The Basic Condition of Employment Act gives effect to the right to fair labour practices by establishing and making provision for the regulation of basic conditions of employment. It is established to comply with the obligations of the Republic as a member state of the International Labour Organisation.
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South African workers and employers enjoy many rights, thanks to the Basic Conditions of Employment Act. From leave days to the termination of your employment and more, here’s all you need to know about the Basic Condition of Employment Act.
What is the Basic Condition of Employment Act in South Africa?
This is the law that governs the rights and obligations of South African workers. In particular, the Basic Conditions of Employment Act 75 of 1997 intends:
- 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;
- 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.
The Act applies to all employees and employers except members of the:
- National Defence Force,
- South African Secret Service,
- National Intelligence Agency, and
- Unpaid volunteers (working for an organization with a charitable purpose).
Basic Condition of Employment Act: A Summary
Particularly, the Basic Conditions of Employment Act provides a basic guideline on the Act regulations relating to:
- Working time;
- Leave;
- Termination of employment;
- Prohibition of employment of children and forced labour;
- Variation of basic conditions of employment;
- Sectoral determinations; and
- Employment Conditions Commission.
Below, we will briefly describe the contents of each of the points above.
Working Time
This section doesn’t apply to:
- Senior managers (those who can hire, discipline and dismiss workers);
- Sales staff who travel;
- Workers who work less than 24 hours a month; and
- Those doing emergency work are excluded from certain provisions.
Ordinary hours of work
According to the Basic Condition of Employment Act, you must not work more than 45 hours any week. Yet, the following exceptions apply to particular conditions.
- 9 hours a day if a worker works 5 days or less a week.
- 8 hours a day if a worker works more than 5 days a week.
Compressed Work Week
You may agree to work up to 12 hours a day without paid overtime. However, this agreement must be in writing. Thus, when working a compressed working week, workers can’t work more than 45 hours a week; 10 hours of overtime or 5 days a week.
Averaging
A collective agreement may allow your working hours to be averaged over a period of up to 4 months. Agreeing to this, a worker can’t work more than an average of 45 ordinary hours a week and 5 hours of overtime a week. Furthermore, a collective agreement for averaging must be renegotiated each year.
Overtime
If overtime is needed, you must agree to it and may not work for more than 12 hours a day or more than 10 hours overtime a week. Also, please note that a collective agreement can be made to increase this to 15 hours a week, but only for up to 2 months a year.
Besides, overtime must be paid at one-and-a-half (1.5) times your normal hourly pay rate. You and your employer may also agree to paid time off instead of extra pay or a combination of time off and paid overtime.
Meal Breaks and Rest Periods
Generally, you must have a meal break of 60 minutes after 5 hours’ work. Yet, a written agreement may lower this to 30 minutes and do away with the meal break if you work less than 6 hours a day.
Moreover, you must have a daily rest period of 12 continuous hours and a weekly rest period of 36 continuous hours. Unless otherwise agreed, this must include Sundays.
If you sometimes work on a Sunday, you must get double pay. Then, if you normally work on a Sunday, you must be paid one-and-a-half (1.5) times the normal wage. There may be an agreement for paid time off instead of overtime pay.
Night Work
Night work is unhealthy and can lead to accidents. Therefore, if you work between 18:00 and 06:00 you must get extra pay (allowance) or be able to work fewer hours for the same amount of money. Also, transport must be available to the workers for this purpose.
If you usually work between 23:00 and 06:00, you must be told of the health and safety risks. Also, you’re entitled to regular medical check-ups, paid for by your employer. Your employer must move you to a day shift if night work develops into a health problem.
Leave
This regulation does not apply to an employee who works less than 24 hours a month for an employer. Additionally, unless an agreement provides otherwise. this Chapter does not apply to leave granted to an employee over the employee’s entitlement under this law.
Annual Leave
You can take up to 21 continuous days’ annual leave or, by agreement, 1 day for every 17 days worked or 1 hour for every 17 hours worked.
However, you must take leave no later than 6 months after the end of your annual leave cycle. You can only get paid for any leave outstanding when you leave the job.
Sick Leave
In fact, you can take up to 6 weeks of paid sick leave during a 36-month cycle. During the first 6 months of starting at a company, you can take 1 day’s paid sick leave for every 26 days you’ve worked.
