Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
The relationship between worker and employer is governed by
various labour statutes (the best known of which is the Basic
Conditions of Employment Act, 1983) and wage-regulating measures
that stipulate minimum conditions of employment to protect
workers.
Although it is impossible to set out here the minimum wages
and conditions of work for every job, there are some basic
guidelines. (See apprenticeship;
bargaining councils; statutory councils; wage act.)
An important point to remember is that where no bargaining or
statutory council agreement exists, any group or association of
employers may submit minimum wage scales and working conditions
to the appropriate minister of state.
Basic Conditions of Employment Act
This Act is designed to set minimum conditions of employment
for workers in the private sector, including agricultural workers
and some domestic workers. It must be read together with the
applicable wage-regulating measure (if there is one), which
always takes precedence over conditions prescribed in the Basic
Conditions of Employment Act. The Act protects employees
previously protected by the Shops and Offices Act, 1964, and the
Factories, Machinery and Building Works Act, 1941. It is enforced
by Department of Labour inspectors with wide powers.
Major provisions of the Act include:
- Restrictions on the maximum number of hours employees may
work in a day or week, and on overtime;
- Strict rules governing maximum continuous working periods
and minimum breaks from work;
- A minimum overtime rate of full time plus one-third for
overtime during the working week. Special overtime rates
apply to public holidays, and employees of factories or
shops are not allowed to work on Sundays without the
authority of an inspector. Note, however, that while this
provision does not apply to an employer who may legally
keep open a shop on a Sunday, an employee who has to work
on a Sunday must be given a day off during the
week;
- That employees are entitled to a minimum annual paid
leave of two weeks (or 21 consecutive days in the case of
employees such as insurance agents, security guards,
outside sales assistants and demonstrator-sales
representatives). Provision is also made for a minimum
sick-leave period of 30 working days over a three-year
cycle for a person working a five-day week. Employees
working more than a five-day week are entitled to a
maximum of 36 working days over a three-year cycle. Sick
leave during the first year of employment is restricted
by the time worked. Employees must produce a medical
certificate on request after an absence of more than two
consecutive days.
HOURS OF WORK In terms of the Act a maximum
working week is 46 hours (48 or 60 hours in the case of security
guards or guards). The maximum number of hours worked a day
depends on whether or not an employee works a five- or six-day
week. The maximum number of hours (excluding overtime) for a
five-day week is 91/4 hours a day; and for a six-day week, 81/2
hours, where only five hours are worked on the sixth day or
Saturday. (Security guards on a 60-hour week work 12-hour shifts,
while guards on a 48-hour week work either 8- or 12-hour shifts.)
Full details can be obtained from local offices of the Department
of Labour.
MEAL TIMES Every employer must allow
employees a meal interval of at least an hour a day, to be given
no later than five hours after the start of work. It is illegal
to compel an employee to work during a meal interval. Although
shorter meal times may be agreed upon by the employer and the
employee, the shortened interval should not be less than 30
minutes. This provision does not apply to continuous shift
workers and security guards.
OVERTIME The maximum overtime allowed in any
one day is three hours; or 10 hours in a week. This limit may,
however, be increased if an employer has applied to the
Department of Labour and an inspector has consulted the employees
concerned. These limits do not apply to employees engaged in
emergency work or in work connected with the loading or
off-loading of Transnet vehicles. Overtime must be paid at not
less than 11/3 times a worker's ordinary hourly rate.
SUNDAY WORK Sunday work in a factory or a
shop is allowed only with the written permission of an inspector
of the Department of Labour. Permission is not needed in the case
of emergency or continuous shiftwork. If Sunday work is
permitted, the employer must pay:
- An ordinary day's wage, if the worker has worked less
than four hours;
- Double the ordinary hourly rate for every hour worked, if
the worker works more than four hours;
- 11/3 times the ordinary hourly rate for every hour
worked, if the worker gets one day's paid leave within
seven days of the Sunday worked.
PUBLIC HOLIDAYS Generally, workers are given
all or some of the following paid public holidays every year: New
Year's Day, Human Rights Day, Good Friday, Family Day, Freedom
Day, Workers' Day, Youth Day, National Women's Day, Heritage Day,
Day of Reconciliation, Christmas Day and the Day of Goodwill. An
employee who works on a public holiday must receive one day's pay
plus:
- A further day's pay or the ordinary rate for the job for
the time worked, whichever is greater;
- Alternatively, 11/3 times the ordinary rate for the time
worked, plus a day off on full pay within seven days of
the holiday. If the public holiday does not fall on an
ordinary working day, the employee is not entitled to be
paid for it.
