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Basic Conditions of Employment Act 75 of 1997
as amended by Act 11 of 2002
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BASIC CONDITIONS OF EMPLOYMENT ACT
75 of 1997 Note: Amended provisions have been highlighted in
"blue" type for easy reference No. 1631. 5 December 1997 It is hereby notified that the President has assented to the following Act which is hereby published for general information:- No. 1631. 5 December 1997 No. 75 of 1997: Basic Conditions of Employment Act, 1997. ACT 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. (English text signed by the President.) (Assented to 26 November 1997.) Preface to Act 11 of 2002 Amendment (English text signed by the President.) BE IT ENACTED by the Parliament of the Republic of South Africa as follows:- TABLE OF CONTENTS Chapter One Definitions, Purpose and Application of this Act 1. Definitions Chapter Two The Regulation of Working Time
Chapter Three Leave 19. Application of this Chapter Chapter Four Particulars of Employment and Remuneration 28. Application of this Chapter Chapter Five Termination of Employment 36. Application of this Chapter Chapter Six Prohibition of Employment of Children and Forced Labour 43. Prohibition of employment of children Chapter Seven Variation of Basic Conditions of Employment 49. Variation by agreement Chapter Eight Sectoral Determinations 51. Sectoral determination Chapter Nine Employment Conditions Commission 59. Establishment and functions of Employment Conditions Commission Chapter Ten Monitoring, Enforcement and Legal Proceedings 63. Appointment of labour inspectors Chapter Eleven General 82. Temporary employment services SCHEDULES Schedule One: Procedures
for Progressive Reduction of Maximum Working Hours CHAPTER ONE DEFINITIONS, PURPOSE AND APPLICATION OF THIS ACT Definitions 1. In this Act, unless the context indicates otherwise- "agreement" includes a collective agreement; "area" includes any number of areas, whether or not contiguous; "bargaining council" means a bargaining council registered in terms of the Labour Relations Act, 1995, and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act; "basic condition of employment" means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment; "CCMA" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995; "child" means a person who is under 18 years of age' "code of good practice" means a code of good practice issued by the Minister in terms of section 87 of this Act; "collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand (a) one or more employers;(b) one or more registered employers' organisations; or (c) one or more employers and one or more registered employers' organisation; "Commission" means the Employment Conditions Commission established by section 59(1) ; "compliance order" means a compliance order issued by a labour inspector in terms of section 69(1); "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); "council" includes a bargaining council and a statutory council. "Department" means the Department of Labour; "Director-General" means the Director-General of Labour; 25 "dispute" includes an alleged dispute; "domestic worker" means an employee who performs domestic work in the home of his or her employer and includes-
"employee" means-
"employed" and "employment" have a corresponding meaning; [Footnote: "Employee" is given a specific meaning in section 82(1).] "employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions; "employment law" includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts: (a) The Unemployment Insurance Act, 1966 (Act No. 30 of 1966); [Note:
this should read "The Unemployment
Insurance Act, 2001, (Act No. 63 of 2001)"] "farm worker" means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work in a home on a farm; "Labour Appeal Court" means the Labour Appeal Court established by section 167 of the Labour Relations Act, 1995; "Labour Court" means the Labour Court established by section 151 of the Labour Relations Act, 1995; "labour inspector" means a labour inspector appointed under section 63, and includes any person designated by the Minister under that section to perform any function of a labour inspector; "Labour Relations Act, 1995" means the Labour Relations Act, 1995 (Act No. 66 of 1995); "medical practitioner" means a person entitled to practice as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974); "midwife" means a person registered or enrolled to practice as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978); "Minister" means the Minister of Labour "month" means a calendar month; "NEDLAC" means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994); "ordinary hours of work" means the hours of work permitted in terms of section 9 or in terms of any agreement in terms of sections 11 or 12; "overtime" means the time that an employee works during a day or a week in excess of ordinary hours of work; "prescribe" means to prescribe by regulation and "prescribed" has a corresponding meaning; "public holiday" means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994); "public service" means the public service referred to in section 1(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes any organisational component contemplated in section 7(4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding-
"registered employers' organisation" means an employers' organisation registered under section 96 of the Labour Relations Act, 1995; "registered trade union" means a trade union registered under section 96 of the Labour Relations Act, 1995; "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning; [Footnote: "Remuneration" is given a specific meaning in section 35(5).] "sector" means an industry or a service or a part of an industry or a service; "sectoral determination" means a sectoral determination made under Chapter Eight. "senior managerial employee" means an employee who has the authority to hire discipline and dismiss employees and to represent the employer internally and externally; "serve" means to send by registered post, telegram, telex, telefax or deliver by hand. "statutory council" means a council established under Part E of Chapter III of the Labour Relations Act, 1995; "temporary employment service" means any person who, for reward, procures for, or provides to a client, other persons-
