You and Your Rights: Basic Conditions of Employment Act

Summary

  • No worker may be retaliated against for demanding the rights set out in the Basic Conditions of Employment Act
  • Senior managers, traveling sales staff, and those that work under 24 hours per month excluded, employees may not work for more than 12 hours of overtime each week
  • An extended weekend may be arranged by way of a compressed work week of no more than 12 hours per day
  • Any employee agreeing to work an 11pm to 6am shift must be debriefed on the health and safety risks, as well as compensated for regular medical examinations
  • Employer may not take annual leave hours away from employees while they are enjoying  special leave privileges such as maternity or sick leave 
  • Family responsibility leave may be taken on account of the birth or sickness of a child, or the death of a spouse, child, parent, grandparent, grandchild, or sibling
  • Deductions may only be made from an employee’s pay if they are agreed to in writing and are either a legal requirement, or part of a collective agreement, arbitration award or court order.
  • Four weeks notice must be provided employees of more than one year before termination of their labor contract
  • Employees must be permitted to challenge their dismissals on the basis of established labor policy
  • Collective agreements via the Bargaining Council may differ from the Act as long as worker protection is not reduced as regards health, safety, or family responsibilities
  • In addition to investigating complaints, Labor Inspectors must notify employees of their rights and responsibilities

Your Rights

The Basic Conditions of Employment Act applies to all employees and employers in South Africa except those who work for the National Defence Force and Intelligence Agencies, on vessels at sea and unpaid volunteers working for charities.

The Act does not cover:

  • Probationary periods; right of entry to the employers premises;  afternoons and weekends off; pension schemes; training or school fees; funeral benefits and savings accounts. However, all of these can be negotiated and included in an employment contract.
  • There is also no provision which prevents any other conditions of employment being included in a contract but any provision that sets conditions which are less favourable than those set by the Act, will be considered INVALID.

REMEMBER!

  • It is against the law to force someone to work.
  • Workers may not be treated unfairly for demanding their rights in terms of this Act.
  • It is against the law to employ a child under 15 years old.
  • Children under 18 may not do dangerous work or work meant for an adult.

Working time

This section doesn’t apply to senior managers (those who can hire, discipline and fire), sales staff who travel and workers who work less than 24 hours a month.

Normal or Ordinary hours of work

An employer may NOT require an employee to work more than:-

  • 45 hours in any week; and
  • 9 hours in any day if the employee works for 5 days or fewer in a week; or
  • 8 hours in any day if the employee works on more than five days in a week.

Overtime

Overtime is the time worked over and above normal daily hours. An employer may not require or permit an employee to work more than three hours overtime a day or ten hours of overtime a week except in accordance with an agreement. And even if there is an agreement, an employee may not work more than 12 hours of overtime in any one week.

An employer must pay an employee at least one and one-half times the employee’s wage for any overtime worked. However, an employer may choose to rather give the employee time off instead.

  • 30 minutes off for every hour of overtime worked + normal hourly wages OR;
  • 90 minutes off for every hour of overtime worked + no additional wages.

An employer must allow the employee time off for the extra hours worked within a month of the overtime. An employee and employer may extend one month to 12 months where there is an agreement between the employer and employee.

More flexibility of working time can also be negotiated if there is a collective agreement with a registered trade union.

  • Compressed working week: You may agree to work up to 12 hours in a day and work fewer days in a week. This can help working mothers and migrant workers by having a longer weekend.
  • Averaging: the ordinary hours of work and overtime may be averaged over a period of up to four months in terms of a collective agreement. A worker who is bound by such an agreement cannot work more than an average of 45 ordinary hours a week and an average of five hours of overtime a week over the agreed period. A collective agreement for averaging has to be re-negotiated each year.

Meal breaks and rest periods

An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. The meal break must be granted unless there is no-one else who can do your job or it is an inherent requirement of your job that you are there. 

The meal break may be reduced to not less than 30 minutes but only if agreed in writing. If you work less than 6 hours on a day, you are NOT entitled to a meal break.

Daily and weekly rest periods

An employee is entitled to rest for 12 hours between ending work on one day and starting again the next day. They must also get a weekly rest of at least 36 consecutive hours including Sundays, unless otherwise agreed.

When an employee lives at his or her place of work or has a meal break of up to 3 hours, the rest period can be cut to 10 hours (instead of 12 hours a day) by written agreement.

Pay for work on Sundays

  • An employer must pay an employee who works on a Sunday double wages for each hour worked, unless the employee ordinarily works on a Sunday. In this case, the employer must pay at one and one-half times their wages for each hour worked;
  • If an employee works less than their ordinary shift on a Sunday and the payment they are entitled to is less than their ordinary daily wage, the employer must pay the employee’s ordinary daily wage instead;
  • An agreement may allow an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay they would receive for working on the Sunday and the pay they would be entitled to in terms of the above provisions.

