Suchergebnisse

The contribution critically reflects on the proposed amendments to the Unemployment Insurance Act Act 63 of 2001 (the UIA / the Act), introduced via the provisions of the Unemployment Insurance Amendment Bill of 2015 (B25-2015). Several shortcomings and deficiencies are addressed and improvements introduced by the proposed amending legislation, including the extension of coverage to a wider range of beneficiaries, the extension of the period of benefits (to a maximum of 365 days), the increase of the rate of maternity benefits of a (female) contributor's earnings, the adjustment of the accrual rate of a contributor's duration of benefits from 1 day for every 6 days of employment to 1 day for every 5 days of employment, and some attempt to provide for employment retention and the re-entry of unemployed contributors into the labour market. And yet, despite these important contributions to the development of unemployment insurance in South Africa, several matters appearing from the Bill point towards inconsistent, inadequate and inappropriate treatment of core elements of the unemployment insurance system. Recommendations have been made to address these matters, which among others relate to: The insufficient alignment of the UIA with ILO, UN and SADC standards in key areas of concern; Unclear or absent provisions in relation to the coverage and/or application of the UIA in relation to public servants, migrant workers, and the self- and informally employed; Inadequate provision for employment promotion, the prevention, combating and reduction of unemployment, and reintegration into employment; Inappropriate provisions relating to benefit rates and periods, among others concerning the Minister's power to set/amend the Income Replacement Rate and to vary the benefit period by regulation; Inconsistent and discriminatory provisions requiring a 13-week qualifying period for accessing maternity benefits; Inappropriate provisions regarding dependants' benefits, including the strengthening of the existing claims hierarchy in favour of spouses and life partners at the expense of children; The absence of an independent appeal institution; and Poorly formulated provisions, with evident discord between the provisions of the Bill and the Memorandum settings out its objectives.

The legal position of public sector employees who challenge employment decisions taken by the state or organs of state in its/their capacity as employer in South Africa has long been problematic. Even though at least four judgments by the Constitutional Court of South Africa have considered whether employment-related decisions in the public sector domain do or could amount to administrative action and whether administrative law and/or labour law should be applicable for purposes of dispute resolution, legal uncertainty remains the order of the day due to a combination of factors. The authors assess whether (and to what extent) the rich South African administrative-law jurisprudence remains of importance in relation to the public employment relationship, bearing in mind the applicable legal considerations, including the inter-relatedness, interdependence and indivisibility of the range of applicable fundamental constitutional rights. Considering the debate in other jurisdictions on this issue, the authors develop a paradigm for situating different employment-related disputes as matters to be decided on labour and/or administrative-law principles in South Africa. This requires an appreciation, to the extent relevant, of the unique nature public sector employment relationships and a detailed investigation of the applicable legal sources and precise parameters of the cases already decided in the country. The position of employees deliberately excluded from the scope of labour legislation is analysed, for example, as is the legal position of high-ranking public sector employees. The outcome of the investigation is important for determining the legal principles to be applied in cases involving public sector employees in their employment relationship, and for purposes of determining the question of jurisdiction. Recent cases, for example where the courts have permitted the state, as employer, to review its own disciplinary decision (via a state-appointed chairperson of a disciplinary hearing) on the basis that this amounts to administrative action which is reviewable, are also examined in the light of the uncertainty regarding the precise nature and scope of the review.

