Employment Conditions

8/8/2019 Employment Conditions

1/7

1. Title of the Act:

Basic Conditions of Employment Act, 1997

2. Last amendment date

2002

3. Date of summary

March 2005

4. Purpose

To give effect to the right to fair labour practices referred to in section 23(1) of the

Constitution by establishing and making provision for the regulation of basic

conditions of employment; and thereby to comply with the obligations of the Republicas a member state of the International Labour Organisation; and to provide for matters

connected therewith.

5. Overview

A basic condition of employment constitutes a term of any contract of employment

except to the extent that:

Any other law provides a term that is more favourable to the employee;

The basic condition of employment has been replaced, varied, or excludedin accordance with the provisions of this Act; or

A term of the contract of employment is more favourable to the employeethan the basic condition of employment.

The Act and anything done in terms of it takes precedence over any agreement,

whether entered into before or after the commencement of the Act

Chapter 2:

Regulation of working time: In terms of section 7, which applies to all employees,

employers must regulate the working time of each employee:

In accordance with the provision of any Act governing occupational healthand safety;

With due regard to the health and safety of employees; With due regard to the Code of Good Practice on the Regulation of

working time which was issued by the Minister;

With due regard to the family responsibilities of employees.The rest of the provisions of this chapter do not apply to senior managerial employees,

sales staff who visit the premises of customers and who regulate their own hours of

work, and employees who work for less than 24 hours per month.

1


2/7


3/7

Chapter 3 - Leave

This chapter does not apply to employees who work less than 24 hours per month.

Annual leave: The Act stipulates annual leave to be at least 21 consecutive days (15

working days) per annual leave cycle. This may be varied by agreement and be

calculated at 1 days leave for every 17 days worked, or one hours leave for every 17hours worked. Leave must be taken within 6 months of it becoming due.

Sick leave: This is granted within a 36 month cycle and entitlement is dependent on

the number of days an employee would normally work within a 6 week period. The

Act limits sick leave within the first 6 months of employment and also stipulates when

a sick note is necessary in order to prove incapacity.

Maternity leave: An employee is entitled to at least 4 consecutive months maternity

leave and the Act stipulates when this may start and end. An employee may not work

for 6 weeks after the birth of a child, unless a doctor or midwife certifies that she is fit

to do so. In the case of a miscarriage or stillbirth, the employee is also entitled to 6weeks maternity leave following the event.

Protection of employees before and after birth: This section makes provision for the

protection of a woman who is either pregnant or is nursing a child in terms of work

that may be hazardous to either her or her child.

Family responsibility leave: This is granted to employees who have been in

employment for at least 4 months and who work at least 4 days per week. The Act sets

out the circumstances when such leave may be taken and limits it to three days per

annual leave cycle.

Chapter 4 Particulars of employment and remuneration

This chapter sets out the information that must be provided to an employee in writing

and is applicable for all employees who work more than 24 hours per month. Included

in these particulars of employment are factors such as leave entitlement and rate of

pay. In all, the Act stipulates 16 particulars which must be provided.

An employer must also display a statement of the employees rights in terms of the

Act, in the required form, in the workplace where it is accessible to the workers.

The Act specifies how and where employees may be remunerated as well as how the

remuneration should be calculated.

Various information must also be given to the employee in writing on each day that

the employee is paid. Such information includes, inter alia, issues such as the number

of hours worked, the amount paid to the employee, and the employers details.

Deductions are forbidden unless the employees agrees in writing to such deduction or

a law, collective agreement, court order or arbitration award, requires or permits such

deduction. Provision is made for circumstance when deductions may be made loss or

damage caused by the employee.

3


4/7

Chapter 5: Termination of employment

Notice periods are determined by the amount of time an employee has been working

for the employer. Collective agreements may provide for shorter periods, within

certain parameters. Payment in lieu of notice may be made.

For employees dismissed for operational requirements, severance pay must be equal toat least one weeks remuneration for each completed year of continuous service with

the employer. Operational requirements is defined as requirements based on the

economic, technological, structural or similar needs of an employer.

An employee who unreasonably refuses to accept the employers offer of alternative

employment with the employer or any other employer, is not entitled to severance pay

in terms of the Act.

On termination the employee is entitled to a certificate of service and if so requested,

the reasons for termination.

