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(Information taken from
www.labour.gov.za)
BASIC CONDITIONS OF EMPLOYMENT ACT, 1997
SUMMARY TO BE KEPT BY AN EMPLOYER IN TERMS OF
SECTION 30
The following is a summary of the provisions of the
most important sections of the Basic Conditions of Employment Act,
1997, as amended.
APPLICATION OF THE ACT : SECTION 3
The Act applies to all employees and employers
except members of the National Defence Force, National Intelligence
Agency, South African Secret Service and unpaid volunteers working
for an organisation with a charitable purpose.
The basic conditions of employment contained in the
Act form part of the contract of employment of employees covered by
the Act. Some, but not all, basic conditions of employment may be
varied by individual or collective agreements in accordance with the
provisions of the Act. (see paragraph 7 below).
REGULATION OF WORKING TIME : CHAPTER TWO
2.1 Application
This chapter does not apply to senior managerial
employees, employees engaged as sales staff who travel and employees
who work less than 24 hours a month.
2.2 Ordinary hours of work : Section 9
No employer shall require or permit an employee to
work more than
45 hours in any week;
nine hours in any day if an employee works for five
days or less in a week; or
eight hours in any day if an employee works on more
than five days in a week.
2.3 Overtime : Section 10
2.3.1
An employer may not require or permit an employee
to work overtime except by an agreement;
to work more than ten hours’ overtime a week.
2.3.2 An agreement may not require or permit an
employee to work more than 12 hours on any day.
2.3.3 A collective agreement may increase overtime
to fifteen hours per week for up to two months in any period of 12
months.
2.3.4 Overtime must be paid at 1.5 times the
employee’s normal wage or an employee may agree to receive paid time
off.
2.4 Compressed working week : Section 11
2.4.1 An employee may agree in writing to work up
to 12 hours in a day without receiving overtime pay.
2.4.2 This agreement may not require or permit an employee to
work
more than 45 ordinary hours in any week;
more than ten hours’ overtime in any week; or
more than five days in any
week.
2.5 Averaging of hours of work : Section 12
2.5.1 A collective agreement may permit the hours
of work to be averaged over a period of up to four months.
2.5.2
An employee who is bound by such a collective agreement may
not work more than
an average of 45 ordinary hours in a week over the
agreed period;
an average of five hours’ overtime in a week over
the agreed period.
2.6 Meal intervals : Section 14
2.6.1 An employee must have a meal interval of 60
minutes after five hours work.
2.6.2 A written agreement may
reduce the meal interval to 30 minutes;
dispense with the meal interval for employees who
work fewer than six hours on a day.
2.7 Daily and weekly rest period : Section 15
An employee must have a daily rest period of 12
consecutive hours and a weekly rest period of 36 consecutive hours,
which, unless otherwise agreed, must include Sunday.
2.8 Pay for work on Sundays : Section 16
2.8.1 An employee who occasionally works on a
Sunday must receive double pay.
2.8.2 An employee who ordinarily works on a Sunday
must be paid at 1.5 times the normal wage.
2.8.3 Paid time off in return for working on a Sunday may be agreed
upon.
2.9 Night work : Section 17
2.9.1 Employees who work at night between 18h00 and
06h00 must be compensated by payment of an allowance or by a
reduction of working hours and transport must be available.
2.9.2 Employees who work regularly after 23:00 and
before 06:00 the next day must be informed
of any health and safety hazards; and
the right to undergo a medical examination.
2.10 Public holidays : Section 18
2.10.1 Employees must be paid their ordinary pay for any public
holiday that falls on a working day.
2.10.2 Work on a public holiday is by agreement and
paid at double the rate.
2.10.3 A public holiday may be exchanged with another day by
agreement.
3. LEAVE : CHAPTER THREE
3.1 Application
The chapter on leave does not apply to an employee
who works less than 24 hours a month for an employer and to leave
granted in excess of the leave entitlement under this chapter.
3.2 Annual leave : Sections 20 & 21
3.2.1 Employees are entitled to 21 consecutive
days’ annual leave or by agreement, one day for every 17 days worked
or one hour for every 17 hours worked.
3.2.2 Leave must be granted not later than six months after the end
of the annual cycle.
3.2.3 An employer must not pay an employee instead
of granting leave except on termination of employment.
