Basic Conditions of Employment Act, 1997 by monkey6

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Title of the Act:
Basic Conditions of Employment Act, 1997

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Last amendment date
2002

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Date of summary
March 2005

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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 Republic as a member state of the International Labour Organisation; and to provide for matters connected therewith.

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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 excluded in accordance with the provisions of this Act; or A term of the contract of employment is more favourable to the employee than 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 health and 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.

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Ordinary hours of work: An employer may not require or permit an employee to work more than 45 hours per week and nine hours in any day for an employee who works five days or less per week, or eight hours in any day for an employee who works more than five days a week. An agreement may extend these hours in accordance with the provisions of the Act. Provision is also made for work which needs to be done without delay due to unforeseen circumstances. Overtime: Overtime may only be worked by agreement. In this regard agreements lapse after certain time periods. Overtime is also limited to ten hours per week. Overtime pay is at least one and one- half times the employee’s wage but an agreement may provide for paid time off in lieu of such payment. An agreement may also allow for a compressed working week. Averaging of hours of work: In terms of a collective agreement, hours of work may be averaged over a period of up to four months. The Act does however lay down limitations in this regard. Determination of hours of work by the minister: The Minister may regulate the maximum permitted hours of work, including overtime, that any category of employee may work on the grounds of health and safety. Meal intervals: These are to be granted after a certain number of continuous hours worked. This may be varied by written agreement. Payment is due only in instances where an employee is to be available to work or for the portion of the interval that exceeds 75 minutes. An employee may be expected to work during a meal interval to perform duties that cannot be left unattended. Daily and weekly rest periods: Daily and weekly rest periods are provided for and again, may be varied slightly by agreement. Sunday work: A distinction in payment is made between employees who ordinarily work on a Sunday and those who do not. The later receive double time and the former, time and one-half. Pay will vary according to the time worked with a minimum of a normal day’s wage being payable. By agreement, paid time off may also be granted in lieu of payment. Night work: This is performed between 18h00 and 06h00. Certain provisions are applicable here, most notably the availability (not necessarily provision) of transportation, and obligations imposed on the employer in terms of health and safety for employees who undertake night work on a regular basis. Public holidays: This may only be worked by agreement. As with Sunday work, a premium is placed on working such days. The calculations differ according to whether it falls on what would have been normal working day or not, and obviously whether or not the employee actually works.

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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 day’s leave for every 17 days worked, or one hour’s leave for every 17 hours 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 month’s 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 6 weeks 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 employer’s 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.

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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 to at least one week’s 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 employer’s 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 child’s age, or work which puts at risk the child’s 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 Employment Conditions Commission which will then consider the report and advise the Minister on publication of a Sectoral Determination. 4

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 matter concerning the employment of children; (the Minister of Public Service and Administration) on any matter concerning 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 of an 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

jointly and severely liable if the service does not comply with the Act. This does not apply to Independent Contractors. Deeming of persons as an employee: The Minister may, on the advice of the Commission and by notice in the Gazette, deem any category of persons specified in the notice to be employees for the whole or part of the Act, any other law other than the Unemployment Insurance Act, 1996, or any sectoral determination and may deem any category of persons to be contributors for purposes of whole or part of the Unemployment Insurance Act, 1966. Regulations: The Minister may, by notice in the Gazette, after consulting the Commission, make regulations regarding any matter that may be necessary or expedient to prescribe in order to achieve the objectives of the Act. A regulation may also be made regarding state expenditure only with the occurrence of the Minister of Finance. Code of Good Practice: After consulting with NEDLAC the Minister may issue codes of good practice. These must all be taken into account in applying or interpreting any employment law. Codes issued: • • • • Arrangement of working time Protection of Employees during pregnancy Smoking in the workplace Procedures for the progressive reduction of maximum working hours

Penalties: Any Magistrate’s Court has jurisdiction to impose a penalty for an offence provided for in the Act. Various fines or prison terms are set out in the Act for contravention of various sections. Index of general administrative regulations: Definitions Informing employees of their rights Keeping of Records Record of Employees’ wages Written particulars of employment Certificate of service Ministerial Determination Subpoenas Securing an undertaking Compliance order Objections to Compliance orders Proof of service

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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.

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