Section 4 – Learnership

A SETA may establish a learnership if-

• The learnership consists of a structured learning component; the learnership includes practical work experience of a specified nature and duration;
• The learnership would lead to a qualification registered by the South African Qualifications Authority and related to an occupation; and
•   The intended learnership is registered with the Director-General in the prescribed manner.

(14)  Learnership agreements.

(1)   For the purposes of this Chapter, a “learnership agreement” means an agreement entered into for a specified period between-

• a Learner;
• An employer or a group of employers (in this section referred to as “the employer”); and
• a Training provider accredited by a body contemplated in section 5 (1) (a) (ii) (bb) of the South African Qualifications Authority Act or group of such training providers.

(2)   The terms of a learnership agreement must oblige-

The employer to-

• Employ the learner for the period specified in the agreement;
• Provide the learner with the specified practical work experience; and
• release the learner to attend the education and training specified in the agreement; the learner to-

–     Work for the employer; and

–     Attend the specified education and training; and

• The training provider to provide—

–     The education and training specified in the agreement; and

–     The learner support specified in the agreement.

(3)   A learnership agreement must be in the prescribed form and registered with a SETA in the prescribed manner.

(4)   A learnership agreement may not be terminated before the expiry of the period of duration specified in the agreement unless-

• The learner meets the requirements for the successful completion of the learnership;
• The SETA which registered the agreement approves of such termination; or
• The learner is fairly dismissed for a reason related to the learner’s conduct or capacity as an employee.

(5)   The employer or training provider that is party to a learnership agreement may be substituted with-

• The consent of the learner; and
• The approval of the SETA which registered the agreement.

(6)   A SETA must, in the prescribed manner, provide the Director-General with a record of learnership agreements registered by the SETA.

(15)   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-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 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.

(16)   Disputes about learnerships.

(1)   For the purposes of this section a “dispute” means a dispute about-

• the interpretation or application of any provision of-

–        a learnership agreement;

–        (a contract of employment of a learner; or

–        a determination made in terms of section 18 (3);

–        this Chapter; or

–        the termination of a learnership agreement; or

–        a contract of employment of a learner.

(2)   Any party to a dispute may in writing refer the dispute to the Commission for Conciliation, Mediation and Arbitration established by section 112 of the Labour Relations Act, 1995 (Act No. 66 of 1995).

(3)   The party who so refers the dispute must satisfy that Commission that a copy of the referral has been served on all the other parties to the dispute.

(4)   The Commission must attempt to resolve the dispute through conciliation.

(5)   If the dispute remains unresolved, any party may request that the dispute be resolved through arbitration as soon as possible.

(6)   The law that applies to the lawfulness2 and fairness3 of a dismissal for a reason related to an employee’s capacity or conduct applies to a dispute contemplated in subsection (1) (c) (ii).