Night work

Night work is considered any work done after 6pm and before 6am the next day.

An employer may only ask an employee to perform night work by agreement. The employee must be compensated by the payment of an allowance (which may be a shift allowance) or by a reduction in working hours. Transport must also be available or provided between the employee’s home and the workplace at the beginning and end of the shift.

If an employee is required to work from 11pm to 6am every day, the employer must inform the employee of the health and safety risks. The employee is entitled to regular medical examination, paid for by the employer and must be moved to a day shift if the night work develops into a health problem. All medical examinations must be kept confidential.

Public holidays and Payment

An employee does not have to work on a public holiday unless they want too but they must be paid for any public holiday that falls on a working day. Any work agreed to on a public holiday must be paid at double the normal rate.

REMEMBER! It is the responsibility of the employer to regulate the working hours of employees. In doing so, they must take the health and safety of the employee into consideration as well as his or her family responsibilities.

Leave

This section does not apply to an employee who works less than 24 hours a month for an employer.

Annual leave and Payment

An employer must grant an employee at least 21 consecutive days’ annual leave on full remuneration in respect of each ‘annual leave cycle’ every 12 months.

If you break it down, an employee is entitled to one day’s paid leave on full remuneration for every 17 days worked or one hour’s paid leave for every 17 hours worked.

  • An employee is entitled to take his or her leave in consecutive days (in other words, all the days at once) and the employer must grant the leave within 6 months of application.
  • An employer cannot take the employees annual leave while they are enjoying other leave privileges (for example, you can’t deduct an employee’s annual leave when they are on maternity leave).
  • When on annual leave, employees must be paid as if they were at work. The wages can however be paid at the beginning of the leave period or by agreement with the employee on the usual pay day.
  • Annual leave must be taken in accordance with the agreement between employer and employee.
  • An employer may only pay a worker instead of giving leave if that worker leaves the job.

Sick leave and entitlement

A worker can take up to 6 weeks' paid sick leave during a 36 months cycle (i.e. ‘sick leave cycle’). In other words, during every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

  • During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
  • During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave by the number of days’ sick leave taken.
  • If an employee takes a days’ sick leave, they must be paid the wage they would ordinarily have received for work on that day; and the monies must be paid on the employee’s usual pay day.
  • You can agree to reduce the sick leave pay if the number of days of paid sick leave is increased;
  • An employer may want a medical certificate before paying a worker who is sick for more than 2 days at a time or more than twice in 8 weeks.

Family responsibility leave

If an employee works more than 4 days a week and has been employed by the same employer for more than 4 months, they are entitled to 3 days of family responsibility leave each year.

It can be taken...

  • when an employee’s child is born or is sick;
  • And if their spouse, life partner, child or adoptive child, grandparent, grandchild or sibling dies.

Family responsibility leave can be taken for a whole day or half a day but lapses when an employee’s annual leave lapses.

The employer may ask for reasonable proof of why the leave is needed. A collective agreement may vary the number of days and the circumstances under which leave is granted.

Maternity leave

A pregnant employee is entitled to at least 4 continuous months of maternity leave. She can start leave any time from 4 weeks before the expected date of birth OR on a date a doctor or midwife says is necessary for her health or that of her unborn child.

She also may not work for 6 weeks after the birth of her child unless declared fit to do so by a doctor or midwife.

A pregnant or breastfeeding worker is not allowed to perform work that is dangerous to her or her child, or which requires her to be working a night shift

The employer is NOT obliged to pay an employee during her maternity leave. However, an employer must reserve her position until she returns from maternity leave.

A woman may claim from the unemployment insurance fund (UIF) if she has contributed to the fund for more than four months. The fund pays a percentage of the wage/salary that she earned while she was contributing to the fund. Depending on her salary, she may claim between 30% and 58% of her salary during maternity leave. If you take maternity leave, you can only claim for up to 121 days.

An employee who has a miscarriage during the last three months of pregnancy or who bears a stillborn child is also entitled to six weeks’ maternity leave, whether or not the employee had started maternity leave at the time.

Employers should note that even where an employee who has already given birth is 100% well, the illness of the newborn baby entitles the employee to get time off to look after the child.

REMEMBER! No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health of her child.
Remuneration and Payment

An employer must pay an employee: 

  • in South African money;
  • daily, weekly, fortnightly or monthly;
  • In cash, cheque or direct deposit.

Wages can be set in three ways:

  • In the statutory system of wage determination through the Bargaining Council;
  • Through sectoral determinations made by the Minister of Labour;
  • Or outside that system, in centralised and decentralised bargaining at company (single employer) and plant level.


Minimum Wages

There is NO national (statutory) Minimum Wage. However, the Minister of Labour can set minimum terms and conditions of employment, including Minimum Wages. Ministerial sectoral determinations are in place in the following sectors in South Africa:

  • Domestic work sector
  • Contract cleaning
  • Private security sector
  • Wholesale and retail
  • Farm worker sector
  • Forestry sector
  • Taxi sector
  • Learnerships
  • Children in the performance of advertising, artistic and cultural activities

The minimum wage amounts vary widely, according to location, functions, years of experience and working hours.

