Elementos de instalaciones de fluidos -Depósitos, tanques y recipientes

The UIA is social security legislation which provides benefits to contributing employees.44 _The UIA states that a female employee may apply for maternity benefits provided that she falls pregnant while contributing to the Unemployment Insurance Fund (the Fund).45 _{Additionally,} any parent who is adopting a child and contributes to the Fund, whether male or female, may claim adoption benefits.46 _{The UIA applies to all employees and employers unless specifically} excluded.47 _{The UIA was recently amended by the Unemployment Insurance Amendment Act 10} of 2016 (UIAA), which amends maternity benefits offered by the UIA.48

According to section 24 of the UIA, a pregnant contributor is entitled to maternity benefits for any period of pregnancy or delivery and the period thereafter, provided that the application complies with prescribed requirements and provisions of the Act.49 _{The UIAA sets out a} qualifying period for the entitlement to maternity benefits.50 _{It states that a contributor is not} entitled to benefits unless she has been in employment for at least thirteen weeks prior to the date of the application for maternity benefits.51 _{The qualifying period is anomalous as there are no}

43 _{Ibid 272; Huysamen (note 3 above) 61; Dupper 2004 (note 32 above) 408.}

44 _{Section 12 of the Unemployment Insurance Act 63 of 2001 (UIA) states that a contributor or a dependant is}

entitled to the following benefits: unemployment benefits (Chapter 3: Part B); illness benefits (Chapter 3: Part C); maternity benefits (Chapter 3: Part D); adoption benefits (Chapter 3: Part E) and dependants benefits (Chapter 3: Part F).

45 _{Bonthuys (note 12 above) 65; Huysamen (note 3 above) 61.} 46 _{Chapter 3: Part D and Part E of the UIA.}

47 _{Section 3 of the UIA. Section 1 of the UIA defines an ‘employee’ as ‘any natural person who receives}

remuneration or to whom remuneration accrues in respect of services rendered or to be rendered by that person, but excludes any independent contractor’.

48_{Unemployment Insurance Amendment Act 10 of 2016 (GG 40557 of 19 January 2016) (UIAA).}

49 _{Section 24(1) of the UIA. The Act defines a ‘contributor’ as ‘a natural person– (a) who is or was employed; (b) to}

whom this Act, in terms of s 3, applies; and (c) who can satisfy the Commissioner that he or she has made contributions for the purposes of this Act’. Dancaster (note 27 above) 183.

50 _{MP Olivier & A Govindjee ‘A critique of the Unemployment Insurance Amendment Bill, 2015’ (2015) 18(7)}

PER/PELJ 2739, 2747.

qualifying requirements for any other category of benefits in the UIA.52 _{In terms of the UIA, a} pregnant contributor is entitled to maternity benefits for the maximum period of 17.32 weeks.53 This corresponds with the employee’s right to claim four months’ maternity leave under section 25 of the BCEA.

The UIAA also amends section 24(5) of the UIA, which states that ‘a contributor who has a miscarriage during the third trimester or bears a still-born child is entitled to a maximum maternity benefit of six weeks after the miscarriage or stillbirth’.54 _{The UIAA extends the} amount of maternity benefits which may be claimed in instances of miscarriages or stillbirths.55 It states that a contributor who has had a miscarriage during the third trimester or bears a still- born child is entitled to full maternity benefits of 17.32 weeks after the miscarriage or stillbirth.56 The UIAA sets out certain amendments to the procedure for the application of maternity benefits. Prior to the amendment, the UIA stated that the application for maternity benefits must be made at least eight weeks prior to childbirth.57 _{The UIAA now provides that the application} for maternity benefits must be made in the prescribed form at an employment office at any time before or after childbirth, provided that the application is made within twelve months after the date of childbirth.58 _{A claims officer will be appointed to investigate the application and upon a} finding of compliance, the claims officer must approve the application, determine the amount of benefits due to the applicant, and stipulate how the benefit will be paid.59 _{Section 26 of the UIA} states that the contributor must be paid at the employment office at which the application was made or any other employment office determined by the applicant at the time of application.60

52 _{Olivier & Govindjee (note 50 above) 2747.}

53 _{Section 24(4) of the UIA; Field, Bagraim & Rycroft (note 2 above) 34; Huysamen (note 3 above) 61; Dancaster}

(note 27 above) 183.

