticeship. The Commission argued that this is based on the fact that already the definitions are contained in the SDA which is the primary legislation in this regard.

3.2. Minimum allowances

The current sectoral determination stipulates allowances in accordance with the following table. This allowances were determined in 2001 and were never reviewed since then, hence the current investigation. The current allowances were determined in

15 relation to the number of credits already earned by learners during the learning programme. The table below reflects current allowances payable to learners.

Table 4: Current Learners’ allowances

Exit level ofCredit already earned byPercentage of wage to beMinimum allowance learnership learner paid as allowance per week NQF 1 or 2 0-120 35% R120-00 121 - 240 69% R240-00 NQF 3 0-120 17% R120-00 121-240 40% R 226-00 241-360 53% R 370-00 NQF 4 0-120 13% R120-00 121-240 25% R240-00 241 -360 53% R370-00 361-480 56% R540-00 NQF 5 to 8 0-120 8% R120-00 121-240 18% R260-00 241-360 27% R389-00 361 -480 38% R548-00 481-600 49% R700-00

Views of the SETA

SETA’s welcomed the decision by the Department of Labour to review the learners’ allowances as some employers still remunerate learners according to the current learnership sectoral determination and not taking into consideration the current cost of living in South Africa. They proposed that the allowances should be reviewed annually and not wait another 9 years for increases. In determining the increases of allowances, some SETA’s proposed a CPI3 related increase. Some SETA’s proposed the following:

An increase in the allowances should be linked to the level of increase to the Skills Development Levies. They argued that this approach will ensure that SETA’s can afford to fund the learnership programmes without any challenges.

The SETA’s in their different submissions forwarded the following in relation to an

increase in minimum allowances,

3 CPI means the Consumer Price Index 16 ISETT Seta proposed a fixed scale of minimum payments per week according to NQF levels. ISETT proposed that NQF level 1- 4 minimum allowance per week be pegged at R250.00 and NQF level 5-8 minimum allowance be pegged at R375.00 per week.

W&R Seta proposed that minimum allowances should be increased to at least R2000.00 per month at the entry level and incrementally increased as learners achieve their credits to R2500.00 and finally to R3000.00 upon certification.

MQA Seta proposed that minimum allowances be increased to at least R550.00 per week.

HWSETA proposed that the current allowances be increased by R30.00 per week for each level.

Views of the Employers Employers proposed that the current allowances provided for in the sectoral determination should be increased but the increases will depend on the grants received from the SETAs as currently different sector receive different grants from SETA’s for an example one organization mentioned that the SETA pays them a grant of R21 000 per learner in 12 months and another R38000 to train the learners excluding the allowances. Some employers pay directly the allowances to learners from their payroll system so a feeling is that the grants should also be reviewed to make sure that learners get allowances that will cater for their living costs, another employer mentioned that they remunerate R800 allowance to learners. Other proposals stated that the grant that is provided by SETAs to employers should be the same across all sectors. Employers however raised concerns that the current level of allowances paid to learners is not attractive to them hence the learnership programme which has to result in the countries skills development is suffering. In addition they indicated that due to the high level of unemployment rate in South Africa, some learners join the learnership programme due to the fact that they are not working and in most cases they do not complete the programme, they drop out. Employers furthermore requested the Department to ensure that taking in learners does not result to an added admistrative burden which result in an employer having to employ additional staff in order to do administrative work.

17 Views of the Learners Most learners in other sectors except mining proposed an increase due to the fact that, their allowances do not meet the basic needs related to their participation in the learnership programme. They indicated that allowances should be increased in order to ensure that expenses incurred as a result of participating in the learnership programme are met. Learners indicated that the challenge with regard to the allowances currently paid is that, it does not take into consideration the fact that some learners have to obtain accommodation during the period of learnership and also to buy themselves food. They argued that the allowances are pegged under the assumption that all learners reside in the surrounding environment where the learnership programme is taking place. During the site visits in both Limpopo and Gauteng, learners indicated that they do not get allowances and those who receive allowances are paid in relation to the rates as currently prescribed in the determination. Majority of the learners interviewed proposed an allowance related to nature or category of the learnership which the learner is admitted for.

