Regulations - Basic Conditions of Employment Act

(26 November 2014 – to date)

BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

(Gazette No. 18491, Notice No. 1631. Commencement date: 1 December 1998)

REGULATIONS

Published under Government Notice R1438 in Government Gazette 19453, dated 13 November 1998. Commencement date: 13 November 1998

As amended by:

Government Notice R319 in Government Gazette 23228, dated 22 March 2002. Commencement date: 22 March 2002

Government Notice R936 in Government Gazette 23610, dated 25 July 2002. Commencement date: 25 July 2002

Government Notice R197 in Government Gazette 33018, dated 12 March 2010. Commencement date: 12 March 2010

Government Notice 655 in Government Gazette 37955 dated 29 August 2014. Commencement date:

29 August 2014.

Government Notice R949 in Government Gazette 38250 dated 26 November 2014 and corrected by Government Notice R1010 in Government Gazette 38312 dated 11 December 2014.

Commencement date: 26 November 2014.

The Minister of Labour has, under section 86(1) of the Basic Conditions of Employment Act (Act No. 75 of 1997), and after consulting the Employment Conditions Commission, made the Regulations set out in the Schedule.

CONTENTS OF REGULATIONS

A.      INDEX OF GENERAL ADMINISTRATIVE REGULATIONS

Definitions

Informing employees of their rights

Keeping of Records

Record of Employee's Wages

Written Particulars of Employment

Certificate of Service

Ministerial Determination

Subpoenas

Securing an Undertaking

Compliance Order

…………….

Proof of Service

(“Objections to compliance Order” deleted from the Index of General Administrative Regulations by Government Notice 655 in Government Gazette 37955 dated 29 August 2014)

B.      INDEX OF FORMS ANNEXED TO REGULATIONS

(Index of forms amended by Government Notice R319 in Government Gazette 23228, dated 22 March 2002)

(Index of forms amended by Government Notice R936 in Government Gazette 23610, dated 25 July 2002)

(Forms BCEA 8A & BCEA 13 deleted from the Index of Forms annexed to Regulations by Government Notice 655 in Government Gazette 37955 dated 29 August 2014)

GENERAL REGULATIONS

SCHEDULE

1.       Definitions

(1)      In these regulations any expression that is defined in the Act has that meaning unless the context indicates otherwise -

"the Act" means the Basic Conditions of Employment Act (Act no. 75 of 1997).

"Labour Relations Act" means the Labour Relations Act (Act 66 of 1995).

"form" means a document attached to these regulations.

(2)      Whenever the expression "Department of Labour" or "Chief Director Provincial Operations" appears in the Act or in these regulations, it means-

(a)      In the province of Eastern Cape, the Chief Director Provincial Operations, Department of Labour, Private Bag X9005, East London. 5200;

(b)      In the province of Free State, the Chief Director Provincial Operations, Department of Labour, PO Box 522, Bloemfontein. 9300;

(c)      In the province of Gauteng, the Chief Director Provincial Operations, Department of Labour, PO Box 4560, Johannesburg. 2000;

(d)      In the province of KwaZulu Natal, the Chief Director Provincial Operations, Department of Labour, PO Box 940, Durban. 4000;

(e)      In the province of Limpopo, the Chief Director Provincial Operations, Department of Labour, Private Bag X9368, Polokwane. 0700

(f)      In the province of Mpumalanga, the Chief Director Provincial Operations, Department of Labour, Private Bag X7263, Witbank. 1035

(g)      In the province of Northern Cape, the Chief Director Provincial Operations, Department of Labour, Private Bag X5012, Kimberley. 8300

(h)      In the province of North West, the Chief Director Provincial Operations, Department of Labour, Private Bag X2040, Mmabatho, 2735

(i)       In the province of Western Cape, the Chief Director Provincial Operations, Department of Labour, PO Box 872, Cape Town. 8000.

(Clause 1(2) substituted by Government Notice R319 in Government Gazette 23228, dated 22 March 2002)

(Clause 1(2) substituted by Government Notice 655 in Government Gazette 37955 dated 29 August 2014)

2.       Informing employees of their rights

An employer must keep the statement of employees rights referred to in section 30 of this Act in the form of BCEA 1 in all official languages.

3.       Keeping of Records

(1)      The record that an employer is required to keep in terms of section 31 must comprise

(a)      a wages register in the form of BCEA 2 or some other record that contains the information set out in that form; and

(b)      an attendance register in the form of BCEA 3 or some other record that contains the information set out in that form.