"this Act" includes the Schedules and any regulation made under this Act, but does not include the headings or footnotes; "Trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations; "trade union official" includes an official of a federation of trade unions; "trade union representative" means a trade union representative who is entitled to exercise the rights contemplated in section 14 of the Labour Relations Act, 1995; "wage" means the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week; "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls; "workplace" means any place where employees work "workplace forum" means a workplace forum established under Chapter V of the Labour Relations Act, 1995. 2. Purpose of this Act The purpose of this Act is to advance economic development and social justice by fulfilling the primary objects of this Act which are-
3. Application of this Act (1) This Act applies to all employees and employers except-
(2) This Act applies to persons undergoing vocational training except to the extent that any term or condition of their employment is regulated by the provisions of any other law. (3) This Act, except section 41, does not apply to persons employed on vessels at sea in respect of which the Merchant Shipping Act, 1951 (Act No. 57 of 1951), applies except to the extent provided for in a sectoral determination. 4. Inclusion of provisions in contracts of employment A basic condition of employment constitutes a term of any contract of employment except to the extent that-
5. This Act not affected by agreements This Act or anything done under it takes precedence over any agreement, whether entered into before or after the commencement of this Act. CHAPTER TWO Regulation of working time 6. Application of this chapter (1) This Chapter, except section 7, does not apply to-
(2) Sections 9, 10(1), 14(1), 15(1), 17(2) and 18(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work. (3) The Minister must, on the advice of the Commission, make a determination that excludes the application of this Chapter or any provision of it to any category of employee earning in excess of an amount stated in that determination. [Click here to view the current Determination] (4) Before the Minister issues a notice in terms of subsection (3), the Minister must- (a) publish in the Gazette a draft of the proposed notice; and 7. Regulation of working time Every employer must regulate the working time of each employee- (a) in accordance with the provisions of any Act governing
occupational health and safety;
8. Interpretation of day For the purposes of sections 9 to 16, "day" means a period of 24 hours measured from the time when the employee normally commences work, and `daily' has a corresponding meaning." [For old provision, click here] 9. Ordinary hours of work (1) Subject to this chapter, an employer may not require or permit an employee to work more than- (a) 45 hours in any week; and (2) An employees ordinary hours of work interns of subsection (1) may by agreement be extended by up to 15 minutes a day but not more than 60 minutes in a week to enable an employee whose duties includes serving members of the public to continue performing those duties after the completion of ordinary hours of work. (3) Schedule 1 establishes procedures for the progressive reduction of the maximum ordinary hours of work to a maximum of 40 ordinary hours of work per week and 8 ordinary hours of work per day. 10. Overtime (1) Subject to this Chapter, an employer may not require or permit an employee to work- (a) overtime except in accordance with an agreement; (1 A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day. [For old provision, click here] (2) An employer must pay an employee at least one and one-half times the employee's wage for overtime worked. (3) Despite subsection (2), an agreement may provide for an employer to- (a) pay an employee not less than the employee's ordinary wage for overtime worked and grant the
employee at
least 30 minutes' time off on full pay for every hour of overtime worked;
or (4) (a) An employer must grant paid time off in terms of subsection (3)
within one month of the employee becoming entitled to it; or (5) An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year. (6) (a) A collective agreement may increase the maximum permitted overtime to 15 hours a week. A collective agreement contemplated in paragraph (a) may not apply for more than two months in any period of 12 months. 11. Compressed working week (1) An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of section 14, without receiving overtime pay. (2) An agreement in terms of subsection(1), may not require or permit an employee to work- (a) more than 45 ordinary hours of work in any week; 12. Averaging of hours of work (1) Despite sections 9(1) and (2) and 10(1)(b), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement. (2) An employer may not require or permit an employee who is bound by a collective agreement in terms of subsection (1) to work more than- (a) an average of 45 ordinary hours of work in a week
over the agreed period; (3) A collective agreement in terms of subsection (1) lapses after 12 months. (4) Subsection (3) only applies to the first two collective agreements concluded in terms of subsection (1). 13. Determination of hours of work by Minister (1) Despite this Chapter, the Minister, on grounds of health and safety may prescribe by regulation the maximum permitted hours of work, including overtime, that any category of employee may work- (a) daily, weekly or during any other period specified in the
regulation; and (2) A regulation in terms of subsection (1) may not prescribe maximum hours in excess of those permitted in sections 9 and 10. (3) A regulation in terms of subsection (1) may be made only- (a) on the advice of the chief inspector appointed in terms of
section 27 of the Occupational Health and Safety Act, 1993 (Act No. 85
of 1993) or the chief inspector appointed in terms of section 48 of the
Mine Health and Safety Act, 1996 (Act No. 29 of 1996); and 14. Meal intervals (1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. (2) During a meal interval, the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee. (3) An employee must be remunerated- (a) for a meal interval in which the employee is required to
work or is required to be available for work; and (4) For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes. (5) An agreement in writing may- (a) reduce the meal interval to not less than 30 minutes; 15. Daily and weekly rest period (1) An employer must allow an employee- (a) a daily rest period of at least twelve consecutive hours between
