Labour law – ARR224

Lecture 8Basic 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

termination of employment.• Indicate whether the employment of

children and forced labour are permissible. • Give an exposition of the possible variation

of conditions of employment, as contained in the Act.

• Indicate which rights are regarded as core rights of an employee in terms of the Act.

BCEA (Termination of employment I)• Not apply to employee working < 24 hrs/month for employer.• Prescribed minimum periods of notice:

o If employed for 6 mnths/< = 1 week o If employed for > 6 mnths but < 1 yr = 2 weeks o If employed for > 1 yr = 4 weeks o Farm-/domestic workers > 6 mnths = 4 weeks

• Collective agreement may permit shorter notice than 4 weeks (employees employed for > 1 yr) but not < 2 weeks.

• No agreement may require/permit employee to give longer notice than period required of employer.

• - Notice in writing, except when given by illiterate employee. • Rights of dismissed employee to dispute lawfulness/fairness of dismissal and rights of

employer/employee to terminate contract without notice not affected by Chap 5. • Employers may offer payment in lieu of notice, eg: Wages of 2 weeks instead of 2 weeks

notice. • If employer (of employee who resides in accommodation on premises of

employer/premises supplied by him) terminate services without required period of notice/payment in lieu of notice is given, employer required to provide employee with accommodation for 1 mnth/until contract could lawfully have been terminated.

• If employee elects to remain in accommodation in abovementioned, remuneration that employer is required to pay instead of notice is reduced by portion of agreed value of accommodation for period that employee remains in accommodation.

BCEA (Termination of employment II)• Upon termination of employment , employer must pay employee:

o Overtime not yet paid/paid time off. o Remuneration for any period of annual leave due. (Remember calculation of annual leave) o Notice pay (if notice period is not worked). o Outstanding wage/salary. o If employee is dismissed for operational requirements, severance pay must also be paid. (Employee whose

services are terminated because of operational requirements of employer/contract terminated i.t.o. sect 38 of Insolvency Act, must be paid severance pay - at least 1 week’s remuneration for each completed year of continuous service with employer. Employee who unreasonably refuses to accept employer’s offer of alternative employment with that employer/any other employer not entitled to any severance pay.)

• If dispute about entitlement to severance pay only, employee may in writing refer dispute to:o Bargaining council (if parties to dispute fall within registered scope of council). o CCMA (if no council has jurisdiction). Employee who referred dispute to council/CCMA, must serve copy of referral to all other parties involved. Council/ CCMA must conciliate dispute and, if unresolved, it may be referred to arbitration. If Labour Court is adjudicating dispute about dismissal based on employer’s operational requirements, it may inquire into and determine amount of severance pay to which dismissed employee may be entitled. May also make order directing employer to pay amount.

• Upon termination of employment, employee must be given certificate of service containing:o Employee’s full names. o Name and address of employer. o Description of any council/sectoral employment standard by which employer’s business is covered. o Date of commencement and date of termination of employment. o Title of job/brief description of work for which employee was employed at date of termination. o If employee so requests, reason for termination of employment.

BCEA (Prohibition of employment of children & forced labour)• Minimum age for employment = 15 yrs. • No person may employ child < 15 years/< minimum

school-leaving age. (SA Schools Act: parents must see to it that learners continue with school until last school day of year in which learner got 15 or grade 9, whichever one occurs first)

• No one may employ child for work inappropriate for person of that age or that places at risk child’s well-being/ education/physical or mental health/spiritual/moral/social development.

• Minister may issue regulations relating to medical examinations of children in employment.

• Proof of age can be required.• All forms of forced labour are prohibited.

BCEA (Variation of conditions of employment I)

• Basic conditions of employment may be varied by: o Collective agreements concluded in

bargaining councilso Collective agreements concluded outside

bargaining councilso Individual agreements o Determinations by Minister o Sectoral determinations

BCEA (Variation of conditions of employment II)Variation by collective agreement concluded in bargaining council:• Takes preference over other collective agreements.• May vary/replace/exclude any condition of employment, provided it

does not:• Reduce employer’s duty to arrange working time with due regard to

health & safety and family responsibilities. • Reduce protection afforded by Act to employees who perform night

work. • 45-hour week/averaged equivalent. • Reduce employee’s annual leave to < 2 weeks. • Reduce employee’s entitlement to maternity leave. • Reduce employee’s entitlement to sick leave. • Conflict with prohibitions on child & forced labour.