4.       Record of employee's wages

The information about remuneration that an employer is required to give an employee in terms of section 33 of the Act must be given in the form of BCEA 4, or contain the information required by that form.

5.       Written particulars of employment

Within six months of the date on which the Act comes into effect, an employer must give an employee who was in employment on that date the written particulars of employment required by Section 29.

6.       Certificate of service

The certificate of service that an employer is required to give an employee in terms of section 42 must be given in the form of BCEA 5, or contain the information required by that form.

7.       Ministerial determination

An application for a Ministerial determination in terms of Section 50(1)(b) of the Act must be in the form of BCEA 6, or contain the information by that form. A Ministerial determination must be issued in the form of BCEA 7, or contain the information required by that form.

8.       Subpoenas

(1)      For the purpose of performing the functions referred to in section 66 of the Act, a labour inspector may—

(a)      subpoena for questioning any person who may be able to give information or whose presence may help the inspector in performing the inspector's functions;

(b)      subpoena any person who is believed to have possession or control of any book, document or object relevant to an inspection or investigation to appear before the inspector to be questioned or to produce that book, document or object;

(c)      call, and if necessary subpoena, any expert to appear before the inspector to give evidence relevant to an inspection or investigation;

(d)      call any person present at an inspection or investigation who was or could have been subpoenaed for any purpose set out in these regulations, to be questioned about any matter relevant to an inspection or investigation;

(e)      administer an oath or accept an affirmation from any person called to give evidence or be questioned;

(f)      examine, demand the production of, and seize any book, document or object that is on or in those premises an [sic] that is relevant to an inspection or investigation;

(g)      take a statement in respect of any matter relevant to an inspection of investigation from any person on the premises who is willing to make a statement; and

(h)      inspect, and retain for a reasonable period, any of the books, documents, or objects that have been produced to, or seized by, the inspector.

(2)      A subpoena issued in terms of sub-regulation (1) must be made in the form of BCEA 8.

(3)      A subpoena issued for any purpose in terms of sub-regulation (1) must be signed by the Director General or a person authorised by the Director-General and must -

(a)      specifically require the person named in it to appear before the inspector;

(b)      sufficiently identify the book, document or object to be produced; and

(c)      state the date, time and place at which the person is to appear.

9.       Securing an undertaking

(1)      Any undertaking secured by a labour inspector in terms of section 68(2) of the Act must be in the form of BCEA 9 or contain the information required by that form.

(2)      A receipt for any payment in terms of section 68(2)(d) of the Act must be in the form of BCEA 10 or contain the information required by that form.

(3)      A receipt for any record, document, article, substance or machinery removed in terms of section 66(3)(b) must be in the form of BCEA 11 or contain the information required by that form.

(Clause 9 substituted by Government Notice R936 in Government Gazette 23610, dated 25 July 2002)

(Clause 9 substituted by Government Notice 655 in Government Gazette 37955 dated 29 August 2014)

10.     Compliance order

A compliance order issued by a labour inspector in terms of Section 69 of the Act must be in the form of BCEA 12 or contain the information set out in that form.

11.     ……….

(Clause 11 deleted by Government Notice 655 in Government Gazette 37955 dated 29 August 2014)

12.     Proof of service

Whenever a party is required to satisfy any person that a copy of a referral, objection or other document has been served on another party, that party may do so by providing -

(a)      a copy of the proof of mailing the referral, objection or other document by registered post to the other party;

(b)      a copy of the telegram, telex or telefax including proof of transmission, communicating the referral, objection or other document to the other party;

(c)      a copy of a receipt signed by the other park or on that party's behalf if the copy of the referral, objection or other document was delivered by hand; or

(d)      a statement confirming service signed by the person who delivered a copy of the referral objection or other party.

13.        Inspector certificates in terms of section 63

(1)      A certificate issued to a labour inspector in terms of section 63(3) must be in the form of Annexure 14A

(2)      Every labour inspector who is issued with a certificate in terms of sub-regulation (1) must also be issued with a certificate in the form of an inspector card in the form of Annexure 14B

(3)      Production of a certificate by a labour inspector in the form of either Annexure 14A or Annexure 14 B constitutes

(a)      Proof that the person identified in the certificate is a labour inspector:

(b)      Compliance with a request for the productions of a certificate in terms of section 65(3)(a) of the Act.

