Connecticut, US
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| Cherilyn Milner

Are Your Employee Files Up to Date?

Have you taken note that the Department of Labour (DoL) in South Africa have deployed approximately 500 extra labour inspectors in Johannesburg alone to conduct inspections of companies? Coupled with this, the Department of Home Affairs (DHA) also recently pronounced that ‘2017 is the year of inspection’. Therefore, companies need to be compliant when it comes to labour and immigration regulations and best practice.
 
We are recently seeing that companies and schools in South Africa are reporting that they are being audited for compliance with regards to labour and immigration practices. It is, therefore, essential that companies hold the relevant information for all employees on record. Gone are the days where businesses could provide the inspectors with the 5 ‘perfect’ files kept aside for this specific reason. Government inspectors reserve the right to choose which files they inspect.
 
When inspecting, which they can do at any reasonable time, they can request to look at any documents that relate to employment laws. Usually, the following documents are looked at first: 
 
1. Displaying Summaries of Acts
 
Not displaying summaries of the Employment Equity Act and the Basic Conditions of Employment Act in the workplace is punishable by law. The Labour Inspector can order the business to cease operating immediately. 
 
2. Basic Conditions of Employment Act (BCEA) Requirements
 
Every employee file needs to have basic employment information as required by Sections 29 and 31 of the BCEA. For example (but not limited to) name, occupation, working hours, remuneration, and date of birth.
 
It is also recommended that businesses keep written particulars of employment on file from day one of an employee’s employment. A CV/resume, application form, documents related to loans/money, disciplinary records, resignation and termination letters are also recommended to be kept in the employee’s file.
 
All information is required to be kept on record for three years after the last entry into the employees’ employment file. 
 
3. Employment Equity Act (EEA) Requirements
 
Organisations are required to prove that they are complying with EEA at least in terms of proof of nationality as well as equal pay for work of equal value:
 
  • Every organisation whether they are a designated employer or not should have a copy of every employee's ID/Passport and EEA1 Form readily available. This is also a compliance requirement with regards to the Immigration Act.
  • Organisations should also ensure that they have records regarding remuneration. For example, when and how employees are paid, the currency they are paid in and that they have been paid on time. 
 
4. Compensation of Occupational Injuries and Disease Act (COIDA) and Unemployment Insurance Fund (UIF)
 
Organisations are required to possess a valid letter of good standing and businesses are registered with COIDA. Organisations also need to prove that they are contributing to the UIF for all their employees. 
 
5. Immigration Act Requirements
 
Businesses seeking to employ foreign nationals in South Africa, need to be aware of the Immigration Act 13 of 2002, as amended, and the Employment Services Act 4 of 2014 (ESA).
 
A duty is placed on the employer to make an effort, in good faith, to ensure that no illegal foreigner is employed by it and to ascertain the status of nationality of the persons it employs. The law also clearly places the onus on the employer to comply with the relevant legislation(s) and holds the employer liable for non compliance.
 
Organisations are required to ensure that every employee (except independent contractors) who receives or is entitled to receive remuneration has the right to work and live in South Africa in the correct capacity for the job they are doing in order to meet labour and immigration compliance requirements.  
 
In order to ensure compliance, each foreign national file should include copies of a valid work visa and passport, which should be readily available for government inspectors to review. It is also advisable to have a valid Skills Transfer Plan.
 
For those employers that employ foreign nationals and are uncertain whether they have valid documentation, please be prepared:
 
  • To seek professional and reliable advice from a reputable immigration service provider.
  • Be well informed and educate yourself regarding immigration regulations and anticipated changes in order to determine the most compliant and best case scenario based on your needs and requirements within your organisation.
 
For any assistance or advice email us on africainfo@fragomen.com.