Views of the Department The Department considers the fact that the allowances paid by employers are funded by the Seta’s. This therefore means that the employer does not incur any cost in relation to an allowance which the learner is entitled to. In addition, it should also be borne in mind that the level of allowances paid to the learners should be attractive to ensure that learners are motivated to undergo learnership programmes and also to attract employers to recruit more learners for tax rebate purposes whereby an employer gets a percentage off on tax when they recruit learners. Undergoing learnership programme as prescribed in the Skills Development Act is to capacitate the skills levels in the country and therefore significant consideration should be made when dealing with the allowances to ensure that it does not have any negative impact on the Skills Levies Fund and also does not jeopardize the objective of the Act. The investigation revealed that the allowance paid to the learners have to accommodate them in ensuring that they are able to pay for transport including any expenses which they might incur as a result of participating in the learnership programme which could also include accommodation.

The Department therefore recommends that the current approach in determining minimum allowances in the sectoral determination should be maintained. This 18 therefore means that the current allowances should be increased in order to arrive at the new learnership allowances. In determining new allowances, the Department recommends that since it has been 9 years that the allowances have not been reviewed, that and average CPI for the 9 years be calculated and be added to the current allowances for 9 years. Therefore, the average CPI for the past 9 years has been calculated to be 6.1% which has been added to the current allowances for the period of 9 years in order to arrive at the new minimum allowances for 2011 onwards. The table below reflects the proposals of the Department in this regard,

Table 5: Proposed Learners’ allowances by the Department

Exit level of Credit Percentage Minimum Annual Increase learnership already of wage to allowance earned by be paid as per week learner allowance NQF 1 or 2 0 - 120 35% R204.47 121 - 240 69% R408.92 NQF 3 0 - 120 17% R204.47 121-240 40% R385.10 Previous years 241-360 53% R630.45 minimum NQF 4 0 - 120 13% R204.47 121-240 25% R408.92 allowances per week 241 -360 53% R630.45 + CPI 361-480 56% R920.09 (Excluding Owner’s NQF 5 to 8 0-120 8% R204.47 121 -240 18% R442.99 Equivalent Rent) 241-360 27% R662.81 361 -480 38% R933.74 481-600 49% R1192.70

Views of the ECC

The ECC supports the proposal by the Department in using the average CPI for 9 years in determining the new level of learner allowances

3.2.1 Annual increases on Allowances

19 The current stipulated allowances were never increased since the inception of the sectoral determination in 2001.

Views of the SETA’s

Seta’s proposed that an increase on the allowances in the subsequent years should be determined by utilizing the CPI.

Views of the Employers

Employers indicated that adjustments should be made to the allowances and should be linked to the level of the increase in the Skills Levies Act.

Views of the Learners

Learners urged the Department to strongly ensure that increases are affected to the current allowances. They indicated that the current level of allowances does not meet their expenses incurred as the result of participating in learnership programme. Although learners did not propose a specific percentage increases, they proposed that their expenses should be taken into consideration when determining the level of an increase.

Views of the Department

In ensuring that allowances are kept at the level where learners are able to meet their basic demands as discussed above, the Department proposes that allowances be increased by CPI (excluding owners equivalent rent) until reviewed by the Minister. This means that the Department will announce the increases every year in a government notice until the Minister reviews the determination.

Views of the ECC The ECC supports the recommendation of the Department in relation the annual allowance increases that they should be increased by the CPI (Excluding Owner’s Equivalent rent) for each year. Furthermore the ECC supports the proposal in relation to the fact that the annual increases should not be linked to any time frame but that they will increase as recommended until the Minister reviews the determination.

20 3.3. Family Responsibility Leave In terms of the sectoral determination, learners that are in employment for longer than four months with the same employer are entitled to three days family responsibility leave per annum.

Views of the SETA

No changes were proposed by SETA’s to this section of the Learnerships Sectoral Determination.

Views of Employers Majority of employers consulted did not propose any amendments to this section of the Learnerships Sectoral Determination, however, one employer was of a different view stating that the family responsibility leave should be 4 days during each annual cycle due to the fact that, the employer provides learners with accommodation and their learners are not staying with their families therefore, when learner’s parents get sick they spent days on traveling and four days would be sufficient.

Views of the Learners Learners mentioned that they did not know of family responsibility leave they are entitled to; instead they take days from their annual leave in case something happened with their families as for those who are informed of the family responsibility made no proposals. Some learners are totally of a different view when it comes to family responsibility as some proposed 5 days or 6 days per annual cycle. The reason for this request was mainly that the additional days, would allow them to travel home, as they do not leave with their families.

Views of the Department In relation to the proposals made by learners and employers, the Department is of the view that the family responsibility leave as stated in the current sectoral determination is adequate taking into consideration that the learnership agreement is mostly a 12 month program therefore no proposal is made in relation to amending the determination.