ending and recommencing work; and (2) a daily rest period in terms of subsection (1)(a) may by written agreement be reduced to 10 hours for an employee- (a) who lives on the premises at which the workplace is
situated; and (3) Despite subsection (1)(b), an agreement in writing may provide for- (a) a rest period of at least 60 consecutive hours every two weeks;
or 16. Pay for work on Sundays (1) An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one- half times the employee's wage for each hour worked. (2) If an employee works less than the employee's ordinary shift on a Sunday and the payment that the employee is entitled to in terms of subsection (1) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage. (3) Despite subsections (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subsections (1) and (2). (4) Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of section 9(1) and (2), but is taken into account in calculating the overtime worked by the employee in terms of section 10(1)(b). (5) If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. (6) (a) An employer must grant paid time off in terms of subsection (3)
within one month of the employee becoming entitled to it; 17. Night work (1) In this section, "night work" means work performed after 18:00 and before 06:00 the next day. (2) An employer may only require or permit an employee to perform night work, if so agreed, and if- (a) the employee is compensated by the payment of an
allowance, which may be a shift allowance, or by a reduction of working
hours; and (3) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must- (a) inform the employee in writing or orally if the employee is not able to understand a written communication, in a language that employee understands. (i) of any health and safety hazards associated with the work that the
employee is required to perform; and (b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards - (i) before the employee starts, or within a reasonable
period of the employee starting, such work; and (c) transfer the employee to suitable day work within a reasonable time if- (i) the employee suffers from a health condition
associated with the performance of night work; and (4) For the purposes of subsection (3) an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year. (5) The Minister may, after consulting the Commission, may make regulations relating to the conduct of medical examinations for employees who perform night work. (4) [Note: (4) Section 90 protects the confidentiality of any medical examination conducted in terms of this Act] 18. Public holidays (5) 18.(1) An employer may not require an employee to work on a public holiday except in accordance with an agreement. (2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay- (a) an employee who does not work on the public holiday,
at least the wage that the employee would ordinarily have
received for work on that day; (i) at least double the amount referred to in paragraph (a); or (3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to- (a) the employee's ordinary daily wage; plus (4) An employer must pay an employee for a public holiday on the employee's usual pay day. (5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. [Note: (5) In terms of section 2 (2) of the Public Holidays Act, 1994 (Act No. 36 of 1994), a public holiday is exchangeable for any other day which is fixed by agreement or agreed to between the employer and the employee.] CHAPTER THREE LEAVE 19. Application of this Chapter (1) The provisions of this Chapter do not apply to an employee who works less than 24 hours a month for an employer. (2) Unless an agreement provides otherwise, the provisions of this Chapter do not apply to leave granted to an employee in excess of the employee's entitlement under this Chapter. 20. Annual leave (1) In this Chapter, "annual leave cycle" means the period of 12 months' employment with the same employer immediately following- (a) an employee's commencement of employment; or (2) An employer must grant an employee at least- (a) 21 consecutive days' annual leave on full remuneration in
respect of each annual leave cycle; or (3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection (2) on consecutive days. (4) An employer must grant annual leave not later than six months after the end of the annual leave cycle. (5) An employer may not require or permit an employee to take annual leave during- (a) any other period of leave to which the employee is
entitled in terms of this Chapter; or (6) Despite subsection (5), an employer must permit an employee, at the employee 's written request, to take leave during a period of unpaid leave. (7) An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave on full remuneration granted to the employee at the employee's request in that leave cycle. (8) An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee's annual leave on which the employee would ordinarily have worked. (9) An employer may not require or permit an employee to work for the employer during any period of annual leave. (10) Annual leave must be taken- (a) in accordance with an agreement between the employer and employee;
or (11) An employer may not pay an employee instead of granting paid leave in terms of this section except- (a) on termination of employment; and 21. Pay for annual leave (1) An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated- (a) at the employee's rate of remuneration immediately
before the beginning of the period of annual leave; and (2) An employer must pay an employee leave pay- (a) before the beginning of the period of leave; or Sick leave 22.(1) In this Chapter, "sick leave cycle" means the period of 36 months' employment with the same employer immediately following- (a) an employee's commencement of employment; or (2) 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. (3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. (4) During an employee's first sick leave cycle, an employer may reduce the employee's entitlement to sick leave in terms of subsection (2) by the number of days' sick leave taken in terms of subsection (3). (5) Subject to section 23, an employer must pay an employee for a day's sick leave---- (a) the wage the employee would ordinarily have
received for work on that day; and (6) An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this section if- (a) the number of days of paid sick leave is increased at least
commensurately with any reduction in the daily amount of sick pay; and (i) for any day's sick leave is at least 75 per cent of the wage