Also, note that your employer may want a medical certificate before paying you when you are sick for more than 2 days at a time or more than twice in 8 weeks.
Maternity Leave
If you’re pregnant, you can take up to 4 continuous months of maternity leave. You can start your maternity leave any time from 4 weeks before the expected date of birth or on a date a doctor/midwife says is necessary for your health or that of your unborn child.
Then, you may work for 6 weeks after the birth of your child unless a doctor or midwife has advised you to. Most importantly, a pregnant or breastfeeding female worker isn’t allowed to perform work that’s dangerous to her or her child.
Paternity Leave
Fathers are entitled to 10 consecutive days of unpaid paternity leave. Hence, you will have to claim from the Unemployment Insurance Fund (UIF) for those unpaid days.
This applies to fathers who adopt a child under 2 years old. Moreover, this leave can be taken from the date that the adoption order is given or when the child is placed in the care of the adoptive parents.
The employer should be notified in writing when the leave will be taken unless you’re unable to do so.
Family Responsibility Leave
If you’re employed full-time for longer than 4 months, you can take 3 days’ paid family responsibility leave per year when:
- A child is born or sick; or
- For the death of your spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
However, your employer may want reasonable proof of the birth, illness or death for which the leave was taken.
Termination of Employment
You or your employer must give the notice to end an employment contract of not less than:
- 1 week, if employed for 6 months or less;
- 2 weeks, if employed for more than 6 months but not more than one year; or
- 4 weeks, if employed for 1 year or more.
The notice must be in writing, except for a worker who can’t write. If you can’t write, you can give verbal notice. However, if you live on premises owned by your employer, they must give you a month of notice to leave or give you another place to live until the contract is lawfully ended.
Even if they give you notice to leave the premises where you’re living, you can still challenge the dismissal using the Labour Relations Act or any other law.
Severance Pay
An employer must pay you if they dismiss you due to retrenchment or restructuring, at least 1 week’s severance pay for every year of continuous service.
Nevertheless, you’re not entitled to severance pay if you unreasonably refuse other employment with the same employer or with another employer.
Certificate of Service
Your employer must give you a certificate of service when you leave a job.
Prohibition of Employment of Children and Forced Labour
According to the Basic Condition of Employment Ac, it is against the law to employ a child under 15 years old. Children under 18 may not do dangerous work or work meant for an adult. Most importantly, it is against the law to force someone to work.
Variation of Basic Conditions of Employment
Bargaining Council
A collective agreement concluded by a bargaining council can be different from this law. However, it must not:
- Negatively affect workers’ health and safety, and family responsibilities;
- Lower annual leaves to less than 2 weeks, maternity leaves and sick leaves in any way, and the protection of night workers; or
- Allow for any child labour or forced labour.
Other Agreements
Collective agreements and individual agreements must follow the Act.
The Minister
The Minister of Labour may decide to vary or exclude a basic condition of employment. Also, employers or employer organisations can apply to do this.
Sectoral Determinations
Special rules that still abide by this Act can be made for specific sectors to establish basic conditions for workers in a sector and area.
Employment Conditions Commission
This Act allows the Employment Conditions Commission to advise the Minister of Labour, Monitoring, Enforcement and Legal Proceedings.
Inspectors play an important role in implementing this law. They need to do the following:
- Advise workers and employers about their labour rights and obligations.;
- Inspect, investigate complaints;
- Question people;
- Inspect, copy and remove records; and
- Serve a compliance order by writing to the Director-General of the Department of Labour, who will then look at the facts and agree, change or cancel the order.
In other words, the Basic Condition of Employment Act overrides any agreement or contract you may have signed with your employer or worker. Thus, you must take note of the following key points.
Ultimately, it is a crime to:
- Try to prevent, block or influence a labour inspector or any other person obeying this Act.
- Get or try to get a document by stealing, lying or showing a false or forged document;
- Pretend to be a labour inspector or any other person obeying this Act;
- Refuse or fail to answer questions from a labour inspector or any other person obeying this Act; and
- Refuse or fail to obey a labour inspector or any other person obeying this Act.
Final Note
Learning about the Basic Condition of Employment Act can protect you from the risks that may occur in the workplace in one way. Also, it will protect your rights and ensure you get the most out of your working period.