Basic Conditions of Employment Act 75 of 1997

LECTURE 4

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See the study guide for paragraphs to be studied and those for reading purposes only

Follow p21 of the study guide in this respect.

STUDY and READ

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A large number of Employees and Employers in private sector/State industries are bound by the LRA.

Basic Aim of BCEA is to provide for minimum working conditions for employees.

BCEA sets MINIMUM standards and the employer may grant better (not worse) working conditions OR collective bargaining may result in better working conditions.◦ One may not contract out these MINIMUM standards.

INTRODUCTION

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Employees serve in a subordinate power position and this could lead to abuse by the E/R, thus legal protection is granted for the employees.

Sets minimum standards for the protection of employees in the absence of other protective measures such as: ◦ Collective agreements or,◦ Sectoral determinations.

The common law lends no (or little) protection to the individual.

Common law does not provide for sick leave, annual leave, maximum working hours and other conditions of employment.

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1. To advance economic development and social justice by: ensuring that working conditions of unorganised and

vulnerable workers meet minimum standards that are socially acceptable.

2. Give effect to and regulate the right to fair labour practices.

3. Give effect to obligations incurred by the Republic as a member state of the ILO.

Variations to the provisions of the Act are possible through:◦ collective bargaining, ◦ sectoral determinations, ◦ contracts of employment and ◦ determinations made by the Minister of Labour.

Aims of the Act

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Act applies to all employees and employers in the public and private sectors.

Act not applicable( in total) to:◦ NDF;◦ National intelligence Agency;◦ National Academy of Intelligence;◦ South African Secret Service;◦ Directors and staff of Comsec.◦ Unpaid volunteers working for an organisation

serving a charitable purpose.

Application of the Act

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Persons undergoing vocational training – Act applies to them to the extent that their employment not is regulated by the provisions of any other law. 

Persons employed on vessels at sea – Merchant Shipping Act applies to employees on a vessel at sea . Sect 41 of the BCEA is applicable here (which deals with severance pay), except to the extent provided for in a sectoral determination.

Senior managerial employees, employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work and employees who work fewer than 24hours per month: (excluded overtime, compressed workweek, averaging of working hours, maximum hours prescribed by Minister, etc.)

Employees who work fewer than 24 hours per month are excluded from sect 8-27 (leave, remuneration & termination).

Partial exclusion See p. 36 par 3.3.

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An employee earning above the threshold, currently R183,008 p/a is excluded form provisions relating to working time, averaging of working hours, hours prescribed by the Minister , meal intervals, daily and weekly rest periods, Sunday work, night work and work on public Holidays

Employees engaged in unexpected work that cannot be done within ordinary working hours are excluded from the sections dealing with ordinary hours of work.

Partial exclusions continued

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Basic condition of employment = a provision of the Act or sectoral determination that stipulates a minimum term or condition of employment.

Domestic worker = an employee who performs domestic work in the home of his or her employer and includes a gardener, a person employed by a household as a driver of a motor vehicle and a person who takes care of the children, the aged, the sick, the frail or the disabled, but does not include a farm worker.

Farm worker = any person who is employed mainly in or in connection with farming activities and includes an employee who wholly or mainly performs domestic work in a home on a farm.

Senior managerial employee = an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally.

Definitions

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Temporary employment service (Labour broker) = any person who, for reward, provides to a client other persons who render services or performs work for that client and who are remunerated by the temporary employment service. s82(1) BCEA = temporary employment service is the employer of the employees.

Remuneration = payment in money and/or kind (in natura)

Employee = ◦ Any person, excluding an independent contractor, who

works for another person or for the State and who receives or is entitled to receive any remuneration; and

◦ Any other person who in any manner assists in carrying on or conducting the business of an employer.

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s83 BCEA: creates a rebuttable presumption of who is an employee – when one or more of the following factors exist: ◦ Person is subject to the control or direction of another

person;◦ Hours of work are subject to the control or direction of

another person;◦ Person is part of the organisation; ◦ Person has worked for that person for an average of at

least 40hours over the last three months;◦ Person is economically dependant on the person for who

he is working;◦ Person is provided with tools of trade or work equipment; ◦ Person works for or renders services to only one person.

BCEA protects employees against unfair discrimination by including job applicants and previous employees in the definition of an employee (s79(1))

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Working hours have to be regulated with due regard to:◦ Health; ◦ Safety; ◦ Family responsibilities;◦ Code of Good Practice on the regulation of Working

hours. Day = 24 hours from time employee usually

starts working.

Ordinary working hours

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Weekly hours = maximum 45 hours/week. Daily hours =

◦ Working 5 days/week or less = 9 hours/day.◦ Working more than 5 day/week = 8 hours/day.◦ If an employee’s duties include serving the public,

an extension of 15 minutes per day is allowed to a maximum of 60minutes/week.

Maximum working hours per day = 12hours.

Goal of the Act is ultimately to reach a 40hour working week.

Normal working hours

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STUDY DEFINITIONS ON DOMESTIC WORKER,EMPLOYEE, FARM WORKER,REMUNERATION AND SENIOR MANAGERIAL EMPLOYEE

Outcomes: What are the aims of the BCEA? Explain which employees are protected by the BCEA

and also refer to absolute and partial exclusions Define domestic worker, employee, farm worker,

remuneration and senior managerial employee Discuss in full the provisions relating to working

hours , according to the BCEA,

NB FOR THIS LECTURE