Labour Law – ARR224

Lecture 7The Basic Conditions of Employment Act,

75 of 1997

Prescribed material

Study:• PGL (Chapter 3 par 3.2-3.8, 3.10-3.14,

3.16, 3.18 & 3.20)

Read:• PGL (Chapter 3 par 3.1, 3.9, 3.15, 3.17

& 3.19) • LRL (Pp 509-554)• CLL (Pp 35-48)

Learning outcomes• Discuss provisions of the Act regulating:

o Leave.o Annual leave.o Sick leave.o Maternity leave.o Family responsibility leave.o Termination of employment.o Information that employer must provide to

employee upon appointment of employee. o Remuneration of employee.o Calculation of employee’s wages.o Deductions from employee’s wages.

BCEA (Leave I)

• Leave provisions do not apply to employees who work for less than 24 hours per month.

• Different types of leave:o Annual leave o Sick leave o Maternity leave o Family responsibility leave

BCEA (Leave II)Annual leave• Characteristics:

o Leave with full pay o 12 month leave cycle o 21 consecutive days’ leave per year after 12 months’ service with same employero At least one day leave for every 17 days of completed work o Leave extended by 1 day for every public holiday which falls within leave period.

• Remuneration i.r.o. leave must be paid to employee on last day of work before leave period commences or on usual pay day.

• Annual leave must be granted within first 6 months of completion of leave cycle.

• Annual leave must be taken and may not be traded for ‘money’.• May not run concurrently with a period of notice or any other period of

leave.• Can be reduced with days fully paid casual leave granted by employer at

request of employee.• Employee not allowed to work for employer during leave – only at

termination of service.• Remuneration for leave should be at least equal to normal remuneration for

the same time worked.

BCEA (Leave III)Sick leave• Characteristics:

o Leave with full pay o 36 month leave cycle o Number of days normally worked during period of 6 weeks after initial 6

months of employment o One day’s paid sick leave for every 26 days worked during first 6 months of

employment o Sick leave payments may be reduced by agreement

• Payment for sick leave must take place on usual pay day.• Can agree on reduced remuneration but number of days must increase and

remuneration not less than 75% of what he/she would have earned (e.g. entitled to 30 days – R100 per day, increased to 40 days – R75 per day).

• Medical certificate required after 2 days of absence/after 2 occasions of absence within 8-week period. If no proof is submitted, employer not obliged to pay employee.

• May not run concurrently with annual leave or period of notice.• If resident on employer’s premises and not able to obtain medical certificate

easily, employer not allowed to withhold remuneration provided reasonable assistance rendered to employee to obtain medical certificate.

BCEA (Leave IV)Maternity leave• Characteristics:

o 4 consecutive months’ maternity leave o Commences at any time from 4 weeks before expected date/date

necessitated by health o Employee may not work for 6 weeks after birth unless declared fit

to do so by medical practitioner/ midwifeo Employee who has miscarriage during 3rd trimester or bears

stillborn child is entitled to 6 weeks maternity leave after miscarriage or stillbirth

• Must notify employer 4 weeks in advance of intended date of commencement of leave and return date.

• Unpaid leave. Maternity benefits can be claimed i.t.o. UIA.• Pregnant employees and lactating mothers not allowed to do work that

is hazardous to her or her child’s health.• Night work during pregnancy and 6 months after birth:where

practicable employer must offer suitable alternative employment at terms and conditions not less favourable than ordinary conditions.

BCEA (Leave V)Family responsibility leave• Characteristics:

o 3 days’ paid leave per annual leave cycle o When child is born, gets ill or dies or when a spouse,

life partner, parent, grandparent, grandchild or sibling dies

o Only employees who work for 4 days or more per week are entitled to this leave and who are employed > 4 months

• Employer may require proof of event before payment.• Unused days do not accrue.• Number of days and circumstances may be varied by

collective agreement.