21 Views of the ECC The ECC supports the proposal that the family responsibility leave clause should not be changed in the determination.

3.4. Annual Leave The learnership sectoral determination makes provision that learners are entitled to annual leave if 120 credits are obtained that is: 1 weeks paid leave for every 40 credits in access of 120 credits.

Views of the SETA No changes were proposed to this clause of the Learnerships Sectoral Determination.

Views of the Employers Employers made no changes or proposals to this section of the Learnerships Sectoral Determination.

Views of the Learners Some learners indicated that they currently receive 7 weeks’ of annual leave, which is much better than the 21 consecutive days as provided by the BCEA however, some proposed 30 days annual leave.

Views of the Department In relation to the proposals made by learners and employers, the Department is of the view that the annual leave as stated in the current sectoral determination is adequate taking into consideration that the learners are in a structured learning component and also a structured work experience environment which run mostly for 12 months with a purpose of acquiring skills therefore no proposal is made in relation to amending the determination.

Views of the ECC The ECC supports the proposal by the department that annual leave clause should not be amended in the determination.

3.5. Maternity Leave

22 In terms of the sectoral determination, learners are entitled to four consecutive months of maternity leave.

Views of the SETA

In its submission some SETA representatives highlighted that maternity leave is a challenge because the learnership programme mostly run for a 12 month period and when a learner falls pregnant within that 12 months it will interrupt the whole programme even on the financial side reason being, the employer cannot afford to pay the training provider for the extended time due to the maternity leave. Other proposals from SETA representatives is that a learner should be entitled to receive her full allowances during any period of maternity leave she takes and the employer must create a programme to assist a learner after coming back from maternity leave.

Views of the Employers Employers in their submission highlighted that when a female employee gets pregnant, the company learnership policy provides that her contract will be suspended or frozen and the learner is allowed four months maternity leave. When the learner returns the contract is re-instated. They however indicated that companies are reluctant to recruit female learners based on this condition and therefore the sectoral determination should make a provision for learnership contracts to be suspended in the event of learner falling pregnant.

Views of the Learners Learners consulted were in favour of the four months maternity leave as stated in the learnerships sectoral determination however some learners proposed 6 months .The female learners indicated that they are entitled to 4 months’ unpaid maternity leave. They are however entitled to claim from Unemployed Insurance Fund (UIF) as they do contribute to the UIF. This indicates that alignment with the BCEA would be sufficient.

Views of the Department The Department is of the view that the maternity leave as stated in the current sectoral determination is adequate and no additional amendments are proposed, also taking into consideration section 25 under the Basic Conditions of Employment Act.

23 Views of the ECC The ECC support the proposal that the maternity clause is adequate and should not be changed in the determination.

3.6. Other conditions of employment issues raised

Deductions

In its submission the SETA raised a concern that clarity is needed on the deductions of TAX, UIF and the payment of Skills Development Levy for learners. There are two ways of thinking about the payment of UIF for learners- the first is that as a learner it is an allowance that is received and not a salary therefore UIF should not be paid. The second is that UIF should be paid so that once the 12 month period of learnership is completed the learner can receive assistance for six months until they are able to find employment.

The Department is of the view that deductions as stated in the current sectoral determination under clause 7 and also the Unemployment Insurance Contributions Act states that UIF contributions does not apply to learners therefore, no additional amendments are proposed.

Workman Compensation Fee

In its submission, the SETA proposed that section 35 should include: The employer must pay the workman’s compensation fee for the learner. Other proposal indicated that the Sectoral determination must clarify where a learner/intern is funded through a project (e.g. National tooling Initiative Project) and where the learner is doing on-the- job training at various employers, which must pay the workman compensation.

The Department is of the view that clause 23 which is the application to occupational accidents or diseases as stated in the current sectoral determination is adequate and no additional amendments are proposed. 24 Study Leave

An employer proposed that since the determination is about learners therefore, a clause should be included that deals with the study leave.

The Department is of the view that the study leave is not regulated in the Basic Conditions of Employment Act which serves as the guideline for the learnership sectoral determination therefore, the proposal is that study leave be at the discretion of the employer.

Views of the ECC

Regarding other conditions raised by the stakeholders during the consultation process, the ECC supports the recommendations by the department that the current clauses in the determination adequately address all the issues raised. Therefore the ECC does not suggest any change relating to the issues raised.

