Summary of the Basic Conditions of Employment Act, no. 75 of 1997

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This Act regulates labour practices and sets out the rights and duties of employees and employers. The aim of the Act is to ensure social justice by establishing the basic standards for employment with regard to working hours, leave, payment, dismissal and dispute resolution.

Contents

[edit] Who Does the Law Affect?

The Act applies to all employers and employees (except for members of the South African National Defence Force, the National Intelligence Agency, the South African Secret Service, persons employed at sea or persons working as unpaid volunteers). It also applies to anybody who is doing vocational training. If a person (not an independent subcontractor) works for a temporary employment service, the temporary employment service is their employer.


[edit] What Does the Law Say About Working Hours?

The general principle is that the longest an employee can be expected to work is 45 hours in a week, and working time must take account of their health and safety as well as their family responsibilities. The conditions for working hours must be agreed upon. In a five-day working week, the maximum is nine hours a day. In a six- or seven-day working week, the maximum is eight hours per day. (This doesn’t apply to senior managers, travelling sales representatives and people who work for less than 24 hours in a month.)

If it is agreed, people who serve the public may work an extra 15 minutes per day (but no more than 60 minutes a week) in order to complete their duties.

If an employee works for less than five days a week, he or she can work up to 12 hours, and a person may also agree to work longer hours over a period of time, and then take time off. This is called ‘averaging’, as the average working week over the period may not be more than 45 hours per week, plus five hours’ overtime.

Laws That Can’t Be Changed

Many minimum standards can be changed, if the employer and employee agree to it, but the following will not be allowed:

  • employing children under the age of 15
  • forced labour
  • limiting of health and safety protection in any way, including night workers
  • limiting family responsibility leave
  • annual leave of less than two weeks, and
  • limiting maternity and sick leave

The State may adjust the laws for working hours for different categories of employment (e.g. mining) on the grounds of health and safety. There are also special laws for people who work at night.

[edit] When Is a Person Entitled to a Break?

After five hours of work, an employee can take a one-hour meal break, which may be reduced, but not to less than half an hour. You can only agree to take no break if you work for less than six hours a day.

A person must have at least 12 hours off between two working days, and once a week, a rest period of at least 36 hours must be allowed, (but this can also be averaged).

[edit] What Happens When You Work for Longer Hours or on a Sunday?

Working for longer hours is called overtime, and, according to the Act, an employee may not be forced to work overtime, but the employer and employee must agree on this, as the job may require additional hours. Even then, the employee may not work more than 10 hours overtime a week. A collective agreement may increase the maximum permitted overtime to 15 hours a week. Weekly overtime pay during the week is 1½ times normal pay. (This means that if you earn R50 an hour, overtime pay is R75 an hour.) This does not apply, however, if an employer has less than 10 people working for him or her – then overtime pay is 1⅓. Overtime pay for Sundays or public holidays is double if you don’t normally work on Sundays: you may get time off instead of being paid extra, but on the same principle. If you work one Sunday at normal pay, you may also get one day off. If Sunday is a normal working day for you, you must be paid 1½ times more than normal. The employer and employee must agree on the exchange time.

[edit] What Does the Law Say About Leave?

There are various types of leave for employees who work for more than 24 hours a month:

[edit] Annual Leave

All employees who work for more than 24 hours a month are entitled to take 21 days of paid leave every year. This should be taken within six months after the end of the working year, and the employee can either take time off as one holiday or at different times (e.g. 10 days at one time and 11 days later in the year). Public holidays do not count as part of annual leave, and the employee must be granted an additional day of leave if a public holiday falls during their annual leave.

[edit] Sick Leave

Paid sick leave is determined by the number of days you normally work in six weeks per 36-month cycle. An employee is allowed one day’s sick leave for every 26 days worked during the first six months of employment. If an employee takes sick leave for more than two consecutive days or more than twice in eight weeks, the employer can insist on a medical certificate. If an employee is injured or becomes ill because of their working conditions, they are entitled to extra sick leave.

[edit] Maternity Leave

A pregnant employee must tell her employer when she will take maternity leave, and the employer then has to keep her position open. Women have the right to take up to four months of maternity leave (from four weeks before the expected date of birth). If there is no agreement on paid maternity leave, she may not insist on a salary and has to claim unemployment benefits.

An employee cannot work for the first six weeks after the birth, unless a medical practitioner has said that she is fit to do so. An employee who is pregnant or breastfeeding may not perform work that could endanger her or her child’s health.

[edit] Family Responsibility Leave

Full-time employees who have been employed for more than four months are allowed to take up to three days of paid family responsibility leave every year, but an employer can ask for proof that the leave was needed. This benefit is available to both men and women, married or unmarried and may be taken when:

  • a male employee’s child is born;
  • any employee’s child is sick; and
  • when an employee’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling dies.

