Basic Conditions of Basic Conditions of EmploymentEmployment- 57 of 1997 (67)- 57 of 1997 (67)

What it doesWhat it does

Establishes basic terms and conditionsEstablishes basic terms and conditions Regulates variation of basic termsRegulates variation of basic terms Prohibits child labourProhibits child labour Covers all SA employees – with a few Covers all SA employees – with a few

exceptions e.g. Defence Force, exceptions e.g. Defence Force, volunteer workers to charity volunteer workers to charity organisation organisation

Sets minimum standards – parties can Sets minimum standards – parties can improve on themimprove on them

Working time (67)Working time (67)

Minimum standards do not apply Minimum standards do not apply to :to :– senior managementsenior management– Travelling salespersons who Travelling salespersons who

regulate their own timeregulate their own time– Employees working <24 hours per Employees working <24 hours per

monthmonth– Employees earning > R115 572 paEmployees earning > R115 572 pa

Hours cont.Hours cont.

Ordinary hours [s9]:Ordinary hours [s9]:– Max 9 hr per day – 5 day weekMax 9 hr per day – 5 day week– Max 8 hours per day – 6 day weekMax 8 hours per day – 6 day week– Sch. 1 of BCEA reflects aim is to reduce working Sch. 1 of BCEA reflects aim is to reduce working

hours to 40 hours, through negotiationhours to 40 hours, through negotiation– Security guards – see sectoral determinationSecurity guards – see sectoral determination

Overtime [s10]Overtime [s10]– By agreement onlyBy agreement only– Ltd 10 hours per week – 3 hours per dayLtd 10 hours per week – 3 hours per day

Unless collective agreement = 15 hours per week Unless collective agreement = 15 hours per week – [2002] cannot agree to work more than 12 hours [2002] cannot agree to work more than 12 hours

per dayper day– Pay =1.5 x ordinary wage, or paid time off [eg 90 Pay =1.5 x ordinary wage, or paid time off [eg 90

minutes paid time off for each hour overtime.]minutes paid time off for each hour overtime.]

Hours contHours cont

Can have a compressed working week, Can have a compressed working week, and averaging of hours –see s12 – must and averaging of hours –see s12 – must reduce it to writing reduce it to writing

Meal intervals – 1 hour after 5 hours, Meal intervals – 1 hour after 5 hours, can reduce to 30min if agreed in can reduce to 30min if agreed in writing[– no recent amendments ]writing[– no recent amendments ]

Work on Sundays/ Public Holidays –Work on Sundays/ Public Holidays –double time, or, if normally works on double time, or, if normally works on Sunday, 1.5x [– no recent amendments]Sunday, 1.5x [– no recent amendments]

Hours cont. (69)Hours cont. (69)

Night work – work between 18h00 and Night work – work between 18h00 and 06h00 [see s17].06h00 [see s17].

Note the code of good practice for Note the code of good practice for arranging working timearranging working time– specific protections built in for these specific protections built in for these

employees, such as consultation where employees, such as consultation where possiblepossible

– Provide transport to and from workProvide transport to and from work– Concern for health and safety of employees Concern for health and safety of employees

and family responsibilitiesand family responsibilities

Leave (71Leave (71)

Annual – 12 month cycle – 21 consecutive days Annual – 12 month cycle – 21 consecutive days on full pay, or,on full pay, or,

By agreement, 1day leave for 17 days worked By agreement, 1day leave for 17 days worked or 1 hour for 17 hours workedor 1 hour for 17 hours worked

Annual leave to be granted not more than 6 Annual leave to be granted not more than 6 months after the end of a leave cycle months after the end of a leave cycle

Employer cannot compel employee to take Employer cannot compel employee to take leave during notice periodleave during notice period

Agree, or, Employer can decide when leave Agree, or, Employer can decide when leave takentaken

Payment instead of leave =only on termination Payment instead of leave =only on termination – se– se

Leave to be paid before leave period [s21]Leave to be paid before leave period [s21]

leaveleave

Leave Remuneration [see s35] – Leave Remuneration [see s35] – amended July 2003 – includes:amended July 2003 – includes:– Basic wage, plus cost to company, eg:Basic wage, plus cost to company, eg:– Value ofValue of

Housing and accommodation allowanceHousing and accommodation allowance Car allowanceCar allowance Employers contribution to medical aid, pensionEmployers contribution to medical aid, pension Other benefits receivedOther benefits received

– Does not include entertainment allowance Does not include entertainment allowance etcetc

Leave accrualLeave accrual

Jardine v Tongaat Hulett [2003]*3Jardine v Tongaat Hulett [2003]*3 – held – held the employer has a duty to ensure the employer has a duty to ensure employee takes their annual leave and employee takes their annual leave and no forfeiture if leave not taken:no forfeiture if leave not taken:

Cf: Cf: Jooste v Kohler Packaging [2003]*3Jooste v Kohler Packaging [2003]*3– Must take annual leave in period to which it Must take annual leave in period to which it

corresponds [differed in that there was a corresponds [differed in that there was a prior agreement]prior agreement]

– If not, lose right to that leave and cannot If not, lose right to that leave and cannot claim payment for accumulated leave claim payment for accumulated leave outside the cycleoutside the cycle

Sick Leave [s22.]Sick Leave [s22.]