payable to the employee for the ordinary hours the employee
would have worked on that day; and 23. Proof of incapacity (1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury. (2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. (3) If it is not reasonably practicable for an employee who lives on the employer's premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate. 24. Application to occupational accidents or diseases Sections 22 and 23 do not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), or the Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973), except in respect of any period during which no compensation is payable in terms of those Acts. 25. Maternity leave (6) (1) An employee is entitled to at least four consecutive months' maternity leave. (2) An employee may commence maternity leave- (a) at any time from four weeks before the expected date of birth,
unless otherwise agreed; or (3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. (4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or still birth. (5) An employee must notify an employer of the date on which the employee intends to - (a) commence maternity leave; and (6) Notification in terms of subsection (5) must be given- (a) at least four weeks before the employee intends to commence
maternity leave; or (7) The payment of maternity benefits will be determined by the minister subject to the provisions of the Unemployment Insurance act, 1966 (Act No. 30 of 1966) (7)
Protection of employees before and after birth of a child 26.(1) 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 or the health of her child. ( 8 ) (2) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if- (a) the employee is required to perform night work, as defined
in section 17(1) or her work poses a danger to her health or safety or
that of her child; and Family responsibility leave 27.(1) This section applies to an employee- (a) who has been in employment with an employer for longer than four
months; and (2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days' paid leave, which the employee is entitled to take- (a) when the employee's child is born; (i) the employee's spouse or life partner; or (3) Subject to subsection (5), an employer must pay an employee for a day's family responsibility leave- (a) the wage the employee would ordinarily have
received for work on that day; and (4) An employee may take family responsibility leave in respect of the whole or a part of a day. (5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (2) for which the leave was required. [For old provision, click here] (6) An employee's unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues. (7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.
CHAPTER FOUR PARTICULARS OF EMPLOYMENT AND REMUNERATION Application of this Chapter 28.(1) The provisions of this Chapter do not apply to an employee who works less than 24 hours a month for an employer. (2) The provisions of sections 29(1)(n), (o) and (p), 30, 31 and 33 do not apply to - (a) an employer who employs fewer than five employees; and Written particulars of employment 29.(1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing- (a) the full name and address of the employer; (2) When any matter listed in subsection (1) changes- (a) the written particulars must be revised to reflect the change;
and (3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. (4) Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment. Informing employees of their rights 30.An employer must display at the workplace where it can be read by employees a statement in the prescribed form of the employee's rights under this Act in the official languages which are spoken in the workplace. Keeping of records 31.(1) Every employer must keep a record containing at least the following information- (a) the employee's name and occupation; (2) A record in terms of subsection (1) must be kept by the employer for a period of three years from the date of the last entry in the record. (3) No person may make a false entry in a record maintained in terms of subsection (1). (4) An employer who keeps a record in terms of this section is not required to keep any other record of time worked and remuneration paid as required by any other employment law. Payment of remuneration 32.(1) An employer must pay to an employee any remuneration that is paid in money- (a) in South African currency; (2) Any remuneration paid in cash or by cheque must be given to each employee- (a) at the workplace or at a place agreed to by the employee; (3) An employer must pay remuneration no later than seven days after- (a) the completion of the period for which the remuneration is
payable; or (4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund. Information about remuneration 33.(1) An employer must give an employee the following information in writing on each day the employee is paid - (a) the employer's name and address; (i) the employee's rate of remuneration and overtime
rate; (2) The written information required in terms of subsection (1) must be given to each employee- (a) at the workplace or at a place agreed to by the employee;
and Deductions and other acts concerning remuneration 34(1) An employer may not make any deduction from an employee's remuneration unless- (a) subject to subsection (2), the employee in writing agrees to the
deduction in respect of a debt specified in the agreement; or (2) A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if- (a) the loss or damage occurred in the course of employment and was
due to the fault of the employee; (3) A deduction in terms of subsection 1(a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods. (4) An employer who deducts an amount from an employee's remuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award. (5) An employer may not require or permit an employee to- (a) repay any remuneration except for overpayments previously
made by the employer resulting from an error in calculating the employee's
remuneration; or Calculation of remuneration and wages 35(1) An employee's wage is calculated by reference to the number of hours an employee ordinarily works. (2) For the purposes of calculating the wage of an employee by time, an employee is deemed ordinarily to work- (a) 45 hours in a week unless (3) An employee's monthly remuneration or wage is four and one-third times the employee's weekly remuneration or wage, respectively. (4) If an employee's remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee's remuneration or wage fluctuates significantly from period to period, any payment to that employee in terms of this Act must be calculated by reference to the employee's remuneration or wage during- (a) the preceding 13 weeks; or (5) For the purpose of calculating an employee's annual leave pay in terms of section 21, notice pay in terms of section 38 or severance pay in terms of section 41, an employee's remuneration- (a) includes the cash value of any payment in kind that forms part of