54 _{Section 24(5) of the UIA.}

55 _{Section 9 of the UIAA; Olivier & Govindjee (note 50 above) 2762.}

56 _{Ibid; as explained by Olivier & Govindjee , s 9 of the UIAA incorrectly states ‘17 to 32 weeks’ rather than ‘17.32}

weeks’.

57 _{Section 25(1) of the UIA.} 58 _{Section 10 UIAA.} 59 _{Ibid s 25(3) and (4).} 60 _{Ibid s 26.}

The UIAA states that payment of maternity benefits may not affect the payment of unemployment benefits.61 _{This provision is aimed at ensuring that the number of days of benefits} to which a contributor is entitled will not be reduced by accounting for the claimed maternity benefits.62 _{According to the provision, any other benefits which a contributor may wish to claim} will accrue as indicated by the Act, and the maternity benefit will accrue separately and without deduction.63 _{This separation of maternity benefits from any other benefit in the UIA allows} pregnant contributors to rely fully on the financial support of the Act without discrimination.64 However, this aspect of the UIAA requires clarification.65 _{The provision that the payment of} maternity benefits may not affect the payment of unemployment insurance benefits fails to account expressly for situations where employees have exhausted their unemployment insurance benefits other than maternity benefits and subsequently claim maternity benefits.66 _{The provision} of the UIAA should expressly state that payment of unemployment, illness, and adoption benefits will not reduce the payment of maternity benefits.67

In addition, the UIA states that if maternity benefits have been paid to the contributor in terms of any other law, collective agreement, or contract of employment, the maternity benefit due in terms of the UIA may not be more than the remuneration she would have received had she not been on maternity leave.68 _{This means that the amount of benefits payable in such an instance} cannot exceed the employee’s ordinary remuneration which she would have received had she not needed to take maternity leave.69

The UIA also provides benefits to employees who have lost their employment as a result of pregnancy or circumstances beyond their control. Section 16(1)(ii) states that an unemployed contributor is entitled to unemployment benefits for any period of unemployment lasting more

61 _{Section 5 of the UIAA; MP Olivier & Govindjee (note 50 above) 2761.} 62 _{Section 13(5) of the UIA.}

63 _{The contributor may wish to claim for unemployment benefits, illness benefits, adoption benefits or dependant’s}

benefits in addition to the maternity benefits. Huysamen (note 3 above) 62–63.

64 _{Ibid 63.}

65 _{Olivier & Govindjee (note 50 above) 2762} 66 _{Ibid 2761; s 5 of the UIAA.}

67 _Ibid.

68 _{Section 24(4) of the UIA; Van Kerken & Olivier (note 13 above) 451.} 69 _{Dancaster (note 27 above) 184.}

than fourteen days, if the reason for the unemployment is the dismissal of the contributor in terms of section 186 of the LRA.70 _{Section 186(1)(c) of the LRA states that a dismissal includes} the refusal to allow an employee to resume work upon her return from maternity leave granted under any law, collective agreement, or contract of employment. This section of the LRA seeks to prevent the automatic termination of employment on the basis of absence for reasons related to childbirth. However, these benefits afforded in terms of section 16(1)(ii) will be due only in the instance where the employee was previously employed and is seeking new employment, or is unable to work as a result of pregnancy and has been employed for at least thirteen weeks during the year preceding confinement.71

4.3.1.2 Funding maternity cash benefits

The UIA establishes the Fund, which may be used for the payment of benefits.72 _{The Fund is} financed through contributions made by employers and employees. All employees, as defined by the UIA, are obliged to contribute to the Fund the amount prescribed in the Unemployment

Insurance Contributions Act 4 of 2002 (UICA), with the exception of those employees excluded

from the application of the UIA.73 _{The UICA regulates the Fund and states that ‘every employer} and every employee to whom this Act applies must, on a monthly basis, contribute to the Unemployment Insurance Fund’.74

4.3.1.3 Methods of calculating maternity benefits

The UIA sets out a graduated scale of a contributor’s entitlement to benefits.75 _{This scale of} benefits to which a contributor is entitled varies between lower and higher income contributors, and is based on the remuneration earned prior to the period for which the benefits are being claimed.76 _{The UIA previously provided that the maximum rate of remuneration for a contributor} who earns a lower income is set at 60 per cent, and the rate of remuneration then decreases for