ANNUAL LEAVE Employers must give 14
days' consecutive annual leave on full pay to all their
employees. Salespersons, travellers, insurance agents and
security guards are entitled to 21 days' consecutive leave. The
period may be reduced by the number of days of occasional leave
taken during the year. Employees become eligible for annual leave
only after working for a year (or by an alternative agreement
with their employers).
Although leave must be given within four months of completion
of the year worked, it may be given later if the worker agrees,
and provided it is taken no more than six months after the
completion of the working year.
Should the period of an employee's annual leave include, say,
two public holidays, the leave period must be extended by two
days.
Annual leave may not be given concurrently with sick leave or
notice of termination of employment. Nor may annual leave be
given concurrently with any period of military service unless, of
course, the employee requests this in writing and the employer
agrees.
In the case of dismissal or resignation, employees are
entitled to all annual leave due to them. If they have worked for
only part of a year, annual leave is calculated on a pro rata
basis by multiplying the number of months worked by:
- One-fourth of the weekly wage for those employees who are
entitled to 21 days' leave a year;
- One-sixth of the weekly wage for employees who have 14
days' leave a year.
SICK LEAVE All employees covered by the Basic
Conditions of Employment Act are entitled to sick leave on full
pay. The number of days of paid sick leave depends on the length
of an employee's service. In terms of the Act employers are
required to allow at least 30 working days' paid sick leave every
three years for employees who work five days a week, and 36
working days for all other employees.
An employee who works five days a week but who has worked for
a company for less than a year, is not entitled to more than one
day's paid sick leave for every five weeks worked; all other
employees, who have worked less than one year, are entitled to
one day's paid sick leave for every month worked.
An employer is entitled to refuse to pay more than two days'
consecutive sick leave to an employee who is unable to produce a
medical certificate. Furthermore, if an employee has had paid
sick leave on two or more occasions within a period of eight
weeks and has not produced a medical certificate, the employer
may refuse to give further paid sick leave for eight weeks if no
medical certificate is produced, even if the employee is ill for
just one day.
Workers who belong to sick funds that provide for at least the
same amount of paid sick leave, and those whose contributions to
the fund are less than or equal to the contributions made by an
employer are not covered by this provision.
NOTICE OF TERMINATION The Basic Conditions of
Employment Act requires that minimum periods of notice to
terminate employment be given by both employer and employee. The
minimum periods of notice are:
- One day's notice during the first four weeks of
employment;
- One week's notice after the first four weeks of
employment, in the case of weekly-paid employees;
- Two weeks' notice in the case of employees paid monthly,
after the first four weeks of employment.
Notice must be in writing (except when given by an illiterate
employee) and it must be given:
- On or before the usual payday of the weekly-paid
employee; or
- On the 1st or 15th day of the month in the case of a
monthly-paid employee.
Notice may not be given concurrently with any period of
military training, annual leave or sick leave.
An employer who does not want an employee to work out the
notice period can elect to pay the employee for the period
instead. An employer does not have to give notice to an employee
who deserts or is guilty of gross misconduct. (See dismissal.)
An employer is obliged to give an employee a certificate of
service on termination of employment which must show the full
names of the employer and the employee, the occupation of the
employee, the date on which the worker was employed and the date
of the termination of employment, and the worker's wage when
employment was terminated.
EMPLOYMENT OF CHILDREN AND PREGNANT WOMAN The
employment of children under the age of 15 years is prohibited.
Pregnant women may not work from four weeks before the expected
date of confinement until eight weeks after it.
DEDUCTIONS The Basic Conditions of Employment
Act prohibits the imposition of any fine by employers against
employees for any act or omission in the course of their
employment. It is also an offence to deprive workers of any
benefit or force employees to give receipts for a greater amount
than was actually paid. Moreover, it is illegal to make any
deduction from an employee's wage or salary, other than that
required by law or an order of court, without the written
authority of the employee.
Factory workers
The majority of factory workers are protected by
wage-regulating measures, the most common of which are bargaining
or statutory council agreements that set minimum wages and
working conditions for specific industries. Where there is no
wage-regulating measure, the Basic Conditions of Employment Act
applies; where there is a wage-regulating measure, only those
provisions in the Act not contained in the measure apply.
Shop and office workers
Most shop workers are covered by the wage-determination
agreement for the commercial distribution trade, which applies to
all major centres with the exception of Kimberley (where there is
a bargaining council agreement). The determination sets minimum
conditions of work only slightly different from conditions set
out in wage-regulating measures.
Not all shops fall under this determination, however.