the employee's remuneration unless the employee receives
that payment in kind; but (i) gratuities; CHAPTER FIVE
TERMINATION OF EMPLOYMENT
Application of this Chapter 36. This Chapter does not apply to an employee who works less than 24 hours in a month for an employer. Notice of termination of employment 37.(1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than- (a) one week, if the employee has been employed for
four weeks or less; (i) has been employed for one year or more; or (2) A collective agreement may permit a notice period shorter than that required by subsection (1). (3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer. (4) (a) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee. (b) If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands. (5) Notice of termination of a contract of employment given by an employer must- (a) not be given during any period of leave to which the employee
is entitled in terms of Chapter Three; and (6) Nothing in this section affects the right- (a) of a dismissed employee to dispute the lawfulness or
fairness of the dismissal in terms of Chapter VIII of the Labour
Relations Act 1995 or any other law; and Payment instead of notice 38.(1) Instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received, calculated in accordance with section 35, if the employee had worked during the notice period. (2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise. Employees in accommodation provided by employers 39.(1) If the employer of an employee who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer terminates the contract of employment of that employee-
the employer is required to provide the employee with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated. (2) If an employee elects to remain in accommodation in terms of subsection (1) after the employer has terminated the employee's contract of employment in terms of section 38, the remuneration that the employer is required to pay in terms of section 38 is reduced by that portion of the remuneration that represents the agreed value of the accommodation for the period that the employee remains in the accommodation. Payments on termination 40. On termination of employment, an employer must pay an employee- (a) for any paid time off that the employee is entitled to in
terms of section 10(3) or 16(3) that the employee has not taken; (i) one day's remuneration in respect of every 17 days on
which the employee worked or was entitled to be paid; or Severance pay 41.(1) For the purposes of this section, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. (2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with section 35. (3) The Minister may vary the amount of severance pay in terms of subsection (2) by notice in the Gazette. This variation may only be done after consulting NEDLAC and the Public Service Co-ordinating Bargaining Council established under Schedule 1 of the labour relations act, 1995. (4) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subsection (2). (5) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law. (6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to- (a) a council, if the parties to the dispute fall
within the registered scope of that council; or (7) The employee who refers the dispute to the council or the CCMA must satisfy it that a copy of the referral has been served on all the other parties to the dispute. (8) The council or the CCMA must attempt to resolve the dispute through conciliation. (9) If the dispute remains unresolved, the employee may refer it to arbitration. (10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount. Certificate of service 42. On termination of employment an employee is entitled to a certificate of service stating- (a) the employee's full name; CHAPTER SIX
PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR Prohibition of employment of children 43. (1) No person may employ a child- (a) who is under 15 years of age; or NOTE 9 (2) No person may employ a child in employment- (a) that is inappropriate for a person of that age; (3) A person who employs a child in contravention of subsection (1) commits an offence. Employment of children of 15 years or older. 44.(1) Subject to section 43(2), 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. (2) A person who employs a child in contravention of subsection (1) or (2) commits an offence. NOTE 9 Section 31(1) of the South African Schools Act,1996 (Act No. 84 of 1996), requires every parent to cause every learner for whom he or she is responsible to attend a school until the last school day of the year in which the learner reaches the age of 15 or the ninth grade, whichever is the first. Medical examinations 45. The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations of children in employment. (Note 10) Prohibitions 46. It is an offence to- (a) assist an employer to employ a child in contravention of this
Act; or Evidence of age 47. In any proceedings in terms of this Act, if the age of an employee is a relevant factor for which insufficient evidence is available, it is for the party who alleges that the employment complied with the provisions of this Chapter to prove that it was reasonable for that party to believe, after investigation, that the person was not below the permitted age in terms of section 43 or 44. Prohibition of forced labour 48. (1) Subject to the Constitution, all forced labour is prohibited. (2) No person may for his or her own benefit or for the benefit of someone else, cause, demand or impose forced labour in contravention of subsection (1). (3) A person who contravenes subsection (1) or (2) commits an offence.
CHAPTER SEVEN VARIATION OF BASIC CONDITIONS OF EMPLOYMENT Variation by agreement 49. (1) A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with the purpose of this Act and the collective agreement does not-
(d)reduce an employee's entitlement to maternity leave in terms of section 25; (e)reduce an employee's entitlement to sick leave in terms of sections 22 to 24; (f) conflict with the provisions of chapter 6.