• Abovementioned are core rights of an employee and may not be reduced.

• Variation/interpretation only within permitted boundaries of BCEA.

BCEA (Variation of conditions of employment III)Variation by collective agreements concluded outside

bargaining council: • Only conditions that BCEA specifically allows to be

varied include:o Averaging of hours of work. o Family responsibility leave. o Deductions from employee’s wages. o Shorter notice period for termination of employment. o Removal of labour inspector’s ability to issue

compliance order if collective agreement provides for arbitration.

o Certain conditions of employment within limits set by BCEA, e.g. overtime, weekly rest periods, Sunday work and sick pay.

BCEA (Variation of conditions of employment IV)

Variation by individual agreements • May replace or exclude basic

conditions within the limits set by the Act.

BCEA (Variation of conditions of employment V)Variation by Ministerial determination• Minister may make determination to replace/exclude any basic condition of employment provided for in

BCEA:o Either on his own initiative Minister may only make a determination on own initiative if it is on advice of

ECC and published in Government Gazette. o On application by employer and/or registered employer’s organization Where employer’s

organization requests making of determination, application must be consented to by registered trade union representing affected employees. If consent cannot be obtained, employer/employer’s organization must serve copy of application on union. If employees do not belong to union, employer must take reasonable steps to notify employees of application. Employer must also notify employees once determination has been made by Minister and must hand copy thereof to every registered union representative in workplace.

• Ministerial determination i.r.o. ordinary hours of work may only be made if employees’ ordinary working hours, overtime, meal intervals, rest periods and annual leave are on the whole more favourable than provisions contained in BCEA and if:o Determination has been agreed to in collective agreement. o Determination is necessitated by operational circumstances of sector. o Determination applies to agricultural/private security sectors.

• Determinations may not be made i.r.o.:o Reduce employer’s duty to arrange working time with due regard to health & safety and family

responsibilities. o Reduce protection afforded by Act to employees who perform night work. o 45-hour week/averaged equivalent. o Reduce employee’s annual leave to < 2 weeks. o Reduce employee’s entitlement to maternity leave. o Reduce employee’s entitlement to sick leave. o Conflict with prohibitions on child and forced labour. (Child labour = determination may be made to

regulate employment of children only in advertising, sports, artistic or cultural activities. Must only be done after consultation with Minister for Welfare and Social Development.)

BCEA (Variation of conditions of employment VI)

Variation by sectoral determination• May not diminish protection provided for by core rights.• Binding until amended/superseded/repealed/suspended by Minister. • Takes precedence over provision of BCEA dealing with the same matter.• Steps for making sectoral determination:

o First step Minister (own initiative/request of organisation) direct D/G to investigate conditions of employment in specified sector and area. Minister determines terms of reference for investigation. Includes sector and area, categories/classes of employees and matters e.g. cost of living, alleviation of poverty and differences in remuneration, to be investigated. Published by notice in Government Gazette – invite written representations from members of public.

o Second step Investigation by D/G. Any person with information, interrogated. Employer, employee any other persons requested to submit any information/book/document/object.

o Third step After investigation and consideration of representations, D/G must prepare and submit a report to ECC.

o Fourth step ECC makes recommendations to Minister after consideration of report. Ability of employers to carry on business successfully; operation of small, medium or micro-enterprises; cost of living; alleviation of poverty; conditions of employment; wage differentials and inequality; likely impact of any proposed condition of employment on current employment or the creation of employment, as well as the health, welfare or safety of employees must be considered. ECC prepares report for Minister, containing recommendations on matters which should be included in sectoral determination for relevant sector and area.

o Fifth step Decision by Minister after consideration of report and recommendations whether to make sectoral determination or not. Should he not accept recommendation, must refer matter to ECC for reconsideration, indicating matters on which he is in disagreement. After consideration of further report and recommendations Minister will make determination. Minister may not make determination covering employers and employees who are bound by collective agreement concluded in a bargaining/statutory council, or where matter is regulated by a sectoral determination which has been in effect for less than 12 months.