The Minister of Labour CANNOT publish a sectoral determination covering employees and employers who are already covered by a collective agreement concluded at a Bargaining Council.

Allowances, bonuses and increases

These are not regulated by Basic Conditions of Employment Act and are therefore open to negotiation between employer and employee. 

Deductions

An employer may not make any deduction from an employee’s pay unless:

  • that worker agrees in writing;
  • the deduction is required by law or permitted in terms of a law (taxes and UIF contributions), collective agreement, court order or arbitration award. 

An employer may make a deduction to reimburse an employer for loss of damage only if:

  • the loss of damage occurred in the course of employment and was due to the fault of the employee;
  • the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;
  • the total amount of debt does not exceed the actual amount of the loss or damage;
  • And the total deductions from the employee’s remuneration do not exceed one-quarter of the employee’s remuneration.

Payslip information

An employee’s payslip must include:

  • employer's name and address
  • worker's name and job
  • period of payment
  • worker's pay
  • amount and purpose of any deduction made from the pay
  • actual amount paid to the worker.

If needed to add up the worker's pay, the payslip must also include:

  • ordinary pay rate and overtime pay rate
  • number of ordinary and overtime hours worked during that period of payment
  • number of hours worked on a Sunday or public holiday during that period
  • total number of ordinary and overtime hour worked in the period of averaging, if there is an averaging agreement.

Termination of Employment

Notice

An employee or employer must give notice to end an employment contract of not less than:

  • 1 week, if employed for four weeks or less
  • 2 weeks, if employed for more than four weeks but not more than one year;
  • 4 weeks, if employed for one year or more.

Notice must be in writing except from an employee who cannot write.

Payment instead of notice – an employer may pay the remuneration the employee would have received had they worked out the notice period. If an employee gives notice and the employer waives any part of that notice, the employer must pay the remuneration referred to above, unless the employer and employee agree otherwise.

Employees who stay in employer's accommodation must be given 1 month's notice of termination of the contract or be given alternative accommodation until the contract is lawfully terminated.

An employer giving notice may not stop a worker from challenging the dismissal in terms of the Labour Relations Act or any other law.

Severance pay

An employer must give an employee who is dismissed due to operational requirements at least 1 week's severance pay for every year of continuous employment. In the event of a dispute or disagreement, the employee may refer a dispute to the CCMA for resolution

Certificate of service

When a job ends, an employee must be given a certificate of service.

Procedure

Although the contact of employment makes provision for the termination of employment, the services of an employee cannot be terminated unless a valid and fair reason exists and fair procedure is followed.  If an employee is dismissed without a valid reason or without a fair procedure the employee may approach the CCMA for assistance.

Pro- rata leave and severance pay might be payable.

In the event of a worker being unable to return for work due to disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible - for example, amending or adapting their duties to suit the disability.  However, if this is not possible, then an employer may terminate the services of the worker.

Job Information

Employers must give new employees information about their job and working conditions in writing. This includes a description of any relevant council or sectoral determination and a list of any other related documents.

Employers must keep a record of at least:

  • the worker's name and job;
  • time worked;
  • money paid;
  • date of birth for workers under 18 years old.

Variations of the Basic Conditions of Employment

Bargaining council

A collective agreement concluded by a bargaining council can be different from this law as long it does not:

  • lower protection of workers in terms of health and safety and family responsibilities
  • lower annual leave to less than two weeks
  • lower maternity leave in any way
  • lower sick leave in any way
  • lower protection of night workers
  • allow for any child labour or forced labour.

Other agreements

Collective agreements and individual agreements must follow the Act.

The Minister of Labour

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.

Sectoral Determinations

Sectoral determinations may be made to establish basic conditions for workers in a specific sector and area.

Employment Conditions Commission

This Act makes provision for the Employment Conditions Commission to advise the Minister of Labour.
Monitoring, enforcement and legal proceedings

Every employee has the right to make a complaint to a trade union representative, trade union official or labour inspector; discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person. 

Labour inspectors must advise employees and employers about their labour rights and obligations. They inspect, investigate complaints, question people and inspect, copy and remove records.

An inspector may serve a compliance order by writing to the Director General of the Department of Labour, who will then look at the facts and agree, change or cancel the order.

This decision can be challenged in the Labour Court.

REMEMBER! It is a crime to:

  • hinder, block or try to wrongly influence a labour inspector or any other person obeying this Act
  • get or try to get a document by stealing, lying or showing a false or forged document
  • pretend to be a labour inspector or any other person obeying this Act
  • refuse or fail to answer fully any lawful question asked by a labour inspector or any other person obeying this Act
  • refuse or fail to obey a labour inspector or any other person obeying this Act.