(Clause 13 inserted by Government Notice R319 in Government Gazette 23228, dated 22 March 2002)

BCEA 1A

(Regulation 2)

BASIC CONDITIONS OF EMPLOYMENT ACT, 1997

SUMMARY TO BE KEPT BY AN EMPLOYER IN TERMS OF SECTION 30

The following is a summary of the provisions of the most important sections of the Basic Conditions of Employment Act, 1997, as amended.

1.       APPLICATION OF THE ACT: SECTION 3

The Act applies to all employees and employers except members of the State Security Agency and unpaid volunteers working for an organisation with a charitable purpose.

The basic conditions of employment contained in the Act form part of the contract of employment of employees covered by the Act. Some, but not all, basic conditions of employment may be varied by individual or collective agreements in accordance with the provisions of the Act. (See paragraph 7 below).

2.       REGULATION OF WORKING TIME: CHAPTER TWO

2.1     Application

This chapter does not apply to senior managerial employees, employees engaged as sales staff who travel and employees who work less than 24 hours a month.

2.2     Ordinary hours of work: Section 9

No employer shall require or permit an employee to work more than-

(a)      45 hours in any week;

(b)      nine hours in any day if an employee works for five days or less in a week; or

(c)      eight hours in any day if an employee works on more than five days in a week.

2.3     Overtime: Section 10

2.3.1 An employer may not require or permit an employee-

(a)      to work overtime except by an agreement;

(b)      to work more than ten hours' overtime a week.

2.3.2 An agreement may not require or permit an employee to work more than 12 hours on any day.

2.3.3 A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months.

2.3.4 Overtime must be paid at 1.5 times the employee's normal wage or an employee may agree to receive paid time off.

2.4     Compressed working week: Section 11

2.4.1 An employee may agree in writing to work up to 12 hours in a day without receiving overtime pay.

2.4.2 This agreement may not require or permit an employee to work-

(a)      more than 45 ordinary hours in any week;

(b)      more than ten hours' overtime in any week; or

(c)      more than five days in any week.

2.5     Averaging of hours of work: Section 12

2.5.1 A collective agreement may permit the hours of work to be averaged over a period of up to four months.

2.5.2 An employee who is bound by such a collective agreement may not work more than-

(a)      an average of 45 ordinary hours in a week over the agreed period;

(b)      an average of five hours' overtime in a week over the agreed period.

2.6     Meal intervals: Section 14

2.6.1 An employee must have a meal interval of 60 minutes after five hours work.

2.6.2 A written agreement may-

(a)      reduce the meal interval to 30 minutes;

(b)      dispense with the meal interval for employees who work fewer than six hours on a day.

2.7     Daily and weekly rest period: Section 15

An employee must have a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which, unless otherwise agreed, must include Sunday.

2.8     Pay for work on Sundays: Section 16

2.8.1 An employee who occasionally works on a Sunday must receive double pay.

2.8.2 An employee who ordinarily works on a Sunday must be paid at 1.5 times the normal wage.

2.8.3 Paid time off in return for working on a Sunday may be agreed upon.

2.9     Night work: Section 17

2.9.1 Employees who work at night between 18h00 and 06h00 must be compensated by payment of an allowance or by a reduction of working hours and transport must be available.

2.9.2 Employees who work regularly after 23:00 and before 06:00 the next day must be informed-

(a)      of any health and safety hazards; and

(b)      the right to undergo a medical examination.

2.10   Public holidays: Section 18

2.10.1   Employees must be paid their ordinary pay for any public holiday that falls on a working day.

2.10.2   Work on a public holiday is by agreement and paid at double the rate.

2.10.3   A public holiday may be exchanged with another day by agreement.

3.       LEAVE: CHAPTER THREE

3.1     Application

The chapter on leave does not apply to an employee who works less than 24 hours a month for an employer and to leave granted in excess of the leave entitlement under this chapter.

3.2     Annual leave: Sections 20 & 21

3.2.1 Employees are entitled to 21 consecutive days' annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.

3.2.2 Leave must be granted not later than six months after the end of the annual leave cycle.

3.2.3 An employer must not pay an employee instead of granting leave except on termination of employment.

3.3     Sick leave: Sections 22 - 24

3.3.1 An employee is entitled to six weeks' paid sick leave in a period of 36 months.

3.3.2 During the first six months an employee is entitled to one day's paid sick leave for every 26 days worked.

3.3.3 An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.

3.4     Maternity leave: Sections 25 & 26

3.4.1 A pregnant employee is entitled to four consecutive months' maternity leave.

3.4.2 A pregnant employee or employee nursing her child is not allowed to perform work that is hazardous to her or her child.