(2) A collective agreement, other than an agreement contemplated in subsection (1), may replace or exclude a basic condition of employment, to the extent permitted by this Actor a sectoral determination. (3) An employer and an employee may agree to replace or exclude a basic condition of employment to the extent permitted by this Act or a sectoral determination. (4) No provision in this Act or a sectoral determination may be interpreted as permitting- (a) contract of employment or agreement between an employer and an
employee contrary to the provisions of a collective agreement; Note 10 Section 90 (3) protects the confidentiality of any medical examination conducted in terms of this Act
Variation by the Minister 50.(1) The Minister may, if it is consistent with the purpose of this Act, make a determination to replace or exclude any basic condition of employment provided for in this Act in respect of- (a)any category of employees or category of employers; or (i) the employer; (2) A determination in terms of subsection (1)
(3) A determination in terms of subsection 1(a) must-
(4) The minister may request the commission-
(b) to prepare guidelines for the consideration of applications made in terms of subsection 1(b); (5) A determination in terms of subsection (1) that applies to the public service must be made by the Minister in consultation with the Minister for the Public Service and Administration. (6).If a determination in terms of subsection (1) concerns the employment of children, the Minister must consult with the Minister of Welfare and Population Development before making the determination. (7) (a) A determination in terms of subsection (1)(b) may be issued if the application has the consent of any registered trade union that represents the employees in respect of whom the determination is to apply. (i) the employer or employers' organisation has served a copy of the application, together with a notice stating that representations may be made to the Minister, on any registered trade union that represents employees affected by the application; and
(8) A determination made in terms of subsection (1)(b)- (a) may be issued on any conditions and for a period determined by
the Minister; (9) (a) The Minister may on application by any affected party and after allowing other affected parties a reasonable opportunity to make representations, may amend or withdraw a determination issued in terms of subsection (1). (b) For the purposes of paragraph (a), an affected party is- (i) an employer or employers' organisation that is covered by the
determination; (10) An employer in respect of whom a determination has been made, or whose employees are covered by a determination in terms of subsection (1) must- (a) display a copy of the notice conspicuously at the workplace
where it can be read by the employees to whom the determination
applies; (i) any registered trade union representing those employees; CHAPTER EIGHT
SECTORAL DETERMINATIONS Sectoral determination 51.(1) The Minister may make a sectoral determination establishing basic conditions of employment for employees in a sector and area. (2) A sectoral determination must be made in accordance with the provisions of this Chapter and by notice in the Gazette. Investigation 52.(1) Before making a sectoral determination, the Minister must direct the Director-General to investigate conditions of employment in the sector and area concerned. (2) The Minister must determine terms of reference for the investigation, which must include- (a) the sector and area to be investigated; (3) The Minister must publish a notice in the Gazette setting out the terms of reference of the investigation and inviting written representations by members of the public. (4) If an organisation representing employers or employees in a sector and area makes a written request to the Minister to investigate conditions of employment in that sector and area, the Minister must either- (a) direct the Director-General to conduct an
investigation; or Conduct of investigation 53. (1) For the purposes of conducting an investigation in terms of section 52(1) the Director-General may- (a) question any person who may be able to provide information
relevant to any investigation; or (2) A person may not refuse to answer any relevant question by the Director-General that he or she is legally obliged to answer. (11) Notes: 11. An answer by a person to a question put to him or her by a person conducting an investigation may not be used in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement (s.91) Preparation of report 54. (1) On completion of an investigation, and after considering any representations made by members of the public, the Director-General must prepare a report. (2) A copy of the report must be submitted to the Commission for its consideration. (3) When advising the Minister on the publication of a sectoral determination, the Commission must consider in respect of the sector and area concerned- (a) the report prepared in terms of subsection (1); (4) The Commission must prepare a report for the Minister containing recommendations on what matters which should be included in a sectoral determination for the relevant sector and area. Making of sectoral determination 55. (1) After considering the report and recommendations of the Commission contemplated in section 54 (4), the Minister may make a sectoral determination for one or more sector and area. (2) If the Minister does not accept a recommendation of the Commission made in terms of section 54(4), the Minister must refer the matter to the Commission for its reconsideration indicating the matters on which the Minister disagrees with the Commission. (3) After considering the further report and recommendations of the Commission, the Minister may make a sectoral determination. (4) A sectoral determination may in respect to the sector and area concerned- (a) set minimum terms and conditions of employment, including
minimum rates of remuneration; (5) Any provision of a sectoral determination may apply to all or some of the employers and employees in the sector and area concerned. (6) A sectoral determination in terms of subsection (1)-
(7) The Minister may not publish a sectoral determination - (a) covering employees and employers who
are bound by a collective agreement concluded at a bargaining
council; Period of operation of sectoral determination 56. (1) The provisions of a sectoral determination remain binding until they are amended or superseded by a new or amended sectoral determination, or they are cancelled or suspended by the Minister. (2) If a collective agreement contemplated by section 55(6)(a) or (b) is concluded, the provisions of a sectoral determination cease to be binding upon employers and employees covered by the agreement. (3) The Minister, by notice in the Gazette, may- (a) cancel or suspend any provision of a sectoral
