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All work but no pay

24 January 2012

The Labour Market is unable to absorb most or all newly qualified work seekers and matriculants are flooding universities who can’t accommodate them. This is according to Faan Coetzee, a Director in the Employment practice at Cliffe Dekker Hofmeyr business law firm, who further notes that a relatively small number will also end up in the training programmes funded by Setas and others may be contemplating working for free to obtain suitable experience to rely on to progress to a duly paid position.

“The Honourable Minister of Education announced an investigation into whether some of the R10 billion in the hands of Setas can’t be used for tertiary education of some form or other. This makes one wonder why there is so much money lying around instead of being used to train unemployed persons in much-needed skills,” Coetzee says.

“However, matriculants should bear in mind that it is permissible to work for free to obtain much needed experience to become a sought-after paid employee. Provided the candidate does so of his or her own free will, it does not constitute slavery or forced labour - both prohibited by the Constitution and the Basic Conditions of Employment Act.

In Joseph vs. Brothers Beds and Bedding CC it was noted that, “Forced labour in the general sense means that the person is held like a prisoner in chains and forced to work, usually for no remuneration.”

Coetzee explains that to a large extent, wages are regulated by Bargaining Council Agreements, Sectoral Determinations or Collective Agreements between unions and employers.

“In order to escape the chains of regulated remuneration, it is advisable rather to take such a willing candidate on as a trainee instead as an employee,” he advises.

“Even so, the presumptions in Section 200A of the LRA may result in the trainee being regarded as an employee.

“Employers who wish to assist candidates to acquire experience and training are best advised to structure the training programme properly, enquire as to whether funding is available to assist with the costs of training and to some extent still run the risk that the trainees may claim to be employees, whether receiving a bursary or grant from the employer or from elsewhere,” he adds

This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. Cliffe Dekker Hofmeyr is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website.

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