You and Your Rights: Wholesale and Retail Workers

Summary

  • Up to 25% of a worker’s net pay may be deducted for losses or damages, though the worker must agree to the deduction in writing before it is taken
  • Employers cannot simply pay employees instead of granting leave.
  • Employers must ensure that work clothing provided employees is cleaned at no cost to the employee.
  • Workers who refuse alternative employment with the same or another employer are not entitled to severance pay.
  • Employer and employee must agree on any commission work in writing.

Your Rights

The Minister of Labour sets minimum terms and conditions of employment (including minimum wages) in certain sectors in South Africa, including the Wholesale and Retail sector. These are called ‘Ministerial Sectoral Determinations’ and they establish minimum wages, working hours, the number of leave days and termination rules. The Basic Conditions of Employment Act applies in respect of any matter not covered by the sectoral determinations.

SECTORAL DETERMINATION 9 applies to all employers and workers in the WHOLESALE and RETAIL sector, including those associated with:

  • merchandising,
  • warehousing, or
  • distribution operations.

The determination does not apply to workers who are covered by:

  • another sectoral determination, or
  • a bargaining council agreement.

The Basic Conditions of Employment Act applies in respect of any matter not covered by this sectoral determination.

MININUM WAGES FOR 2010/11

DEDUCTIONS

Conditions for Deductions

Employers may not make any deductions for debts or repayments on a worker’s pay, unless it is collectively agreed to in writing.

Employers, who make payments to a third party on behalf of the worker, must pay in accordance with the requirements of that payment agreement.

Employers may deduct for loss and damages if

  • it occurred during working hours and the worker was at fault
  •  a fair procedure has been followed allowing the worker to show why a deduction should not be made.
  • the total amount of the debt does not exceed the actual amount of the loss
  • the amount does not exceed ¼ of the workers pay.

Deductions for Damage or Loss

Deductions for damage or loss caused by the worker may only be made if:

  • the employer has followed a fair procedure and given the worker a chance to show why the deduction should not be made,
  • the worker agrees in writing, and
  • the total deduction is not more than 25% of the worker’s net pay.

Deductions for Benefit Funds

Employers must pay deductions and employer contributions to benefit funds (pension, provident, retirement, medical aid, etc.) to the fund within 7 days.

PAYSLIPs

Contents of Pay Slips

Employers must give workers the following information in writing when they are paid:

  • Employer’s name and address
  • Worker’s name and occupation
  • Period for which payment is made
  • Total salary or wages
  • Any deductions
  • The actual amount paid
  • If relevant to the calculation of pay:
    • Employee’s pay and overtime rates
    • Number of ordinary and overtime hours worked
    • Number of hours worked on a Sunday or public holiday
  • An employer must retain a copy for at least 3 years.

WORKING HOURS

Working Hours For Part Time Workers

A written agreement may provide a part time worker with:>

  • the hourly wage rate;
  • plus 25% for ordinary hours worked including Sundays;
  • at least 2 days leave off a week;
  • the right to sick and family responsibility leave

An employer does not have to pay a worker an allowance for night work.

Maximum Working Hours

Days worked per week

Ordinary hours per day

Maximum allowed per day

Ordinary hours per week

Overtime allowed per week

1 -5 days

9 hours

12 hours

45 hours

10 hours

6 -7 days

8 hours

12 hours

45 hours

10 hours


A written agreement may allow overtime hours to be increased to 15 hours a week, but for a period of no longer than 12 months.

Working on granted days off

Workers may work on granted days off by agreement. The employer must then pay the worker:

  • double the wage for each hour worked or,
  • the daily wage (if greater)

Meal Breaks

Workers must have a meal break of 60 minutes after 5 hours’ work. During a meal break, a worker might be required to do work, if it cannot be left unattended and no else can do it.

A written agreement may:

  • reduce meal intervals to 30 minutes
  • give a meal break for workers who work less than 6 hours.


Workers are entitled to two 15 minute tea breaks in the mid morning and afternoon.

Employers must give workers a 2nd meal break of at least 15 minutes for overtime worked.

Rest Periods

Workers must have a rest period of:

  • 12 hours each day; and
  • 36 consecutive hours each week (must include Sunday, unless otherwise agreed)

Workers rest period can be reduced to 10 hours if the workers’ meal interval lasts 3 hours or more.

Employers and workers may agree in writing to a rest period of at least 60 hours or more every second week.

A written agreement may provide for a rest period of at least 60 consecutive hours every week.

NIGHT WORK

Workers working between 19h00 and 07h00 must:

  • have an agreement in writing
  • get an allowance, or
  • have transport available to them.