3.5     Family responsibility leave: Section 27

3.5.1 Full time employees are entitled to three days paid family responsibility leave per year, on request, when the employee's child is born or sick, or in the event of the death of the employee's spouse or life partner, or the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

3.5.2 An employer may require reasonable proof.

4.       PARTICULARS OF EMPLOYMENT AND REMUNERATION: CHAPTER FOUR

4.1     Application

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

4.2     Written particulars of employment: Section 29

4.2.1 An employer must supply an employee when the employee commences employment, with the following particulars in writing:

(a)      full name and address of the employer;

(b)      name and occupation of the employee, or a brief description of the work;

(c)      various places of work;

(d)      date of employment;

(e)      ordinary hours of work and days of work;

(f)      wage or the rate and method of calculating;

(g)      rate for overtime work;

(h)      any other cash payments;

(i)       any payment in kind and the value thereof;

(j)       frequency of remuneration;

(k)      any deductions;

(I)       leave entitlement;

(m)     period of notice or period of contract;

(n)      description of any council or sectoral determination which covers the employer's business;

(o)      period of employment with a previous employer that counts towards the period of employment;

(p)      list of any other documents that form part of the contract, indicating a place where a copy of each may be obtained.

4.2.2 Particulars must be revised if the terms of employment change.

4.3     Informing employees of their rights: Section 30

A statement of employees' rights must be displayed at the workplace in official languages used at the workplace.

4.4     Keeping of records: Section 31

Every employer must keep a record containing the following information:

(a)      employee's name and occupation;

(b)      time worked;

(c)      remuneration paid;

(d)      date of birth if under 18 years of age; and

(e)      any other prescribed information.

4.5     Information about remuneration: Section 33 and 33A

4.5.1  The following information must be given in writing when the employee is paid:

(a)      employer's name and address;

(b)      employee's name and occupation;

(c)      period of payment;

(d)      remuneration in money;

(e)      any deduction made from the remuneration;

(f)      the actual amount paid; and

(g)      if relevant to the calculation of that employee's remuneration-

(i)       employee's rate of remuneration and overtime rate;

(ii)      number of ordinary and overtime hours worked during the period of payment;

(i)       number of hours worked on a Sunday or public holiday during that period; and

(ii)      if an agreement to average working time has been concluded, the total number of ordinary and overtime hours worked in the period of averaging.

(Publisher’s note – Numbering as published in Government Gazette No. 38312)

4.5.2 An employer may not:

(a)      require or accept any payment by or on behalf of an employee or potential employee in respect of the employment of, or the allocation of work to, any employee.

(b)      require an employee or potential employee to purchase any goods, products or services from the employer or from any business or person nominated by the employer.

4.6     Deductions and other acts concerning remuneration: Sections 34 and 34A

4.6.1 An employer may not deduct money from an employee's remuneration unless-

(a)      The employee agrees in writing to the deduction of a specific debt;

(b)      The deduction is made in terms of a collective agreement, law, court order or arbitration award

4.6.2 A deduction in respect of damage or loss caused by the employee may only be made after the employer has followed a fair procedure

4.6.3 Employers must pay deductions and employer contributions to benefit funds to the fund within seven days.

4.7     Calculation of remuneration and wages: Section 35

4.7.1 Wages are calculated by the number of hours ordinarily worked.

4.7.2 Monthly remuneration or wage is four and one-third times the weekly wage.

4.7.3 If calculated on a basis other than time, or if the employee's remuneration or wage fluctuates significantly from period to period, any payment must be calculated by reference to remuneration or wage during-

(a)      the preceding 13 weeks; or

(c)      if employed for a shorter period, that period.

(Publisher’s note – Numbering as published in Government Gazette No. 38312)

4.7.4 Employers and employees should consult a schedule published in the Government Gazette to determine whether a particular category of payment forms part of an employee's remuneration for the purpose of calculations made in terms of this Act.

5.       TERMINATION OF EMPLOYMENT: CHAPTER FIVE

5.1     Application

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

5.2     Notice of termination of employment: Section 37

5.2.1 A contract of employment may be terminated on notice of not less than -

(a)      one week, if the employee has been employed for six months or less;

(b)      two weeks, if the employee has been employed for more than six months but not more than one year;

(c)      four weeks, if the employee has been employed for one year or more, or if a farm worker or domestic worker has been employed for more than six months.

