The short answer
If the firm has a payroll of over R500,000, then they must register with SETA and provide learnerships.
The whole question
I have three years of practical experience in Solar And IT. I need a salary increase but my employer will not allow me to get the required documents to take a trade test and get proof that I can do my trade. What can I do?
The long answer
The National Skills Development Act of 1999 (as amended) lays down that all employers who are registered with SARS and whose payroll is over R500,000 annually have to pay the skills development levy to SARS, which is 1% of the payroll. They also have to register with whichever Sector Training Authority (SETA) applies to them. There are about 21 SETAs currently.
SARS then puts these levies into a special fund, where 20% goes to the National Skills Fund to fund skills development not covered by the SETAs. The Business Optimisation Training Institute says that the remaining 80% of the levies are distributed as follows:
10% for organisational expenses of the SETA;
50% as grants to businesses for providing workplace skills development training (learnership), and for planning and implementation of reports by SETA;
20% goes to the SETAs that are responsible for providing learnerships and other skills.
The SETAs must establish learnerships that have a structured learning programme as well as a specific practical work experience that goes on for a specific amount of time. That learnership must lead to a qualification that is recognised by the South African Qualifications Authority (SAQA).
The Consolidated Employers Organisation of South Africa said in 2020: "The Act (the National Skills Development Act) should not be viewed as yet another piece of legislation which places an administrative burden on the employer, but rather as a means to assist employees in reaching their full potential within the workplace and to encourage sustainability and growth."
So the first question is whether you are employed by a firm that has a payroll over R500,000, and if so, is obliged to pay the skills levy and register with the applicable SETAs.
I will set down the steps you can take to apply for a trade test on your own initiative, if you have to, but first let’s look at what labour law and the Constitution say about fair labour practices.
Section 23 of the Constitution says: "Everyone has the right to fair labour practices." Section 185 (b) of the Labour Relations Act 66 of 1995 (LRA) says that every employee has the right not to be subjected to an unfair labour practice.
In Section 186(2) of the LRA, it says that an unfair labour practice means "any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee."
An unfair labour practice can be taken to the CCMA (the Commission for Conciliation, Mediation and Arbitration). The onus would be on you to prove that the employer was unfairly discriminating against you by refusing to allow you to take a trade test so that you are not able to prove your abilities. The employer would be entitled to respond and if the employer could not prove that he had a legitimate reason for this refusal, the CCMA could find that it was an unfair labour practice and make an appropriate order.
If you do not have any formal training or qualifications, you can apply for Artisan Recognition of Prior Learning (ARPL). You would have to apply to undergo an ARPL process at an accredited Trade Test Centre, which is accredited for the trade for which you are applying.
These are the steps:
Completing a standard application form provided by the ARPL toolkit for the specific trade for which you are applying;
You must have accumulated at least three years’ relevant work experience;
The employer/s he cites must be traceable.
The next step in the ARPL process is to submit a portfolio of evidence: what is needed for this portfolio can be established by the relevant SETA.
Then there is an interview with an assessor.
Finally, there is a practical test. If the assessor finds any gaps in knowledge, these must be remedied by study or training, before the ARPL process can be successfully completed. A Statement of Results must be obtained.
Then you would be able to apply to do the trade test. The body that oversees all the trade tests is the National Artisan Moderation Body (NAMB). All the assessors and moderators conducting trade tests have to be registered by NAMB.
You must then apply at an accredited Trade Test Centre to take the trade test. For this, you will need a NAMB application form and proof that you have all the requirements to take the test. If you take the test successfully, the relevant SETA and National Artisan Development (INDLELA) Chief Directorate will send the results and supporting documentation to NAMB to recommend that you get the Trade Certificate under section 26D (4) of the Skills Development Act.
Every step of this process to obtain a Trade Certificate will have its own fee which the relevant SETA can tell you. In Cape Town the "all-inclusive" cost is R14,500 while in Pretoria it is R12,500.
Perhaps you should approach your employer once more and ask for support in your efforts to successfully complete the ARPL process which will qualify you to take the trade test. There should be no legitimate reason for the employer to refuse such a request.
Wishing you the best,
Answered on Oct. 25, 2022, 11:19 a.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.