70 _{Section 16(1)(ii) of the UIA.} 71 _{Grogan (note 19 above) 8.} 72 _{Dupper 2004 (note 32 above) 403.}

73 _{Section 3(1)(a)–(e) sets out those employees that are excluded from the application of the UIA.} 74 _{Section 5(1) of the UICA.}

75 _{Schedule 3 of the UIA; Huysamen (note 3 above) 62; Dupper 2006 (note 12 above) 157; as Dupper explains, the}

graduated scale benefits of Schedule 3 of the UIA ‘range from 30,78% of previous earnings for contributors earning R10 000 or more per month, to 58,64% of previous earnings for contributors earning R150 or less per month’.

contributors who earn higher incomes.77 _{However, the UIAA amended this provision to provide} that the maximum rate of maternity benefits claimable is a fixed rate of 66 per cent of any contributor’s remuneration earned, subject to the maximum income threshold for the first 238 days, and the remainder of the days will be paid at a flat rate of twenty per cent.78 _This means that the maximum amount of benefits which are payable is 66 per cent of a contributor’s remuneration earned prior to the period for which the benefits are being claimed.79

A contributor is entitled to receive maternity benefits for a maximum period of 17.32 weeks of maternity leave.80 _{Since the period of 17.32 weeks is a maximum period, the employee will have} to accrue the actual amount of maternity benefits.81 _{As such, the benefits accrue at a daily rate} according to the number of days of remuneration earned by the contributor in employment.82 _The UIAA states that the contributor’s entitlement will accrue at a rate of one day’s benefit for every completed five days of employment as a contributor.83 _{The benefit is subject to a maximum} accrual of 365 days’ benefits in a four-year period immediately preceding the day after the date of ending of the period of employment.84

Although the UIA financially safeguards the employee, the benefits provided are limited.85 _The limitations are primarily due to the restriction on the amount of benefits payable (a maximum of 66 per cent of income) and the period for which the benefits are payable in accordance with the rate of accrual (17.32 weeks per confinement for maternity leave).86 _{The limitation in benefits}

77 _{Section 12(3)(b) of the UIA.}

78 _{Section 4 of the UIAA; Olivier & Govindjee (note 50 above) 2744; Prior to this amendment, s 13 of the UIA}

provided that a contributor was entitled to one day’s benefit for every completed six days of employment as a contributor.The maximum period for which benefits were claimable were 238 days in a four-year period immediately preceding the date of the application for benefits, minus any days of benefits received by the contributor during this period.

79 _{Ibid, Dupper 2004 (note 32 above) 404; Huysamen (note 3 above) 62.}

80 _{Section 13(5) of the UIA; Van Kerken & Olivier (note 13 above) 451; Dupper 2004 (note 32 above) 403;}

Huysamen (note 3 above) 62; Dancaster (note 27 above) 183.

81 _{Olivier & Govindjee (note 50 above) 2744.} 82 _{Dancaster (note 27 above) 183.}

83 _{Section 5 of the UIAA; s 13(3) of the UIA previously stated that the contributor’s entitlement shall accrue at a}

rate of one day’s benefit for every completed six days of employment as a contributor.

84 _{Ibid; Olivier & Govindjee (note 50 above) 2757.} 85 _{Dancaster (note 27 above) 184.}

86 _{UIAA; Huysamen (note 3 above) 65; Dupper 2003 (note 12 above) 404; Olivier & Govindjee (note 50 above)}

results in a limitation in protection for employees. Considering the lack of statutory duty on an employer to provide paid maternity leave, in the event of claiming unpaid maternity leave, the only income available to the employee during maternity leave is that which is claimable from the UIA.87 _{The maximum amount of benefits claimable is 66 per cent of the employee’s income for} the first 238 days, and thereafter at a flat rate of twenty per cent.88 _{The flat rate of twenty per} cent is too low. Furthermore, the UIA and the UIAA fail to provide a minimum period for which maternity benefits may be claimed.89 _{These factors may force the employee on maternity leave to} return to work prematurely in order to earn her full salary, before she is physically and emotionally prepared to leave her baby and return to her workplace responsibilities.90

4.4 Eligibility for and exclusions from maternity leave and cash benefits