Basic Conditions of Employment - 57 of 1997 (67)

What it does Establishes basic terms and conditions Establishes basic terms and conditions Regulates variation of basic terms Regulates variation of basic terms Prohibits child labour Prohibits child labour Covers all SA employees – with a few exceptions e.g. Defence Force, volunteer workers to charity organisation Covers all SA employees – with a few exceptions e.g. Defence Force, volunteer workers to charity organisation Sets minimum standards – parties can improve on them Sets minimum standards – parties can improve on them

Working time (67) Minimum standards do not apply to : Minimum standards do not apply to : –senior management –Travelling salespersons who regulate their own time –Employees working <24 hours per month –Employees earning > R pa

Hours cont. Ordinary hours [s9]: Ordinary hours [s9]: –Max 9 hr per day – 5 day week –Max 8 hours per day – 6 day week –Sch. 1 of BCEA reflects aim is to reduce working hours to 40 hours, through negotiation –Security guards – see sectoral determination Overtime [s10] Overtime [s10] –By agreement only –Ltd 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 per day –Pay =1.5 x ordinary wage, or paid time off [eg 90 minutes paid time off for each hour overtime.]

Hours cont Can have a compressed working week, and averaging of hours –see s12 – must reduce it to writing Can have a compressed working week, and averaging of hours –see s12 – must reduce it to writing Meal intervals – 1 hour after 5 hours, can reduce to 30min if agreed in writing[– no recent amendments ] Meal intervals – 1 hour after 5 hours, can reduce to 30min if agreed in writing[– no recent amendments ] Work on Sundays/ Public Holidays –double time, or, if normally works on Sunday, 1.5x [– no recent amendments] Work on Sundays/ Public Holidays –double time, or, if normally works on Sunday, 1.5x [– no recent amendments]

Hours cont. (69) Night work – work between 18h00 and 06h00 [see s17]. Night work – work between 18h00 and 06h00 [see s17]. Note the code of good practice for arranging working time Note the code of good practice for arranging working time –specific protections built in for these employees, such as consultation where possible –Provide transport to and from work –Concern for health and safety of employees and family responsibilities

Leave (71 Leave (71) Annual – 12 month cycle – 21 consecutive days on full pay, or, Annual – 12 month cycle – 21 consecutive days on full pay, or, By agreement, 1day leave for 17 days worked or 1 hour for 17 hours worked By agreement, 1day leave for 17 days worked or 1 hour for 17 hours worked Annual leave to be granted not more than 6 months after the end of a leave cycle Annual leave to be granted not more than 6 months after the end of a leave cycle Employer cannot compel employee to take leave during notice period Employer cannot compel employee to take leave during notice period Agree, or, Employer can decide when leave taken Agree, or, Employer can decide when leave taken Payment instead of leave =only on termination – se Payment instead of leave =only on termination – se Leave to be paid before leave period [s21] Leave to be paid before leave period [s21]

leave Leave Remuneration [see s35] – amended July 2003 – includes: Leave Remuneration [see s35] – amended July 2003 – includes: –Basic wage, plus cost to company, eg: –Value of Housing and accommodation allowance Housing and accommodation allowance Car allowance Car allowance Employers contribution to medical aid, pension Employers contribution to medical aid, pension Other benefits received Other benefits received –Does not include entertainment allowance etc

Leave accrual Jardine v Tongaat Hulett [2003]*3 – held the employer has a duty to ensure employee takes their annual leave and no forfeiture if leave not taken: Jardine v Tongaat Hulett [2003]*3 – held the employer has a duty to ensure employee takes their annual leave and no forfeiture if leave not taken: Cf: Jooste v Kohler Packaging [2003]*3 Cf: Jooste v Kohler Packaging [2003]*3 –Must take annual leave in period to which it corresponds [differed in that there was a prior agreement] –If not, lose right to that leave and cannot claim payment for accumulated leave outside the cycle

Sick Leave [s22.] 6 weeks iro 36 month cycle 6 weeks iro 36 month cycle During 1 st 6 months employee entitled to 1 day sick leave for every 26 days worked [new Act] During 1 st 6 months employee entitled to 1 day sick leave for every 26 days worked [new Act] Entitled to full sick leave after working 6 or more months [new Act] Entitled to full sick leave after working 6 or more months [new Act]