determination, either in the sector and area as a
whole or in part of the sector or in a specific area; or (4) Before publishing a notice of cancellation or suspension in terms of subsection (3)(a) the Minister, by notice in the Gazette, must announce the intention to do so, and allow an opportunity for public comment. Legal effect of sectoral determination 57. If a matter regulated in this Act is also regulated in terms of a sectoral determination, the provision in the sectoral determination prevails. Employer to keep a copy of sectoral determination 58. Unless a sectoral determination provides otherwise, every employer on whom the sectoral determination is binding must- (a) keep a copy of that sectoral determination available
in the workplace at all times; (i) to an employee who has paid the prescribed fee; and CHAPTER NINE Employment Conditions Commission Establishment and functions of Employment Conditions Commission 59.(1) The Employment Conditions Commission is hereby established. (2) The functions of the Commission are to advise the Minister- (a) on sectoral determinations in terms of Chapter Eight; (b) on any matter concerning basic conditions of employment; (c)on any matter arising out of the application of this Act; (d)on the effect of the policies of the government on employment; (e)on trends in collective bargaining and whether any of those trends undermine the purpose of this Act; (f)and the Minister for Welfare and Population Development, on any matter concerning the employment of children, including the review of section 43; (g)and the Minister for the Public Service and Administration, on any matter concerning basic conditions of employment in the public service. (3) The Commission may draw up rules for the conduct of its meetings and public hearings. (4) Subject to the laws governing the public service, the Minister must provide the Commission with the staff that the Minister considers necessary for the performance of its functions. (5) The Minister must direct the Director-General to undertake research that is required to enable the Commission to perform its functions. (6) The expenses of the Commission are to be met by money appropriated by Parliament for that purpose and which is subject to audit by the Auditor-General, referred to in section 188 of the Constitution. Composition of Commission 60.(1) The Minister must, after consultation with NEDLAC, appoint as members of the Commission three persons who are knowledgeable about the labour market and conditions of employment, including the conditions of employment of vulnerable and un-organised workers, and designate one of them as the chairperson. (2) The Minister must, in addition, appoint two more members to the Commission (a) one of whom must be nominated by the voting members of NEDLAC representing organized labour; (b) one of whom must be nominated by the voting members of NEDLAC representing organized business. (3) The chairperson and members of the Commission- (a) must be citizens or permanent residents of the Republic; (b) must act impartially when performing any function of the Commission (c) may not engage in any activity that may undermine the integrity of the Commission; and (d) must recuse themselves from advising the Minister on any matter in respect of which they have a direct financial interest or any other conflict of interest. (4) The Minister must determine- (a) the term of office of the chairperson and members of the Commission, which may not be more than three years; (b) with the concurrence of the Minister of Finance, the remuneration and allowances to be paid to members of the Commission; and (c) any other conditions of appointment not provided for in this section. (5) The Minister must appoint a member to act as chairperson whenever (a) the chairperson is absent from the Republic or from duty, or for any reason is temporarily unable to function as chairperson; or (b) the office of chairperson is vacant. (6) A person whose period of office as the chairperson or a member of the Commission has expired is eligible for reappointment. (7) The chairperson or a member of the Commission may resign in writing. (8) The Minister may remove the chairperson or a member of the Commission from office for- (a) serious misconduct; (b) permanent incapacity; or (c) engaging in any activity that may undermine the integrity of the Commission. Public hearings 61. The Commission may hold public hearings at which it may permit members of the public to make oral representations on any matter that the Commission is considering in terms of section 59(2). Report by Commission 62. (1) The Commission's advice to the Minister must be in the form of a written report. (2) The Commission must, when performing any function in terms of section 59(2)(b) to (e), take into account the considerations set out in section 54(3) to the extent that they are appropriate. (3) The members of the Commission must endeavour to prepare a unanimous report to the Minister. If the members are not able to prepare a unanimous report, each member is entitled to have his or her views reflected in the report. Monitoring, enforcement and legal proceedings PART A Monitoring and enforcement Appointment of labour inspectors 63.(1) The Minister may- (a) appoint any person in the public service as a labour inspector; (b) designate any person in the public service, or any person appointed as a designated agent of a bargaining council in terms of section 33 of the Labour Relations Act, 1995, to perform any of the functions of a labour inspector. (2) Any person appointed under subsection (1) must perform his or her functions in terms of this Chapter, subject to the direction and control of the Minister. (3) The Minister must provide each labour inspector with a signed certificate in the prescribed form stating- (a) that the person is a labour inspector; (b) which legislation that labour inspector may monitor and enforce; and (c) which of the functions of a labour inspector that person may perform. Functions of labour inspectors 64.(1) A labour inspector appointed under section 63(1) may promote, monitor and enforce compliance with an employment law by- (a) advising employees and employers of their rights and obligations in terms of an employment law; (b) conducting inspections in terms of this Chapter; (c) investigating complaints made to a labour inspector; (d) endeavouring to secure compliance with an employment law by securing undertakings or issuing compliance orders; and (e) performing any other prescribed function. (2) A labour inspector may not perform any function in terms of this Act in respect of an undertaking in respect of which the labour inspector has, or may reasonably be perceived to have, any personal, financial or similar interest. Powers of entry 65.