1.

Title of the Act:

Basic Conditions of Employment Act, 1997

2. Last amendment date

2002

3. Date of summary
March 2005

4. Purpose
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.

5. Overview
A basic condition of employment constitutes a term of any contract of employment
except to the extent that:

• Any other law provides a term that is more favourable to the employee;
• The basic condition of employment has been replaced, varied, or excluded
in accordance with the provisions of this Act; or
• A term of the contract of employment is more favourable to the employee
than the basic condition of employment.

The Act and anything done in terms of it takes precedence over any agreement,
whether entered into before or after the commencement of the Act

Chapter 2:

Regulation of working time: In terms of section 7, which applies to all employees,

employers must regulate the working time of each employee:

• In accordance with the provision of any Act governing occupational health

and safety;
• With due regard to the health and safety of employees;
• With due regard to the Code of Good Practice on the Regulation of
working time which was issued by the Minister;
• With due regard to the family responsibilities of employees.

The rest of the provisions of this chapter do not apply to senior managerial employees,
sales staff who visit the premises of customers and who regulate their own hours of
work, and employees who work for less than 24 hours per month.

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Ordinary hours of work: An employer may not require or permit an employee to work
more than 45 hours per week and nine hours in any day for an employee who works
five days or less per week, or eight hours in any day for an employee who works more
than five days a week. An agreement may extend these hours in accordance with the
provisions of the Act. Provision is also made for work which needs to be done without
delay due to unforeseen circumstances.

Overtime: Overtime may only be worked by agreement. In this regard agreements

lapse after certain time periods. Overtime is also limited to ten hours per week.
Overtime pay is at least one and one- half times the employee’s wage but an
agreement may provide for paid time off in lieu of such payment.
An agreement may also allow for a compressed working week.

Averaging of hours of work: In terms of a collective agreement, hours of work may

be averaged over a period of up to four months. The Act does however lay down
limitations in this regard.

Determination of hours of work by the minister: The Minister may regulate the
maximum permitted hours of work, including overtime, that any category of employee
may work on the grounds of health and safety.

Meal intervals: These are to be granted after a certain number of continuous hours
worked. This may be varied by written agreement. Payment is due only in instances
where an employee is to be available to work or for the portion of the interval that
exceeds 75 minutes. An employee may be expected to work during a meal interval to
perform duties that cannot be left unattended.

Daily and weekly rest periods: Daily and weekly rest periods are provided for and
again, may be varied slightly by agreement.

Sunday work: A distinction in payment is made between employees who ordinarily

work on a Sunday and those who do not. The later receive double time and the former,
time and one-half. Pay will vary according to the time worked with a minimum of a
normal day’s wage being payable. By agreement, paid time off may also be granted in
lieu of payment.

Night work: This is performed between 18h00 and 06h00. Certain provisions are
applicable here, most notably the availability (not necessarily provision) of
transportation, and obligations imposed on the employer in terms of health and safety
for employees who undertake night work on a regular basis.

Public holidays: This may only be worked by agreement. As with Sunday work, a
premium is placed on working such days. The calculations differ according to whether
it falls on what would have been normal working day or not, and obviously whether or
not the employee actually works.

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Chapter 3 - Leave

This chapter does not apply to employees who work less than 24 hours per month.

Annual leave: The Act stipulates annual leave to be at least 21 consecutive days (15
working days) per annual leave cycle. This may be varied by agreement and be
calculated at 1 day’s leave for every 17 days worked, or one hour’s leave for every 17
hours worked. Leave must be taken within 6 months of it becoming due.

Sick leave: This is granted within a 36 month cycle and entitlement is dependent on
the number of days an employee would normally work within a 6 week period. The
Act limits sick leave within the first 6 months of employment and also stipulates when
a sick note is necessary in order to prove incapacity.

Maternity leave: An employee is entitled to at least 4 consecutive month’s maternity

leave and the Act stipulates when this may start and end. An employee may not work
for 6 weeks after the birth of a child, unless a doctor or midwife certifies that she is fit
to do so. In the case of a miscarriage or stillbirth, the employee is also entitled to 6
weeks maternity leave following the event.

