Learnership agreements are governed by the Skills Development Act 97 of 1998 (SDA) read with the Basic Conditions of Employment Act 75 of 1997 – Sectoral Determination 5. Section 16 of the SDA defines “learnerships” as a structured learning programme consisting of a theoretical and practical component that leads to a qualification registered on the National Qualifications Framework (NQF).
As indicated by Section 17 of the SDA, a learnership is regulated by a limited-duration contract (learnership agreement) between an employer, a learner (the employee), and an accredited training provider, which obliges an employer to employ a learner for a specified period, provide the learner with specified practical experience and release the learner to attend specified training and education as detailed in the learnership agreement. The learnership agreement remains in force for the duration of the learnership program. When the learnership is completed between the employer and learner, it must be registered with the relevant Sectoral Education Training Authority (SETA).
Terminating a learnership contract is permissible under conditions like program completion, expiry of the duration, mutual agreement, or fair dismissal for misconduct or incapacity. In addition, any dispute regarding the termination of a learnership agreement may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). This is similar to the provisions of the Labour Relations Act (LRA) in that it provides that the CCMA must first attempt to resolve the dispute through conciliation. If the dispute cannot be resolved through conciliation, any party to the dispute may refer the matter to arbitration. The Sectoral Determination prescribes that upon termination, the learner is entitled to all statutory money owed in terms of provisions of the Sectoral Determination and a certificate of service which sets out:
- The learner’s full particulars.
- The description of the SETA under which the learnership was registered.
- The commencement and end date of the learnership contract.
- A description of the training and practical experience the learner had received.
- The remuneration received by the learner.
In addition to the learnership agreement, Section 18(2) of the SDA prescribes that if the learner was not already in the employment of the employer party prior to the learnership agreement, then the employer and learner must enter into a contract of employment, which would define the nature of the employment relationship between the parties and regulate the manner in which the learner obtains qualifications through work-based practical experience and learning programs.
Failure to conclude a contract of employment in addition to a learnership agreement may result in a dispute regarding the status of a person who had concluded a learnership agreement in terms of the SDA and the ability of that person to refer a dispute to the CCMA. Should an employee wish to rely on a right conferred by the LRA, they would have to establish that they were an employee as defined in the LRA. Where no employment contract has been concluded, the Labour Court would not have jurisdiction to consider the dispute in terms of the LRA because there is no employment relationship between the employee and the employer.
Article by Hemanth Haricharan
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)