Butchers' shops, for instance, fall under the determination for
the meat trade. To discover precisely what the determination
requires, consult the copy kept by your employer (who is obliged
to keep it available) or ask your trade union or the Department
of Labour.
Where there is no wage-regulating measure, the Basic
Conditions of Employment Act applies, although shop and office
workers who earn more than the prescribed amount are not
protected by all the provisions. Among the provisions designed
specifically for shop, restaurant and office workers are
that:
- No employer may instruct an employee to be available for
work for more than 91/4 hours a day in a five-day working
week or, in the case of a six-day week, not more than
eight hours a day for five days and six hours for one day
(a total of 46 hours). If employees have early starting
times - for instance, if they have to prepare a
restaurant's lunch sitting - they must be allowed to
leave earlier. It does not matter that the workers may be
given time off in the afternoon. This maximum period
includes ordinary time and overtime. Note, also, that
overtime is limited to three hours a day (or 10 hours a
week) unless the employer applies for an exemption;
- When a shop assistant is required to attend to a customer
at the end of the day, the working hours may not be
extended by more than 15 minutes per day (or by a total
of one hour in any week);
- The provisions governing Sunday work do not apply to
those shops that are permitted to do business on Sundays.
How-ever, a shop assistant who works on a Sunday is
entitled to a day off the following week;
- Shop and office workers get more paid public holidays
than other workers. In 1996 public holidays were: New
Year's Day, Human Rights Day, Good Friday, Family Day,
Freedom Day, Workers' Day, Youth Day, National Women's
Day, Heritage Day, Day of Reconciliation, Christmas Day
and the Day of Goodwill.
Catering
Most employees in the catering industry are covered by a
wage-regulating measure. For instance, restaurant and tearoom
staff in Pretoria and the Witwatersrand are covered by a
bargaining council agreement, while many workers in other parts
of the country fall under the wage-determination for the catering
trade. (Check with your local Department of Labour to find out
the position in your area.)
A bargaining council agreement also covers the hotel trade
(although, here again, a wage-determination applies to areas
falling outside the bargaining council agreement).
Employees involved in the sale or serving of liquor in all the
major urban centres are covered by a bargaining council
agreement. If catering employees fall outside bargaining council
jurisdiction, their conditions of employment will be covered by a
wage-determination agreement. A wage-determination agreement also
exists for workers in the private hotel and boarding-house
industry. If an area lies outside the one covered by the
wage-determination agreement, the Basic Conditions of Employment
Act will apply.
Security services
There are two types of security officer - those employed by a
firm hiring out security services and those who work for the
person whose premises they are guarding. The former type falls
under the wage- determination for the security industry. In this
instance, officers are required to work either a 48-hour or a
60-hour week, consisting of 12 hours a day for a 60-hour week and
eight hours or 12 hours a day for a 48-hour week. Those working a
60-hour week are entitled to four weeks annual leave while those
on a 48-hour week get three weeks leave. They are also entitled
to notice of termination of work. All other security officers
fall under the wage-determination measure covering their
employer.
The Act provides for a maximum working week of 60 hours and a
maximum working day of 12 hours for security officers working a
five-day week and 10 hours for a six-day week.
Meal intervals during any 'spread-over' must be paid. A
spread-over is the period in any day between the time workers
start work and the time they leave work. Employers are required
to give a meal interval to security officers.
Farm workers
In addition to being covered by the Basic Conditions of
Employment Act, farmworkers can also claim benefits under the
terms of the Compensation for Occupational Injuries and Diseases
Act, 1993. (See workers'
compensation).
Monthly-paid farm workers are entitled to a month's notice and
weekly-paid wor-kers must be given a week's notice. Deductions
cannot be made from their wages for damage caused to property.
Professional and managerial staff
Although conditions of employment are generally covered by the
contract entered into with an employer, most wage-determination
agreements cover professionals and managers. However, certain
provisions of the Basic Conditions of Employment Act apply to
professionals and managerial staff who earn more than the
prescribed amount. The provisions that apply are that:
- An employee will be given time off if working hours are
extended by 15 minutes a day (or a total of an hour a
week) to serve a customer;
- Employees are entitled to annual leave;
- Employees are entitled to sick leave on full pay, the
number of days allowed depending on length of
service;
- Where termination of employment occurs, a notice period
will be worked out by an employee;
- A certificate of service must be issued to an employee
whose employment comes to an end;
- Any deduction other than those permitted by law (or in
terms of a written agreement with an employee) are
prohibited;
- A pregnant woman is entitled to be off work from four
weeks before confinement to eight weeks after the
birth;
- No victimisation is permitted. In the event of a dispute
between employer and employee, the courts will refer to
the original contract of employment should the provisions
of the Act not apply.