Chapter 6: Prohibition of employment of children and forced labour

Children under 15 years of age, or under the minimum school leaving age if this is 15

or older, may not be employed. In addition a child may not be employed in work that

is inappropriate for the childs age, or work which puts at risk the childs well-being,

education, physical or mental health, or spiritual, moral or social development.

The Minister may, on the advice of the commission, make regulations to prohibit or

place conditions on the employment of children who are 15 years of age and no longer

subject to compulsory schooling in terms of any law.

All forced labour, subject to the Constitution, is prohibited.

Chapter 7: Variation of Basic Conditions of Employment

Basic conditions may be varied by collective agreement concluded in a bargaining

council subject to the proviso that certain minimum standards and rights may not be

altered. The Minister may also make determinations to replace or exclude any basic

condition in the Act in respect of categories of employers or employees or any

employer or employee on application. Basic conditions which cannot be affected by

such a determination are those which concern hours of work and the employment of

children, although children may be allowed to perform in advertising, sports, artistic or

cultural activities.Any determination must be made on the advice of the Employment Conditions

Commission and must be published in the Government Gazette.

Chapter 8: Sectoral determinations

The Minister may make Sectoral Determinations to establish basic conditions of

employment for employees in a sector and area. Before doing so the Minister must

direct the Director-General to investigate conditions of employment in the sector and

area concerned. Employers organisations and trade unions can also request the

Minister to investigate conditions of employment in their sector or area. After

investigation, the Director- General must submit a report to the EmploymentConditions Commission which will then consider the report and advise the Minister on

publication of a Sectoral Determination.

4


5/7

The chapter sets out various issues which the Commission must consider when

advising the Minister and also stipulates what a determination may specify or vary. It

also forbids a determination to be made in certain situations such as covering

employees or employers who are bound by a collective agreement made in a

bargaining council.

Chapter 9: Employment Conditions Commission

The Act sets out the composition of the commission, whose functions are to advise the

Minister:

on sectoral determinations; on any matter concerning basic conditions of employment; on any matter arising out of the Act; on the effect of government employment policies; on trends in collective bargaining and whether any of those trends

undermine the purpose of the Act;

(the Minister of Welfare and Population development) on any matterconcerning the employment of children;

(the Minister of Public Service and Administration) on any matterconcerning basic conditions of employment in the public service.

Chapter 10: Monitoring enforcement and legal proceedings

The Minister may appoint labour inspectors whose functions are to:

advise employees and employers of their rights and obligations in terms ofan employment law;

conduct inspections in terms of this Chapter; investigate complaints made to a labour inspector; endeavor to secure compliance with an employment law by securing

undertakings or issuing compliance orders; and

perform any other prescribed function.The chapter covers the inspectors powers of entry to the workplace, powers to

question and inspect, to secure a written undertaking to comply and ultimately to issue

a compliance order against an employer. Certain limitations are imposed on the issuing

of a compliance order. Further, objections may be made against compliance orders and

appeals may ultimately be made to the Labour Court. Compliance orders may also be

made an order of the court.

Part C of the chapter sets out the protection of employees against discrimination. In

this regard an employee includes a former employee or applicant for employment. A

bargaining council or the CCMA has jurisdiction to conciliate a dispute concerning the

interpretation or application of this Chapter. Should the matter not be resolved at this

level, then any party may refer it to the Labour Court for adjudication.

Chapter 11: General

Temporary employment services: A person whose services have been procured for, or

provided to, a client by a temporary employment service is the employee of the

temporary employment service. The temporary employment service and the client are

5


6/7


7/7

6. Implications for Affected Parties

Clearly the employment conditions as set out in the Act bind both the employer and

employee. Both would be well advised to have a good understanding of their

obligations in this regard.The minimum conditions may be improved upon by agreement between the parties.

The Minister is bound by the Act to make Codes of Good Practice, Sectoral

Determinations and Determinations on the advice of the Employment Conditions

Commission.

Liability

Liability attaches to employers and employees.

Risk

Non compliance poses a very real risk to employers in that there is an expedient and

inexpensive (free) recourse to employees in the form of the Commission for

Conciliation, Mediation and Arbitration and the Department of Labour. There is a very

real risk of financial costs and/or ultimately, imprisonment.

Cost

The fines for non compliance can be severe depending on the type of infringement.

The minimum wages for the different sectors will also have an impact for employers.

Resources

It has become essential for all companies to have some form of access to a specialist

who is familiar with this legislation and its principles.

7

Documents

Employment Conditions