Learners raised the following issues:

Deduction for tools of Trade

Learners raised a concern over the deduction of tools in the allowances made by employers.

The Department is of the view that clause 7 (6) as stated in the current sectoral determination is adequate and no additional amendments are proposed.

Learnership Agreements/ Employment Contracts Learners’ complaint is that employers do not provide them with copies of the contract of employment. They also proposed that after completion of the learnership programme, the Department of Labour and the SETA must ensure that they provide employment for those who successfully completed the programme so as to encourage others to take the learnership programme and not to drop out.

The Department is of the view that clause 27 (2) as stated in the current sectoral determination is adequate and no additional amendments are proposed.

Medical Aid and/ or Compensation for Injuries and Diseases Act (COIDA) Benefits Learners proposed that they should have a medical aid or be included under COIDA as they believe that they are also exposed to danger just like any other employee who works.

The Department is of the view that clause 23 which is the application to occupational accidents or diseases as stated in the current sectoral determination is adequate to answer the issue raised and no additional amendments are proposed.

UIF Benefits The learners also raised the issue of UIF cover, wanted to know why they are not entitled to this benefits. In response to this question, they were made aware that they are not contributing to the Fund as they are still learners not yet employees, therefore they can not be beneficiaries of the Fund.

The Department is of the view that deductions as stated in the current sectoral determination under clause 7 and also the Unemployment Insurance Contributions Act states that UIF contributions does not apply to learners therefore, the learners can not be beneficiaries and no additional amendments are proposed

Transport Allowance Learners also proposed that employers should be compelled to pay transport allowances or be compensated for their travelling during the learnership programme.

26 The Department is of the view that the transport allowance is at the discretion of the employer.

Views of the ECC

Regarding issues raised by the learners, the ECC supports the recommendations by the department that the current clauses in the determination and also other applicable legislations are clear on these issues and therefore no changes were recommended in relation to the issues raised by the learners.

CHAPTER FOUR

27 EVALUATION IN TERMS OF ECC CRITERIA Section 54(3) of the BCEA lays down the criteria which the ECC ought to consider when setting conditions of employment and minimum wages for a particular sector.

The ability of employers to carry on their business successfully Learnerships consist of various elements such as formal on/off the job training and workplace experience. Employers have to pay for the formal elements of training and only recoup the costs in terms of production when learners are on the workplace experience or are fully trained and involved in the productive work. It is difficult therefore to motivate employers to take on unemployed learners or indeed to encourage them to facilitate the upgrading of existing employees.

The operation of small, medium and micro-enterprises Small, medium, and micro-enterprises are small by definition and often lack the infrastructure needed to accommodate a large intake of learners and also the need to consider the administering of these leanerships in terms of their ability to afford the recommended allowances. Due to the specialised nature of their business, SMMEs are sometimes not in a position to offer the full range of the standards needed for a particular learnerships.

The cost of living and the alleviation of poverty Learnership is designed to address skills shortage in the South African labour market by increasing levels of skills and thereby creating chances of employability. The learner will incur costs for traveling, meals, possible accommodation and general living expenses. The learner will have extreme difficulty in financing his or her basic needs in absence of an allowance, especially in the case of an unemployed learner. Adult learners may have family and financial commitments which impact on their ability to undertake learnerships.The provision for a learner allowance will provide an incentive and opportunity for the unemployed to gain access to training and job opportunities, which would not have otherwise been available. Through time these will help to open up the poverty trap that is marginalizing a major section of the population. This means that an adjustment in the minima will impact on the lives of people other than the learners themselves.

28 The likely impact of any proposed condition of employment on current employment or the creation of employment

Lack of education and training opportunities in the past have led to a deficit in skills and a difficulty by workers to understand and optimize modern production and information systems. Globalisation and increased competition have resulted in changes that are leaving many employees feeling threatened in terms of job security and employment retention. Enterprises have responded to changes by reinventing or reengineering themselves, resulting in massive retrenchments and job losses.

Given these trends, large numbers of unemployed or pre-employed people are unable to find their way into formal employment, either for work or for educational opportunities. This is worsening by the large numbers of unskilled or semi-skilled people who are unable to enter into formal employment. The learnership system helps to address the problem. It is also vital that options for preparing learners for self- employment be considered in the design of the learnerships.

CHAPTER FIVE

29 SUMMARY OF THE RECOMMENDATIONS BY THE ECC

Department of Labour made several attempts to engage with Social Constituencies with regards to the reviewing of the Learnership sectoral determination however, no written submissions were received.