Public servants
Conditions of employment for public servants, including
full-time members of the National Defence Force, the Police
Service and the Department of Correctional Services, are
determined by regulations gazetted on the recommendation of the
Public Service Commission.
Conditions of service differ from one sector of the public
service to another. The Public Service Act, 1984, regulates the
appointment, promotion, transfer, retirement and dismissal of
public servants, and sets out the procedures that must be
followed in cases of alleged misconduct.
The conditions of service for employees of provincial
administrations are set out in provincial ordinances. Public
servants are not protected by the Basic Conditions of Employment
Act.
Mining employees
There are no bargaining council agreements or wage
determinations in the mining industry.
Conditions for white workers in coal and gold mines are
regulated by common-law agreements negotiated between the Council
of Mining Unions and the Chamber of Mines. These set wages and
establish minimum conditions of work.
The National Union of Mineworkers negotiates wage structures
and minimum working conditions for its members, most of whom are
black.
In other mines, wages are negotiated or set by the individual
companies or mines, but frequently they follow guidelines
established by the Chamber of Mines.
Municipal employees
In Gauteng, Mpumalanga and Northern Province, a gazetted
bargaining council agreement covers municipal employees who are
members of the South African Association of Municipal Employees.
Other employees are covered by ungazetted bargaining council
agreements.
In certain regions, the wages and working conditions of
unskilled workers employed by local authorities are set by wage
determination. If not, the Basic Conditions of Employment Act
applies.
Construction workers
Building industry workers fall under bargaining council
agreements, although precisely which workers are covered varies
from area to area.
Although no bargaining council agreement exists for the civil
engineering industry, a wage-determination order regulates the
employment of all classes of workers in the industry.
Exceptions are covered by the Basic Conditions of Employment
Act.
Transport industry
The Motor Industrial Council, which covers the sales, repairs
and restoration of motor vehicles, as well as the sales of
various motor parts, is a bargaining council that covers all
employees in the trade, except those who earn more than the
prescribed amount.
Bargaining council agreements in Kimberley, Port Elizabeth and
Durban cover employees of firms running bus services. Employees
in the same industry in most of the rest of the country are
covered by wage determinations or black labour orders. All
exceptions are covered by the Basic Conditions of Employment Act.
Workers engaged in work connected with the arrival, departure,
provisioning, loading or unloading of a ship or aircraft, or the
loading or unloading of a truck or vehicle belonging to Transnet
or to a cartage contractor contracted to Transnet, are governed
by the Basic Conditions of Employment Act.
Workers in these activities may work more than the maximum
number of hours set out in the Act, only if the relevant minister
of state grants Transnet an exemption.
Transport workers
The transport industry is divided into the transport of goods
and the transport of people.
Where wage-determination agreements do not apply to certain
areas, the Basic Conditions of Employment Act comes into force.
Conditions of employment for Transnet personnel are set by
government regulation and by the Conditions of Employment Act,
1988, which provides for the appointment of employees, notice of
termination, retirement, discipline and other matters relating to
employment.
Shipping
The Merchant Shipping Act, 1951, offers various types of
protection to mariners. The Act regulates the payment of wages,
prohibits certain deductions from wages and makes provision for
compensation to be paid to mariners who have been improperly
dismissed. The Basic Conditions of Employment Act does not apply
to mariners employed on merchant ships.
Underpayment
Employers who contravene the terms of a wage-regulating
measure binding on them must be reported for investigation to the
local office of the Department of Labour (if the employees are
covered by a wage determination) or to the bargaining council (if
the employees fall under a bargaining council agreement). In some
cases, errant employers may be ordered to pay the employees what
they are owed; in other instances the matter may be referred to
the public prosecutor, who could institute proceedings against
the employer.
If the matter goes to court and the employer is found guilty,
the court may order that the worker be paid the money owing. If
the court finds that the employee agreed to accept a wage below
the set minimum level, it may order that the employee receive
none or only part of the amount that was underpaid.
If the public prosecutor decides not to prosecute the
employer, or, alternatively, if the employer is acquitted, the
worker may instruct lawyers to sue the employer for the recovery
of the amount underpaid (see disputes at work).
Other breaches
These procedures need not be followed in cases other than
underpayment. Where an employer breaks a wage-regulating measure
in any other way and the employee loses financially as a result,
the employee may institute a claim to recover this sum. Employees
who are aware that an employer intends to contravene a term or
measure can report the matter to the Department of Labour and
apply to the labour courtI for an interdictI or other relief.