Employers who require workers to perform night work on a regular basis must inform the worker in writing or orally (if the worker is unable to understand written communication) of any:

  • health and safety hazards associated with the work
  • rights to undergo a medical examination
    • before the worker starts
    • at appropriate intervals while the work continues

A worker’s hours may be changed to day work if:

  • the worker suffers from a health condition associated with the night work
  • it is practical

OVERTIME HOURS

Workers may not work:

  • overtime, unless by agreement
  • more than 10 hours’ overtime a week 
  • more than 12 hours’ on any day

A written agreement may increase overtime to 15 hours’ a week, but for no longer than 12 months.

Pay for Overtime

Employers must pay workers overtime at 1.5 times the normal wage. Alternatively, a worker may agree to receive paid time off.

SUNDAYS

Working On a Sunday

A written agreement may provide a worker who works 40 hours or less a week (including a Sunday):

  • 2 days off a week
  • 1 Sunday off every 4 consecutive weeks

Pay for Work on Sundays

Double wages are paid to workers who don’t normally work on a Sunday, for every hour worked.

Workers who usually work on a Sunday must be paid 1.5 times their normal wage.

Alternatively, employers may grant a worker paid time off for working on a Sunday.

PUBLIC HOLIDAYS

Pay for Public Holidays

Workers must get paid time off for any public holiday that falls on a working day. 

If the worker does work on a public holiday, they must be paid at least double the daily wage.

Working on Public Holiday

Working on a public holiday is by agreement only. 

Exchanging Public Holidays

A public holiday can be exchanged with another day by agreement.

Public Holidays and Annual Leave

A public holiday cannot be counted as annual leave.

ANNUAL LEAVE

Number of Leave Days

Workers must get annual leave of at least:

  • 21 consecutive days, or
  • 1 day for every 17 worked, or
  • 1 hour for every 17 worked.

Employers may reduce annual leave for paid days granted off.

Timing of Leave

Both the employer and worker must agree to the timing of leave.  If they cannot agree, the employer makes the final decision. An employer may not require or permit a worker to work during any period of annual leave.

Leave must be granted not later than 6 months after the end of the annual leave cycle (12 month periods from date of employment).

Reducing Annual Leave

Employers may reduce a worker’s annual leave by the days taken off for occasional leave during the annual leave cycle.

Payment for Annual Leave

Employers must pay workers the equivalent amount for annual leave as paid for days worked. This is to be paid before the worker’s leave period begins.

Pay instead of Annual Leave

Employers cannot pay workers instead of granting leave, except on termination of employment.

Annual Leave and Public Holidays

A public holiday cannot be counted as annual leave.

FAMILY RESPONSIBILITY LEAVE

Number of Leave Days

Workers may take 3 days of paid family responsibility leave during each annual leave cycle (12 month periods from date of employment). Family responsibility leave expires at the end of the annual cycle.

Reasons for Leave

You may take family responsibility leave -

  • when your child is born,
  • when your child is sick,
  • in the event of the death of your –
    • spouse or life partner,
    • parent or adoptive parent,
    • grandparent,
    • child or adopted child,
    • grandchild, or
    • siblings

Proof

Employers may require reasonable proof of the birth, illness or death for which a worker requests leave.

MATERNITY LEAVE

Number of Leave Days

Pregnant workers are entitled to at least 4 consecutive months of maternity leave.

Notification for Leave

Workers need to notify employers in writing when they plan to take maternity leave and when they plan to return to work. This is to be done at least 4 weeks prior.

Timing of Leave

Workers may take maternity leave 1 month before their due date, or earlier or later as agreed or required for health reasons.

Safety of Pregnant or Nursing Workers

A worker may not work for 6 weeks after the birth, unless a medical practitioner certifies she is fit to do so. A worker who is pregnant or nursing may not do work that is unsafe for her or her child.

A worker who has a miscarriage during the 3rd trimester of pregnancy or gives birth to a stillborn is entitled to 6 weeks maternity leave

SICK LEAVE

Number of Leave Days

An employee is entitled to 6 weeks’ paid sick leave in a period of 36 months. However, during the first 6 months of employment, workers are only entitled to 1 day’s paid sick leave for every 26 days worked.

Pay for Sick Leave

Employers must pay workers their ordinary daily wage for sick leave. This must be paid on their normal payday.

Proof of Illness

An employer may require a medical certificate before paying workers who are absent for more than 2 consecutive days, or who are often absent (more than twice in an 8-week period).

WORK CLOTHING AND EQUIPMENT

Protective Work Clothing

Employers must provide workers with at least 2 protective work clothing items per year free of charge. This can include:

  • overalls
  • washing coats 
  • rain gear 
  • knee pads

All work clothing remains the property of the employer.

Cleaning of Work Clothing

Employers must ensure clothing provided for workers is clean at no cost to the worker. 

If an employer pays the worker an allowance of at least R2.60 per week, the worker is responsible for cleaning the work clothing.