Protection of employees before and after birth: This section makes provision for the
protection of a woman who is either pregnant or is nursing a child in terms of work
that may be hazardous to either her or her child.

Family responsibility leave: This is granted to employees who have been in

employment for at least 4 months and who work at least 4 days per week. The Act sets
out the circumstances when such leave may be taken and limits it to three days per
annual leave cycle.

Chapter 4 – Particulars of employment and remuneration

This chapter sets out the information that must be provided to an employee in writing
and is applicable for all employees who work more than 24 hours per month. Included
in these particulars of employment are factors such as leave entitlement and rate of
pay. In all, the Act stipulates 16 particulars which must be provided.

An employer must also display a statement of the employees’ rights in terms of the
Act, in the required form, in the workplace where it is accessible to the workers.

The Act specifies how and where employees may be remunerated as well as how the
remuneration should be calculated.

Various information must also be given to the employee in writing on each day that
the employee is paid. Such information includes, inter alia, issues such as the number
of hours worked, the amount paid to the employee, and the employer’s details.

Deductions are forbidden unless the employees agrees in writing to such deduction or
a law, collective agreement, court order or arbitration award, requires or permits such
deduction. Provision is made for circumstance when deductions may be made loss or
damage caused by the employee.

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Chapter 5: Termination of employment

Notice periods are determined by the amount of time an employee has been working
for the employer. Collective agreements may provide for shorter periods, within
certain parameters. Payment in lieu of notice may be made.

For employees dismissed for operational requirements, severance pay must be equal to
at least one week’s remuneration for each completed year of continuous service with
the employer. Operational requirements is defined as “requirements based on the
economic, technological, structural or similar needs of an employer”.
An employee who unreasonably refuses to accept the employer’s offer of alternative
employment with the employer or any other employer, is not entitled to severance pay
in terms of the Act.
On termination the employee is entitled to a certificate of service and if so requested,
the reasons for termination.

Chapter 6: Prohibition of employment of children and forced labour

Children under 15 years of age, or under the minimum school leaving age if this is 15
or older, may not be employed. In addition a child may not be employed in work that
is inappropriate for the child’s age, or work which puts at risk the child’s well-being,
education, physical or mental health, or spiritual, moral or social development.

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.

All forced labour, subject to the Constitution, is prohibited.

Chapter 7: Variation of Basic Conditions of Employment

Basic conditions may be varied by collective agreement concluded in a bargaining

council subject to the proviso that certain minimum standards and rights may not be
altered. The Minister may also make determinations to replace or exclude any basic
condition in the Act in respect of categories of employers or employees or any
employer or employee on application. Basic conditions which cannot be affected by
such a determination are those which concern hours of work and the employment of
children, although children may be allowed to perform in advertising, sports, artistic or
cultural activities.
Any determination must be made on the advice of the Employment Conditions
Commission and must be published in the Government Gazette.

Chapter 8: Sectoral determinations

The Minister may make Sectoral Determinations to establish basic conditions of

employment for employees in a sector and area. Before doing so the Minister must
direct the Director-General to investigate conditions of employment in the sector and
area concerned. Employers’ organisations and trade unions can also request the
Minister to investigate conditions of employment in their sector or area. After
investigation, the Director- General must submit a report to the Employment
Conditions Commission which will then consider the report and advise the Minister on
publication of a Sectoral Determination.

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The chapter sets out various issues which the Commission must consider when
advising the Minister and also stipulates what a determination may specify or vary. It
also forbids a determination to be made in certain situations such as covering
employees or employers who are bound by a collective agreement made in a
bargaining council.