(I) In order to monitor and enforce compliance with an employment law, a labour inspector may, without warrant or notice, at any reasonable time, enter (a) any workplace or any other place where an employer carries on business or keeps employment records, that is not a home; (b) any premises used for training in terms of the Manpower Training Act, 1981 (Act No. 56 of 1981); or (c) any private employment office registered under section 15 of the Guidance and Placement Act, 1981 (Act No. 62 of 1981). (2) A labour inspector may enter a home or any place other than a place referred to in subsection (1) only- (a) with the consent of the owner or occupier; or (b) if authorised to do so in writing in terms of subsection 3. (3) The Labour Court may issue an authorisation contemplated in subsection (2) only on written application by a labour inspector who states under oath or affirmation the reasons for the need to enter a place in order to monitor or enforce compliance with any employment law. (4) If it is practical to do so, the employer and a trade union representative must be notified that the labour inspector is present at a workplace and of the reason for the inspection. Powers to question and inspect 66.(1) In order to monitor or enforce compliance with an employment law, a labour inspector may- (a) require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on any matter to which an employment law relates, and require that the disclosure be made under oath or affirmation; (b) inspect, and question a person about, any record or document to which an employment law relates; (c) copy any record or document referred to in paragraph (b), or remove these to make copies or extracts; (d) require a person to produce or deliver to a place specified by the labour inspector any record or document referred to in paragraph (b) for inspection; (e) inspect, question a person about, and if necessary remove, any article, substance or machinery present at a place referred to in section 65; (f) inspect or question a person about any work performed; and (g) perform any other prescribed function necessary for monitoring or enforcing compliance with an employment law. (2) A labour inspector may be accompanied by an interpreter and any other person reasonably required to assist in conducting the inspection. (3) A labour inspector must- (a) produce on request the certificate referred to in section 63(3); (b) provide a receipt for any record, document, article, substance or machinery removed in terms of subsection (1)(c) or (e); and (c) returning anything removed within a reasonable period of time. (4) The powers provided for in this Part are in addition to any power of a labour inspector in terms of any other employment law. Co-operation with labour inspectors 67.(1) Any person who is questioned by a labour inspector in terms of section 66 must answer all relevant questions lawfully put to that person truthfully and to the best of his or her ability. (2) Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a labour inspector to perform the labour inspector's functions effectively. Securing an undertaking 68.(1) A labour inspector who has reasonable grounds to believe that an employer has not complied with any provision of this Act must endeavour to secure a written undertaking by the employer to comply with the provision. (2) In endeavouring to secure the undertaking, the labour inspector (a) may seek to obtain agreement between the employer and employee as to any amount owed to the employee in terms of this Act; (b) may arrange for payment to an employee of any amount paid as a result of an undertaking; (c) may, at the written request of an employee, receive payment on behalf of the employee; and Note 12: An answer by a person to a question of a labour inspector may not be used in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement (s.91). Compliance order 69(1) A labour inspector who has reasonable grounds to believe that an employer has not complied with a provision of this Act may issue a compliance order. (2) A compliance order must set out- (a) the name of the employer, and the location of every workplace, to which it applies; (b) any provision of this Act that the employer has not complied with, and details of the conduct constituting non-compliance; (c) any amount that the employer is required to pay to an employee; (d) any written undertaking by the employer in terms of section 68(1) and any failure by the employer to comply with a written undertaking; (e) any steps that the employer is required to take including, if necessary, the cessation of the contravention in question and the period within which those steps must be taken; and (f) the maximum fine that may be imposed upon the employer in accordance with Schedule Two for a failure to comply with a provision of this Act. (3) A labour inspector must deliver a copy of the compliance order to the employer named in it, and to each employee affected by it or, if this is impractical, a representative of the employees. (4) The employer must display a copy of the compliance order prominently at a place accessible to the affected employees at each workplace named in it. (5) An employer must comply with the compliance order within the time period stated in the order unless the employer objects in terms of section 71. Limitations 70. A labour inspector may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with a provision of this Act if (a) the employee is covered by a collective agreement that provides for resolution by arbitration of disputes concerning amounts owing in terms of this Act; (b) the employee is employed in a category of employees mentioned in section 6(1)(a) or in respect of which a notice has been issued in terms of section 6(3) ; (c) any proceedings have been instituted for the recovery of that amount or, if proceedings have been instituted, those proceedings have been withdrawn; or (d) that amount has been payable for longer than 12 months. Objections to compliance order (1) An employer may object to a compliance order by making representations in writing to the Director-General within 21 days of receipt of that order. (2) If the employer shows good cause at any time, the Director-General may permit the employer to object after the period of 21 days has expired. (3) After considering any representations by the employer and any other relevant information, the Director-General- (a) may confirm, modify or cancel an order or any part of an order; and (b) must specify the period within which the employer must comply with any part of an order that is confirmed or modified. .
(b) the likelihood that the employer was aware of the relevant provisions; and (c) the steps taken by the employer to ensure compliance with the relevant provision. |