Payments for Work Clothing

Employers may provide workers with more than 1 work uniform in a good condition. The worker may then pay the employer for the uniform at cost price.

All deductions made by employers for work clothing supplied must be deducted over a period of at least 4 months, in equal amounts.

ATTENDANCE REGISTER

Employers must provide a manual or automatic attendance register containing the following information:

  • name of each worker;
  • day of the week;
  • time of work commenced;
  • times of all meal intervals;
  • time of finishing work;
  • overtime;
  • total number of hours worked;
  • workers signature
  • An employer must keep records of attendance registers for at least 3 years.

EMPLOYMENT CONTRACTS

At the start of employment, employers must give workers a document containing the following information:

Employer’s and Worker’s Details

  • Employer’s full name;
  • Employer’s address ;
  • Worker’s name;
  • Worker’s occupation, or a brief description of the work.

Employment Details

  • Place/s of work;
  • Date of employment;
  • Working hours and days of work.

Payment Details

  • Salary or wage, or the rate and method of calculating wages;
  • Rate for overtime; 
  • Any other cash payments;
  • Any payments in kind and their value;
  • Frequency of payment; 
  • Any deductions.
  • Value and payment for any food or accommodation

Leave Details>Any leave to which the worker is entitled.

Notice/Contract Period

  • Period of notice required;
  • Period of contract.

This document must be updated if any of the details change. An employer must keep a copy of this document while the worker is employed and for 3 years thereafter.

If a worker is unable to understand the contract the employer is to explain the information in a way that he or she understands.

EMPLOYMENT RECORDS

Employers must keep a record of the following information for each worker:

  • Worker’s name and occupation
  • Time worked
  • Pay received
  • Date of birth (if under 18 years of age)
  • Any other prescribed information

TERMINATION

Notice of Termination

Notice must be given in writing. Notice of termination may not be given during any period of leave entitled to a worker, except sick leave. Notice Period

Length of time the worker is employed:

Required Notice Period

Length of time the worker is employed:

       Required Notice Period

6 months or less

       1 week

6 months to 1 year

       2 weeks

1 year or more

       4 weeks


A collective agreement may reduce the notice period.

Pay instead of Notice

Employers can decide to waive the notice period but the worker must still be paid out for the notice period.

Payment on Termination

On termination of employment the employer must pay a worker all monies due to the worker:

  • wages
  • allowance or other payments
  • paid time off

Severance Pay

Retrenched workers (dismissed due to employer’s operational requirements or insolvency) are entitled to 1 week’s severance pay for every year of service.

Workers who refuse to accept alternative employment with their employer or that with another employer are not entitled to severance pay.

If there is a dispute regarding the right to severance pay, the worker may refer the matter to the CCMA.

Certificate of Service

On termination of employment, workers are entitled to a certificate of service.

The certificate if service must state -

  • worker’s full name;
  • name and address of the employer;
  • date of commencement and termination of employment;
  • title of job and brief description of work;
  • any relevant training received;
  • pay received at termination
  • reason for termination (if requested by the worker).

Unfair Dismissal

Workers who feel they have been unfairly dismissed should consult the Labour Relations Act or refer the matter to the CCMA or Department of Labour.

EMPLOYMENT AGENCIES and INDEPENDENT CONTRACTORS

Workers whose services are provided to a client by an employment agency are employed by the agency. The agency is the employer of the worker.

The employment agency and client are jointly responsible to comply with the requirements in this sectoral determination.

Contractors

A worker who is an independent contractor is not an employee of a temporary employment service.

COMMISSION WORK

The employer and worker must agree to commission work in writing.

This agreement must include -

  • the worker’s wage
  • basis for calculating commission payments
  • period for commission (no longer than 1 month)
  • date of payments for commission (no later than 1 month)
  • detailed description of what the worker is entitled to earn commission on, such as the -
    • type
    • description
    • number
    • quantity
    • value of sales
    • margin profits
    • orders


The employer must supply the worker with a copy of this agreement.

Payment of Commission Work

Workers must get paid at least 2/3 of the minimum wage.

Employers must pay workers’ commissions no later than 1 month after the period of the commission work has stopped.

CHILD LABOUR

Children Under 15

It is a criminal offence to employ a child under the age of 15.

Children Under 18

Children aged 15 to 18 may not be employed to do work inappropriate for their age or work that places them at risk. An employer must retain a copy of all records of workers under the age of 18 years for at least 3 years.

USEFUL CONTACTS

CCMA (Commission for Conciliation, Mediation and Arbitration)
 
For case related queries and labour advice, call CCMA Call Centre on: 0861 16 16 16.
 
CCMA National Office

Tel: (011) 377-6650/6600
Fax: (011) 834-7351
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

DEPARTMENT OF LABOUR

Tel: 012-309 4000
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Web: www.labour.gov.za