Chapter 9: Employment Conditions Commission

The Act sets out the composition of the commission, whose functions are to advise the
Minister:

• on sectoral determinations;
• on any matter concerning basic conditions of employment;
• on any matter arising out of the Act;
• on the effect of government employment policies;
• on trends in collective bargaining and whether any of those trends
undermine the purpose of the Act;
• (the Minister of Welfare and Population development) on any matter
concerning the employment of children;
• (the Minister of Public Service and Administration) on any matter
concerning basic conditions of employment in the public service.

Chapter 10: Monitoring enforcement and legal proceedings

The Minister may appoint labour inspectors whose functions are to:

• advise employees and employers of their rights and obligations in terms of

an employment law;
• conduct inspections in terms of this Chapter;
• investigate complaints made to a labour inspector;
• endeavor to secure compliance with an employment law by securing
undertakings or issuing compliance orders; and
• perform any other prescribed function.

The chapter covers the inspectors’ powers of entry to the workplace, powers to
question and inspect, to secure a written undertaking to comply and ultimately to issue
a compliance order against an employer. Certain limitations are imposed on the issuing
of a compliance order. Further, objections may be made against compliance orders and
appeals may ultimately be made to the Labour Court. Compliance orders may also be
made an order of the court.

Part C of the chapter sets out the protection of employees’ against discrimination. In
this regard an employee includes a former employee or applicant for employment. A
bargaining council or the CCMA has jurisdiction to conciliate a dispute concerning the
interpretation or application of this Chapter. Should the matter not be resolved at this
level, then any party may refer it to the Labour Court for adjudication.

Chapter 11: General

Temporary employment services: A person whose services have been procured for, or
provided to, a client by a temporary employment service is the employee of the
temporary employment service. The temporary employment service and the client are
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jointly and severely liable if the service does not comply with the Act. This does not
apply to Independent Contractors.

Deeming of persons as an employee: The Minister may, on the advice of the

Commission and by notice in the Gazette, deem any category of persons specified in
the notice to be employees for the whole or part of the Act, any other law other than
the Unemployment Insurance Act, 1996, or any sectoral determination and may deem
any category of persons to be contributors for purposes of whole or part of the
Unemployment Insurance Act, 1966.

Regulations: The Minister may, by notice in the Gazette, after consulting the
Commission, make regulations regarding any matter that may be necessary or
expedient to prescribe in order to achieve the objectives of the Act. A regulation may
also be made regarding state expenditure only with the occurrence of the Minister of
Finance.

Code of Good Practice: After consulting with NEDLAC the Minister may issue codes
of good practice. These must all be taken into account in applying or interpreting any
employment law.

Codes issued:

• Arrangement of working time

• Protection of Employees during pregnancy
• Smoking in the workplace
• Procedures for the progressive reduction of maximum working hours

Penalties: Any Magistrate’s Court has jurisdiction to impose a penalty for an offence
provided for in the Act. Various fines or prison terms are set out in the Act for
contravention of various sections.

Index of general administrative regulations:

Definitions
Informing employees of their rights
Keeping of Records
Record of Employees’ wages
Written particulars of employment
Certificate of service
Ministerial Determination
Subpoenas
Securing an undertaking
Compliance order
Objections to Compliance orders
Proof of service

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6. Implications for Affected Parties
Clearly the employment conditions as set out in the Act bind both the employer and
employee. Both would be well advised to have a good understanding of their
obligations in this regard.
The minimum conditions may be improved upon by agreement between the parties.
The Minister is bound by the Act to make Codes of Good Practice, Sectoral
Determinations and Determinations on the advice of the Employment Conditions
Commission.

Liability

Liability attaches to employers and employees.

Risk

Non compliance poses a very real risk to employers in that there is an expedient and
inexpensive (free) recourse to employees in the form of the Commission for
Conciliation, Mediation and Arbitration and the Department of Labour. There is a very
real risk of financial costs and/or ultimately, imprisonment.

Cost

The fines for non compliance can be severe depending on the type of infringement.
The minimum wages for the different sectors will also have an impact for employers.

Resources

It has become essential for all companies to have some form of access to a specialist
who is familiar with this legislation and its principles.