5.2.2 A collective agreement may shorten the four weeks notice period to not less than two weeks.

5.2.3 Notice must be given in writing except when it is given by an illiterate employee.

5.2.4 The notice on termination of employment by an employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal in terms of the Labour Relations Act, 1995 or any other law.

5.3     Severance pay: Section 41

An employee dismissed for operational requirements or whose contract of employment is terminated in terms of section 38 of the Insolvency Act, 1936 is entitled to one week's severance pay for every year of service.

5.4     Certificate of Service: Section 42

On termination of employment an employee is entitled to a certificate of service.

6.       PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR: SECTIONS 43 - 48

6.1     It is a criminal offence to require or permit a child to work under 15 years of age.

6.2     Children under 18 may not be required or permitted to perform work or provide services that are inappropriate for their age or that place them at risk.

6.3     Causing, demanding or requiring forced labour is a criminal offence.

7.       VARIATION OF BASIC CONDITIONS OF EMPLOYMENT: SECTIONS 49 - 50

7.1     A collective agreement concluded by a bargaining council may replace or exclude any basic condition of employment except the following:

(a)      the duty to arrange working time with regard to the health and safety and family responsibility of employees (S. 7, 9 and 13);

(b)      reduce the protection afforded to employees who perform night work(S. 17(3) and (4));

(c)      reduce annual leave to less than two weeks (S. 20);

(d)      reduce entitlement to maternity leave (S 25);

(e)      reduce entitlement to sick leave to the extent permitted (S. 22-24); and

(f)      prohibition of child and forced labour (S. 48).

7.2     Collective agreements and individual agreements may only replace or exclude basic conditions of employment to the extent permitted by the Act or a sectoral determination (S. 49).

7.3     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 (S. 50).

7.4     A determination may not be granted unless a trade union representing the employees has consented to the variation or has had the opportunity to make representations to the Minister. A copy of any determination must be displayed by the employer at the work place and must be made available to employee's (S. 50).

8.       SECTORAL DETERMINATIONS: SECTION 51

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

9.       MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS: SECTIONS 63 - 81

9.1     Labour inspectors must advise employees and employers on their rights and obligations in terms of employment laws. They conduct inspections, investigate complaints and may question persons and inspect, copy and remove records and other relevant documents (S. 64 - 66).

9.2     An inspector may serve a compliance order on an employer who is not complying with a provision of the Act. The order may be made an order of the Labour Court. (S. 68 - 73)

9.3     Employees may not be discriminated against for exercising their rights in terms of the Act (S. 78 - 81).

10.     PRESUMPTION AS TO WHO IS AN EMPLOYEE: SECTION 83A

10.1   A person who works for, or provides services to, another person is presumed to be an employee if -

(a)      his or her manner or hours of work are subject to control or direction;

(b)      he or she forms part of the employer's organisation;

(c)      he or she has worked for the other person for at least 40 hours per month over the previous three months;

(d)      he or she is economically dependant on the other person;

(e)      he or she is provided with his or her tools or work equipment; or

(f)      he or she only works for, or renders service to, one person.

10.2   If one of these factors is present, the person is presumed to be an employee until the employer proves that he or she is not.

11.     GENERAL

It is an offence to-

(a)      obstruct or attempt to influence improperly a person who is performing a function in terms of the Act;

(b)      obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document;

(c)      pretend to be a labour inspector or any other person performing a function in terms of the Act;

(d)      refuse or fail to answer, fully any lawful question put by a labour inspector or any other person performing a function in terms of the Act;

(e)      refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of the Act;

(f)      hinder or obstruct a labour inspector or any other person performing a function in terms of the Act. (S. 92)

(Summaries in all official languages (BCEA 1A to 1K) substituted by Government Notice R936 in Government Gazette 23610, dated 25 July 2002)

(Summary (BCEA 1A) substituted by Government Notice R197 in Government Gazette 33018, dated 12 March 2010)

(Summaries in all official languages (BCEA 1A to BCEA 1K) substituted by Government Notice 655 in Government Gazette 37955 dated 29 August 2014)

(Summary of BCEA 1A substituted by Government Notice R949 in Government Gazette 38250 dated 26 November 2014 and corrected by Government Notice R1010 in Government Gazette 38312 dated 11 December 2014)

(Please note that the “Summary to be kept by an Employer in terms of section 30” (BCEA 1), is available in all the official languages. Copies of these and other forms in the schedule will be provided upon request. Kindly refer to our website for our contact details.)