3.3 Sick leave : Sections 22 – 24
3.3.1 An employee is entitled to six weeks’ paid sick leave in a
period of 36 months.
3.3.2 During the first six months an employee is
entitled to one day’s paid sick leave for every 26 days worked.
3.3.3 An employer may require a medical certificate
before paying an employee who is absent for more than two
consecutive days or who is frequently absent.
3.4 Maternity leave : Sections 25 & 26
3.4.1 A pregnant employee is entitled to four
consecutive months’ maternity leave.
3.4.2 A pregnant employee or employee nursing her
child is not allowed to perform work that is hazardous to her or her
child.
3.5 Family responsibility leave : Section
27
3.5.1 Full time employees are entitled to three
days paid family responsibility leave per year, on request, when the
employee’s child is born or sick, or in the event of the death of
the employee’s spouse or life partner, or the employee’s parent,
adoptive parent, grandparent, child, adopted child, grandchild or
sibling.
3.5.2 An employer may require reasonable proof.
4. PARTICULARS OF EMPLOYMENT AND REMUNERATION :
CHAPTER FOUR
4.1 Application
This chapter does not apply to an employee who
works less than 24 hours a month for an employer.
4.2 Written particulars of employment : Section
29
4.2.1 An employer must supply an employee when the
employee commences employment, with the following particulars in
writing:
full name and address of the employer;
name and occupation of the employee, or a brief
description of the work ;
various places of work;
date of employment;
ordinary hours of work and days of work;
wage or the rate and method of calculating;
rate for overtime work;
any other cash payments;
any payment in kind and the value thereof;
frequency of remuneration;
Any deductions;
leave entitlement;
period of notice or period of contract;
description of any council or sectoral
determination which covers the employer’s business;
period of employment with a previous employer that
counts towards the period of employment;
list of any other documents that form part of the
contract, indicating a place where a copy of each may be
obtained.
4.2.2 Particulars must be revised if the terms of employment
change.
4.3 Informing employees of their rights : Section
30
A statement of employees’ rights must be displayed
at the workplace in official languages used at the workplace.
4.4 Keeping of records : Section 31
Every employer must keep a record containing the
following information:
employee’s name and occupation;
time worked;
remuneration paid;
date of birth if under 18 years of age; and
any other prescribed information.
4.5 Information about remuneration : Section 33
The following information must be given in writing
when the employee is paid:
employer’s name and address;
employee’s name and occupation;
period of payment;
remuneration in money;
any deduction made from the remuneration;
the actual amount paid; and
if relevant to the calculation of that employee’s
remuneration-
employee’s rate of remuneration and overtime
rate;
(ii) number of ordinary and overtime hours worked
during the period of payment;
number of hours worked on a Sunday or public
holiday during that period; and
if an agreement to average working time has been
concluded, the total number of ordinary and overtime hours worked in
the period of averaging.
4.6 Deductions and other acts concerning
remuneration : Sections 34 and 34A
4.6.1
An employer may not deduct money from an employee’s remuneration
unless –
(a) The employee agrees in writing to the deduction
of a specific debt;
(b) The deduction is made in terms of a collective
agreement, law, court order or arbitration award
4.6.2 A deduction in respect of damage or loss
caused by the employee may only be made with agreement and after the
employer has followed a fair procedure
4.6.3 Employers must pay deductions and employer
contributions to benefit funds to the fund within seven days.
4.7 Calculation of remuneration and wages : Section
35
4.7.1 Wages are calculated by the number of hours ordinarily
worked.
4.7.2 Monthly remuneration or wage is four and
one-third times the weekly wage.
4.7.3 If calculated on a basis other than time, or
if the employee’s remuneration or wage fluctuates significantly from
period to period, any payment must be calculated by reference to
remuneration or wage during
(a) the preceding 13 weeks; or
(b)if employed for a shorter period, that period.
4.7.4 Employers and employees should consult a
schedule published in the Government Gazette to determine whether a
particular category of payment forms part of an employee’s
remuneration for the purpose of calculations made in terms of this
Act.
5. TERMINATION OF EMPLOYMENT : CHAPTER FIVE
5.1 Application
This chapter does not apply to an employee who
works less than 24 hours in a month for an employer.