[edit] Contracts and Payslips

All employers who have more than five employees must give each employee a written description of the details of their work (a contract of employment), including information on all of the following:

  • the employer’s full name and address and the place of work
  • the name, occupation and job description of the employee
  • the starting date for employment
  • the ordinary hours and days of work, wages and overtime rates (and date of payment)
  • any benefit details, details of payment in kind and details of any deductions
  • leave entitlements
  • notice periods for termination of employment, and
  • a description of any council or sectoral determination that covers the employer’s business

Employers must keep records of every employee’s name and position, time worked and any money paid for the work. Employees must be paid in cash, by cheque or by means of direct deposit into a nominated bank account, in South African currency. Written payslips must be given to all employees, and if any deductions are made, this must be indicated and the reason for the deduction must be indicated.

[edit] Termination of Employment

There are various laws that govern dismissal or termination of employment. These protect employees who work for more than 24 hours in a month. Some of the laws are listed in this Act, while others are entrenched by the Labour Relations Act.

[edit] What Does the Law Say About Notice Periods?

Employers must give employees notice in writing (or verbally if they are illiterate), and employees must be paid during the notice period. Employers may decide to pay an employee without their working for the notice period. The periods of notice can be shortened in the contract of employment, but the general requirements are as follows:

Period of employmentNotice period required
Less than six monthsOne week
Six months to one yearTwo weeks
One year or moreFour weeks
Domestic or farm workers of more than six monthsFour weeks


If an employee lives in accommodation provided by the employer, they are entitled to stay there for one month.

[edit] Payment

Compensation for any accumulated leave and/or time off must be given to the employee at the end of the period of employment.

If employees are dismissed because of “operational requirements” (i.e. because of the economic, technological or structural needs of the employer), and they refuse reasonable alternative offers of employment, they are entitled to the equivalent of one week’s salary for every year that they have worked for the employer.

[edit] Certificate of Service

When an employee leaves, he or she is entitled to a certificate of service, stating:

  • the employee’s full name, job description and period of employment (dates)
  • the employer’s name and address
  • the earnings and fringe benefits during the last payment cycle, and
  • the reason for termination (if requested by the employee).

[edit] Employment of Children and Forced Labour

No child under the age of 15 may be employed and no child under the minimum school-leaving age in terms of any law, if this is 15 or older, may be employed. A child must not do work that is inappropriate for their age, or that places their well-being, education, physical or mental health and spiritual, moral or social development at risk. The onus is on the employer to prove that he or she investigated and found that the child was old enough to be an employee. All forced labour is prohibited. If an employer is found guilty of these offences, they can sentenced to up to three years’ imprisonment.

[edit] What Are Sectoral Determinations?

A sectoral determination is a set of labour laws that apply only to a particular employment sector (e.g. mining and domestic work are governed by special labour laws). The State has the right to make various employment conditions valid for certain sectors only, but it must make its intention to do so public and it must undertake a thorough investigation before doing so. After investigating and making a sectoral determination, basic conditions such as remuneration, hours of work, minimum standards, training, travelling and other allowances will be set and will apply to all or some of the employees in that employment sector.

If it applies, every employer must keep a copy of this sectoral determination and make it available for inspection by an employee.

[edit] Making Employers Obey the Law

Every employee has the right to:

  • Lodge a complaint with a labour inspector or trade union
  • Discuss their contract of employment with another person
  • Refuse to comply with any instruction that is contrary to the Act, or that is included in their contract that is not compliant with the Act
  • Inspect any record relating to their employment
  • Request a trade union representative or labour inspector to inspect any record

These rights are protected, and no one may prevent an employee, including a former employee, from lodging any complaint. And no person may prejudice an employee because of any action taken in terms of the Act.

[edit] How Do Labour Inspectors Help?

The State may appoint a number of labour inspectors to help monitor and enforce the basic conditions of employment and the various sectoral determinations. Labour inspectors may enter any workplace as long as it is a reasonable time of day. They do not need to tell the employer that they intend to visit, nor do they need a warrant. (But entering a home or other place may only be done with the consent of the owner or occupier, or if authorised by the Labour Court.) Labour inspectors must have signed certificate stating their position and functions and which legislation they are allowed to monitor and enforce.

Labour inspectors have the power to question, inspect and copy any records, as long as they give the employer a receipt for anything taken and return it within a reasonable period of time.

It is an offence to refuse to co-operate with a labour inspector or to provide him or her with false information, and offenders can be imprisoned for up to one year.

Compliance Orders

If the labour inspector thinks that an employer is not obeying any section of the Employment Act, either they may get the employer to undertake to obey the law or they may issue a compliance order, giving the employer a prescribed period of time in which to comply. The compliance order must be given to both the employer and any affected employees and it must be displayed in the workplace. An employer may object to the compliance order to the Director of Labour within 21 days of receipt of that order. If the Director-General enforces the compliance order, the employer can lodge an appeal with the Labour Court.

[edit] Disputes and Legal Proceedings

Disputes about working conditions and basic conditions of employment can be referred any bargaining or statutory council or to the CCMA. An inspector will investigate the case and order compliance by the employer or, if necessary, refer the dispute to the CCMA.

If the dispute remains unresolved, it will be referred to the Labour Court.

The Court can order the employer to comply and/or to pay any outstanding amounts owed to an employee (as long as the debt is not older than one year). The Act also outlines the maximum permissible fines for not obeying laws.

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