The International Social Security Association (ISSA) "Guidelines on Return-to-Work and Reintegration" (the Guidelines) chronicles good practice models, policies and procedures which have successfully been implemented by social security institutions in respect of return-to-work and reintegration. Models have specifically been developed by ISSA in order to identify approaches that will enable decision-makers in social security institutions to benefit from global experience in this area. In particular, the Guidelines are designed to: outline strategic options for social security institutions in order to achieve these outcomes; stimulate discussion around good practice return-to-work programmes for social security institutions; identify critical success design elements; and offer practical implementation tools.Return-to-work of occupationally injured and diseased workers, and the management of their disabilities, is an area clearly in need of reform in the developing world. The proposed contribution focuses on the recent experiences of two middle-to-high income developing countries, namely Malaysia and South Africa, who are at different stages of introducing and implementing detailed return-to-work measures. The paper considers salient aspects of the seven "Specific Return-to-work Principles and Guidelines" (the Specific Guidelines, contained in Part B of the Guidelines) and matches these against the approaches adopted / being adopted by Malaysia and South Africa respectively. This methodology is designed to provide a comparative, context-specific sample of the application of selected issues emerging from the Specific Guidelines in order to provide some pointers for purposes of extrapolating how return-to-work and reintegration might be introduced and implemented in other (middle-to-high income) countries in the developing world.The paper acknowledges the tremendous challenges faced by developing countries in introducing and implementing return-to-work and reintegration arrangements, but focuses instead on the application of Specific Guidelines such as "early intervention" and an "individualized approach" in Malaysia and South Africa. The paper draws on constitutional frameworks, draft and existing legislation, policy statements and judicial precedent in order to demonstrate the extent to which the two countries have already been able to integrate selected best practice principles, which are now contained in the Specific Guidelines, in their respective approaches. The paper accordingly holds the potential to demonstrate that the sentiments contained in the Guidelines are practically implementable and ought, therefore, to be carefully considered and analysed by other countries seeking to introduce similar return-to-work and rehabilitation initiatives.

This contribution examines selected issues from a policy and legal perspective. Against the background of the broader social security reform agenda in South Africa and the vision of a comprehensive social security system, the contribution covers five key areas, namely alignment with international standards; the need to develop synergies with the rest of the social security system and for institutional reform and alignment; addressing certain material deficiencies and inconsistencies in the UIF legislation (with reference to removing the restriction on certain contributors to benefit and redefining the range of dependants); re-aligning the current UIF benefit regime to focus on loss of employment; and improving the UIF benefit regime through the introduction of standardised measures and other reforms (with reference to the indexation of benefits, utilising a minimum wage arrangement as a basis for benefit enhancement, adjusting the contribution rate and developing a streamlined adjudication framework). It is argued that complying with relevant international standards will move South Africa closer to be in a position to ratify these instruments, in particular ILO Convention 102 of 1952 on minimum standards in social security. Ample opportunity exists to introduce streamlined approaches in among others the collection of contributions and shared benefit payment facilities and arrangements, and the harmonisation of benefits. However, particular considerations and substantive constraints define and circumscribe the extent and content of the alignment of the UIF that is currently considered. These relate in particular to the compensation function of the UIF; its role as a labour market instrument; and the need to recognise unemployment insurance as a separate risk category with a ringfenced contribution and benefit regime framework. It should also be considered to separate unemployment insurance benefits in the strict sense of the word (ie benefits accruing to a beneficiary as a result of loss of employment) from unemployment-related benefits such as sickness, maternity and adoption benefits.

The main aim of labour market activation policies is to bring jobless people from unemployment or inactivity into work or, at the very least, to influence the employment prospects of the unemployed positively. Activation schemes typically make benefit receipt conditional upon job search activities, acceptance of available job offers and participation in training activities. This article addresses the appropriate role of the Unemployment Insurance Fund (UIF) in the establishment of activation in South Africa. It focuses on a number of principled and practical considerations and constraints that challenge the use of activation mechanisms, such as the fragmentation of the existing legal and institutional frameworks, the lack of available employment opportunities and human rights considerations. It is argued that the limited and short-term impact of the UIF, its strong labour-market orientation and its inability to appropriately contribute to preventing and combating unemployment or to reintegrate the unemployed into the labour market all point to the urgent need to reform the UIF. The gaps in the current unemployment insurance system are highlighted, as is the need to enhance the relationship between the unemployment insurance system and (appropriate) activation measures. The role of existing social security and employment creation initiatives in this dynamic is also considered. In particular, the absence of a link between those excluded from the UIF and the activation mechanisms introduced by the Skills Development Act 97 of 1998 is underscored. Proposals contained in the Employment Services Bill are also evaluated. It is suggested that an expanded form of employment services provision, incorporating a network of labour centres, ought to receive prioritisation in the South African context. This must be coupled with a move to consolidate the various available governmental databases in terms of which unemployed persons may register as job-seekers. The creation of an enabling framework to achieve such goals would require a variety of legislative changes, some of which are discussed in the article.