6 weeks iro 36 month cycle6 weeks iro 36 month cycle During 1During 1stst 6 months employee 6 months employee

entitled to 1 day sick leave for entitled to 1 day sick leave for every 26 days worked [new Act]every 26 days worked [new Act]

Entitled to full sick leave after Entitled to full sick leave after working 6 or more months [new working 6 or more months [new Act]Act]

Maternity leaveMaternity leave

4 months – unless agreed, no pay4 months – unless agreed, no pay– Can receive UIF benefitsCan receive UIF benefits

Commences in month before birth [old was Commences in month before birth [old was one month] – and may not, without Dr’s one month] – and may not, without Dr’s permission, work for at least 6 weeks after permission, work for at least 6 weeks after the birth.the birth.

Miscarriages: in last trimester – allowed 6 Miscarriages: in last trimester – allowed 6 weeks to recoverweeks to recover

Females to attempt to give 4 weeks notice of Females to attempt to give 4 weeks notice of intention to go on leave – state when leaving intention to go on leave – state when leaving and when returningand when returning

Pregnancy contPregnancy cont

Code of Good Practice for Code of Good Practice for pregnant womanpregnant woman– No discrimination against pregnant No discrimination against pregnant

womenwomen– No harmful work during pregnancyNo harmful work during pregnancy– Eliminate physical, biological hazards Eliminate physical, biological hazards

eg chemicals, vibrations, noise, eg chemicals, vibrations, noise, radiation etc see P74 handout.radiation etc see P74 handout.

Family responsibility Family responsibility leave (75)leave (75) 3 paid days a year3 paid days a year Birth of child, illness or death of Birth of child, illness or death of

immediate family [ reasonable immediate family [ reasonable proof]proof]

Must be employed +4 days a Must be employed +4 days a week, and at least for 4 monthsweek, and at least for 4 months

No accumulationNo accumulation

Contract of Contract of employmentemployment

See Annexure ‘F’ –a to p – for s 29 See Annexure ‘F’ –a to p – for s 29 BCEA requirements of what ‘MUST’ be BCEA requirements of what ‘MUST’ be includedincluded– Does not apply to employees working less Does not apply to employees working less

than 24 hours per monththan 24 hours per month Examples of contracts are on Dept Examples of contracts are on Dept

Labour websiteLabour website Contracts must be in writing – at start Contracts must be in writing – at start

of the employment relationshipof the employment relationship

Payment of Payment of Remuneration (76)Remuneration (76) Must be in SA currencyMust be in SA currency Paid within 7 days after completion of work Paid within 7 days after completion of work

periodperiod Cash or cheque payments to be in work hoursCash or cheque payments to be in work hours S33 - and see P76 of handout – sets out S33 - and see P76 of handout – sets out

requirements of information to be presented requirements of information to be presented to employee every pay day –eg –relative to employee every pay day –eg –relative period, hours and overtime hoursperiod, hours and overtime hours

Cannot take deductions unless legally Cannot take deductions unless legally authorised or consent in writing [eg cannot authorised or consent in writing [eg cannot deduct loan..]deduct loan..]

Payment of Payment of Remuneration contRemuneration cont [2002] intro of s34A [2002] intro of s34A

– Employer to pay contributions to Employer to pay contributions to pension,provident, retirement, pension,provident, retirement, medical aid and similar funds within medical aid and similar funds within 7 days of deducting same7 days of deducting same

– Also employers contribution to be Also employers contribution to be paid in 7 dayspaid in 7 days

Termination of Termination of employment (77)employment (77) Notice:Notice: to be in writing: ito 2002 to be in writing: ito 2002

amendmentamendment– 11stst 6 months – min period is 1 week notice 6 months – min period is 1 week notice– Thereafter, but within 1Thereafter, but within 1stst year 2 weeks year 2 weeks

noticenotice– Thereafter, 4 weeks noticeThereafter, 4 weeks notice– Domestic and farm workers entitled to 4 Domestic and farm workers entitled to 4

weeks notice after employed for 6 monthsweeks notice after employed for 6 months Cannot give notice whilst employee on Cannot give notice whilst employee on

leave – nor will notice run concurrentlyleave – nor will notice run concurrently

Termination contTermination cont

Calculate Calculate severance payseverance pay [where termination [where termination for operational requirements or ito S38 for operational requirements or ito S38 Insolvency Act ] - on same basis as annual Insolvency Act ] - on same basis as annual leave pay but note:leave pay but note:– Nufaw v Mgijima (2004)Nufaw v Mgijima (2004) held ’remuneration‘ when held ’remuneration‘ when

calculating severance pay, excludes employers calculating severance pay, excludes employers contribution to provident and medical aid fundscontribution to provident and medical aid funds

Min 1 week for each completed year of Min 1 week for each completed year of serviceservice

No severance pay if reasonable alternative No severance pay if reasonable alternative work offeredwork offered

Employee entitled to certificate of service Employee entitled to certificate of service

Variation of Basic Variation of Basic Conditions of Conditions of Employment (77)Employment (77) By agreement can improve on the By agreement can improve on the

minimumsminimums S57 BCEA states that if a matter S57 BCEA states that if a matter

regulated by BCEA and a sectoral regulated by BCEA and a sectoral determination, the latter prevails determination, the latter prevails [eg. sectoral determination for [eg. sectoral determination for Domestic Workers]Domestic Workers]