Skills Development Act, 1998 (Act No. 97 of 1998)Chapter 4 : Learnerships18. Contract of employment with learner |
| (1) | If a learner was in the employment of the employer party to the learnership agreement concerned when the agreement was concluded, the learner's contract of employment is not affected by the agreement. |
| (2) | If the learner was not in the employment of the employer party to the learnership agreement concerned when the agreement was concluded, the employer and learner must enter into a contract of employment. |
| (3) | The contract of employment with a learner contemplated in subsection (2) is subject to any terms and conditions that may be determined by the Minister on the recommendation of the Employment Conditions Commission established by section 59(1) of the Basic Conditions of Employment Act. |
| (4) | Chapters Eight and Nine1 of the Basic Conditions of Employment Act apply, with the changes required by the context, to a determination made in terms of subsection (3) except that— |
| (a) | for the purposes of section 54(3) of that Act, the Employment Conditions Commission must also consider the likely impact that any proposed condition of employment may have on the employment of learners and the achievement of the purposes of this Act; and |
| (b) | section 55(7) of that Act does not apply. |
| (5) | The contract of employment of a learner may not be terminated before the expiry of the period of duration specified in the learnership agreement unless the learnership agreement is terminated in terms of section 17(4). |
| (6) | The contract of employment of a learner terminates at the expiry of the period of duration specified in the learnership agreement unless the agreement was concluded with a person who was already in the employment of the employer party to the agreement when the agreement was concluded. |
| 1 | Chapters Eight and Nine of the Basic Conditions of Employment Act ("BCEA"), provide for the publication of sector determinations by the Minister on basic conditions of employment on the advice of the Employment Conditions Commission. Before the Commission advises the Minister on the publication of a determination: (a) the Department of Labour conducts an investigation and prepares a report; (b) the Commission then considers the report in the light of a number of factors set out in section 54(3) of the BCEA and in this process may hold public hearings; and then (c) gives its advice in a report to the Minister. The effect of this section is to allow for the setting of terms and conditions of employment for learners in a similar way to the setting of conditions of apprenticeship under the Manpower Training Act, 1981 (Act No. 56 of 1981), in so far as conditions of employment are concerned-see section 13(2)(c) and (k) to (p). The provisions of the BCEA are sufficiently flexible to allow for sector and cross-sector determinations for learnerships |