BCEA (Particulars of employment)• Does not apply to employees working < 24 hrs/month. Employers with < 5 employees also exempt from certain sections.• Written agreement of employment not prerequisite for employment relationship. BUT employer must provide, in writing,

certain info to employee upon appointment. • Abovementioned info relates to:

o Employer’s and employee’s particulars (full name and address of employer and full name of employee). o Employee’s occupation/brief description of work he performs. o Place of work (if employee is allowed/obliged to work at different places, indication thereof). o Date of commencement of duties. o Employee’s ordinary hours and days of work. o Employee’s wages (or scale and method of calculating wages). o Scale of payment for overtime work. o Any other cash payments to which employee is entitled to. o Any payment in kind to which employee is entitled to and value thereof. o Intervals of payment of remuneration. o Deductions from employee’s remuneration. o Leave to which employee is entitled to. o Notice period necessary to terminate employment, or if employment is for specified period, date when employment is to terminate. o Description of any council or sectoral determinations applicable to employer’s business. o Any period of employment at previous employer which must be calculated together with current employment. o List of any other documents that form part of contract of employment.

• With changes in above written particulars must be revised and employee must be provided with revised particulars.• Where employee does not understand written particulars, must be explained to him in language and in way he understands.• Written particulars must be kept by employer for period of 3 years after termination of employment.• Employer must display statement of employee’s rights in workplace according to BCEA in official languages which are spoken

in workplace at place where it can be read by employees. • Record must be kept for period of 3 years from date last entry in record was made of each employee’s name and occupation,

time worked, remuneration paid, date of birth of any employee under 18 years of age and any other prescribed information.

BCEA (Remuneration)• Employer must, to every employee, pay remuneration in money:

o In South African currency. o Daily, weekly, fortnightly or monthly. o In cash, by cheque or by direct deposit into an account designated by

employee.• Payment must be not later than 7 days after completion of period for which

remuneration is payable or termination of contract of employment. • Not applicable on payment of pension fund/provident fund. Rules of fund will apply.• Employer must provide following info to employee on day when employee gets paid:

o Employer’s name and address. o Employee’s name and occupation. o Period for which payment is done. o Rate of remuneration and scale for overtime (if applicable). o Number ordinary and overtime hours worked (if applicable). o Number hours worked on a Sunday or public holiday (if applicable). o If agreement was reached to calculate average work time, the total number

ordinary and overtime hours worked (if applicable). o Employee’s remuneration in money. o Any overtime payments and payments for service on Sundays and public

holidays. o Amount and reason for any deduction. o Amount actually paid to employee.

BCEA (Calculation of wages)• Wage calculated with reference to number of hours normally worked by employee.• Employee is deemed:

o To work 45 hrs/week (unless employee ordinarily works fewer hours in week). o To work 9 hrs/day (5 days/week) or 7 ½ hrs/day (> 5 days/week) or hours as laid down by agreement. o If employee works compressed week, number of hours per day is taken into account. o Monthly remuneration is 4 1/3 times weekly remuneration.

• If wage is calculated on basis other than time, or if it fluctuates significantly, any payment to employee must calculated by reference to remuneration during preceding 13 weeks.

• Minister may determine whether particular category of payment forms part of employee’s remuneration. The following categories of payment usually forms part of remuneration package of employee:o Housing allowance. o Car allowance. o Employer’s contribution towards medical -, pension – or provident fund. o Funeral or death benefit schemes. o Any cash or in kind payment other than payment to enable employee to work.

• The following categories of payment usually do not form part of remuneration package:o Relocation allowance. o Gifts from employer. o Share incentive schemes. o Discretionary payments not related to employee’s hours of work/performance. o Entertainment allowance. o Education or schooling allowance.

• Employee may not make any deduction from employee’s wage unless employee agrees thereto in writing or unless deduction required/permitted by law, collective agreement, court order or arbitration award.

• Employee may agree on deduction to reimburse employer for loss/damage only if:o Loss/damage occurred in course of employment and due to fault of employee. o Employer followed fair procedure and given employee reasonable opportunity to show why deduction should not be made. o Total amount of debt does not exceed actual amount of loss/damage. o Total deductions from employee’s remuneration not exceed 1/4 of the employee’s remuneration.

• Deduction i.r.o. any goods purchased by employee, nature and quantity of goods must be specified.• Employer may not require/permit employee to repay remuneration received except for overpayments (error in calculating

remuneration) or to acknowledge receipt of amount greater than remuneration actually received.