Maternity leave 4 months – unless agreed, no pay 4 months – unless agreed, no pay –Can receive UIF benefits Commences in month before birth [old was one month] – and may not, without Dr’s permission, work for at least 6 weeks after the birth. Commences in month before birth [old was one month] – and may not, without Dr’s permission, work for at least 6 weeks after the birth. Miscarriages: in last trimester – allowed 6 weeks to recover Miscarriages: in last trimester – allowed 6 weeks to recover Females to attempt to give 4 weeks notice of intention to go on leave – state when leaving and when returning Females to attempt to give 4 weeks notice of intention to go on leave – state when leaving and when returning

Pregnancy cont Code of Good Practice for pregnant woman Code of Good Practice for pregnant woman –No discrimination against pregnant women –No harmful work during pregnancy –Eliminate physical, biological hazards eg chemicals, vibrations, noise, radiation etc see P74 handout.

Family responsibility leave (75) 3 paid days a year 3 paid days a year Birth of child, illness or death of immediate family [ reasonable proof] Birth of child, illness or death of immediate family [ reasonable proof] Must be employed +4 days a week, and at least for 4 months Must be employed +4 days a week, and at least for 4 months No accumulation No accumulation

Contract of employment See Annexure ‘F’ –a to p – for s 29 BCEA requirements of what ‘MUST’ be included See Annexure ‘F’ –a to p – for s 29 BCEA requirements of what ‘MUST’ be included –Does not apply to employees working less than 24 hours per month Examples of contracts are on Dept Labour website Examples of contracts are on Dept Labour website Contracts must be in writing – at start of the employment relationship Contracts must be in writing – at start of the employment relationship

Payment of Remuneration (76) Must be in SA currency Must be in SA currency Paid within 7 days after completion of work period Paid within 7 days after completion of work period Cash or cheque payments to be in work hours Cash or cheque payments to be in work hours S33 - and see P76 of handout – sets out requirements of information to be presented to employee every pay day –eg –relative period, hours and overtime hours S33 - and see P76 of handout – sets out requirements of information to be presented to employee every pay day –eg –relative period, hours and overtime hours Cannot take deductions unless legally authorised or consent in writing [eg cannot deduct loan..] Cannot take deductions unless legally authorised or consent in writing [eg cannot deduct loan..]

Payment of Remuneration cont [2002] intro of s34A [2002] intro of s34A –Employer to pay contributions to pension,provident, retirement, medical aid and similar funds within 7 days of deducting same –Also employers contribution to be paid in 7 days

Termination of employment (77) Notice: to be in writing: ito 2002 amendment Notice: to be in writing: ito 2002 amendment –1 st 6 months – min period is 1 week notice –Thereafter, but within 1 st year 2 weeks notice –Thereafter, 4 weeks notice –Domestic and farm workers entitled to 4 weeks notice after employed for 6 months Cannot give notice whilst employee on leave – nor will notice run concurrently Cannot give notice whilst employee on leave – nor will notice run concurrently

Termination cont Calculate severance pay [where termination for operational requirements or ito S38 Insolvency Act ] - on same basis as annual leave pay but note: Calculate severance pay [where termination for operational requirements or ito S38 Insolvency Act ] - on same basis as annual leave pay but note: –Nufaw v Mgijima (2004) held ’remuneration‘ when calculating severance pay, excludes employers contribution to provident and medical aid funds Min 1 week for each completed year of service Min 1 week for each completed year of service No severance pay if reasonable alternative work offered No severance pay if reasonable alternative work offered Employee entitled to certificate of service Employee entitled to certificate of service

Variation of Basic Conditions of Employment (77) By agreement can improve on the minimums By agreement can improve on the minimums S57 BCEA states that if a matter regulated by BCEA and a sectoral determination, the latter prevails [eg. sectoral determination for Domestic Workers] S57 BCEA states that if a matter regulated by BCEA and a sectoral determination, the latter prevails [eg. sectoral determination for Domestic Workers]