5.2 Notice of termination of employment : Section
37
5.2.1 A contract of employment may be terminated on
notice of not less than
one week, if the employee has been employed for six
months or less;
two weeks, if the employee has been employed for
more than six months but not more than one year;
four weeks, if the employee has been employed for
one year or more, or if a farm worker or domestic worker has been
employed for more than six months.
5.2.2 A collective agreement may shorten the four
weeks notice period to not less than two weeks.
5.2.3 Notice must be given in writing except when it is given by an
illiterate employee.
5.2.4 The notice on termination of employment by an
employer in terms of the Act does not prevent the employee
challenging the fairness or lawfulness of the dismissal in terms of
the Labour Relations Act, 1995 or any other law.
5.3 Severance pay : Section 41
An employee dismissed for operational requirements
or whose contract of employment is terminated in terms of section 38
of the Insolvency Act, 1936 is entitled to one week’s severance pay
for every year of service.
5.4 Certificate of Service : Section 42
On termination of employment an employee is
entitled to a certificate of service.
6. PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED
LABOUR : SECTIONS 43 – 48
6.1 It is a criminal offence to employ a child
under 15 years of age.
6.2 Children under 18 may not be employed to
do work inappropriate for their age or that places them at risk.
6.3 Causing, demanding or requiring forced labour
is a criminal offence.
7. VARIATION OF BASIC CONDITIONS OF EMPLOYMENT :
SECTIONS 49 – 50
7.1 A collective agreement concluded by a
bargaining council may replace or exclude any basic condition of
employment except the following:
the duty to arrange working time with regard to the
health and safety and family responsibility of employees (S.7,9 and
13);
reduce the protection afforded to employees who
perform night work(S. 17(3) and (4));
reduce annual leave to less than two weeks (S.
20);
reduce entitlement to maternity leave (S 25);
reduce entitlement to sick leave to the extent
permitted (S. 22-24); and
prohibition of child and forced labour (S.48).
7.2 Collective agreements and individual agreements
may only replace or exclude basic conditions of employment to the
extent permitted by the Act or a sectoral determination (S.49).
7.3 The Minister of Labour may make a determination
to vary or exclude a basic condition of employment. This can also be
done on application by an employer or employer organisation (S. 50).
7.4 A determination may not be granted unless a
trade union representing the employees has consented to the
variation or has had the opportunity to make representations to the
Minister. A copy of any determination must be displayed by the
employer at the work place and must be made available to employee’s
(S.50).
8. SECTORAL DETERMINATIONS : SECTION 51
Sectoral determinations may be made to establish
basic conditions for employees in a sector and area.
9. MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS : SECTIONS 63 –
81
9.1 Labour inspectors must advise employees and
employers on their rights and obligations in terms of employment
laws. They conduct inspections, investigate complaints and may
question persons and inspect, copy and remove records and other
relevant documents (S. 64 – 66).
9.2 An inspector may serve a compliance order on an
employer who is not complying with a provision of the Act. The
employer may object against the order to the Director-General:
Labour, who after receiving representations, may confirm, modify or
set aside an order. This decision is subject to appeal to the Labour
Court (S. 68 – 73).
9.3 Employees may not be discriminated against for
exercising their rights in terms of the Act (S. 78 – 81).
PRESUMPTION AS TO WHO IS AN EMPLOYEE : SECTION
83A
10.1 A person who works for, or provides services
to, another person is presumed to be an employee if –
his or her manner or hours of work are subject to
control or direction;
he or she forms part of the employer’s
organisation;
he or she has worked for the other person for at
least 40 hours per month over the previous three months;
he or she is economically dependant on the other
person;
he or she is provided with his or her tools or work
equipment; or
he or she only works for, or renders service to,
one person.
10.2 If one of these factors is present, the person
is presumed to be an employee until the employer proves that he or
she is not.
11. GENERAL
It is an offence to
obstruct or attempt to influence improperly a
person who is performing a function in terms of the Act;
obtain or attempt to obtain any prescribed document
by means of fraud, false pretences, or by presenting or submitting a
false or forged document;
pretend to be a labour inspector or any other
person performing a function in terms of the Act;
refuse or fail to answer fully any lawful question
put by a labour inspector or any other person performing a function
in terms of the Act;
refuse or fail to comply with any lawful request
of, or lawful order by, a labour inspector or any other person
performing a function in terms of the Act;
hinder or obstruct a labour inspector or any other
person performing a function in terms of the Act.
(S.
92) | 
