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You and Your Rights

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last updated on 3 Aug 2008
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You and Your Rights

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.

Employees' Rights

The employees' basic rights

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.

Warning - When exemptions are granted to businesses

If your conditions of work are less favourable than those laid down for your industry, it could be that the company for which you work is exempted from a wage-regulating measure. Exemptions to pay lower wages, for instance, are granted to employers by the bargaining or statutory council under which an employee falls, if there is one, or by the Department of Labour.

If you have doubts about your employer's exemption, you can obtain clarification from the relevant bargaining or statutory council or the Department of Labour.

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.

Warning - Minimum employment standards will change

The Department of Labour signalled its intention to replace the Basic Conditions of Employment Act and Wage Act with a new Employment Standards Statute. The discussion document on the proposed new statute stated that a draft bill would probably be tabled in Parliament by the end of 1996.

Quick Tip - Determinig your conditions of employment

Although the variety of provisions that regulate the working conditions of employees may seem mind-boggling at first, there are several ways in which you can gain access to the measures that govern the industry in which you are employed. For instance:

  • Employers covered by the Basic Conditions of Employment Act and the Mines and Works Act are required by law to exhibit a summary of these Acts on their premises;
  • Employers falling under a wage-regulating measure must keep a copy on their premises and allow employees to read it;
  • Mine employees covered by the 'codes' of the Chamber of Mines may obtain these documents from their employer's time-keeping department.

All state employees have the right to inspect regulations that govern their conditions of employment, although sometimes access to these documents is not enough. Often, employees will need assistance, not only to determine the measures under which they fall but also to interpret them. Frequently, the language used is difficult to understand and the definitions are often long and complex. Nevertheless, you can obtain help at a number of places. For instance, if you are a member of a trade union you can approach your union for advice. Similarly, an employee in an industry covered by a bargaining or statutory council agreement can approach the council, which has inspectors who investigate workers' complaints.Employees falling under a bargaining or statutory council should find the name of the council printed on their wage slip.

Workers covered by a wage-determination can approach the Department of Labour, whose inspectors can also be asked to investigate complaints.

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.

Case History - A case of selective dismissal

Four employees were sent home after a confrontation with their employer over a deduction from their wages to pay for rags which were missing from the garage in question. When they reported for work the next day, three of them were allowed to resume work and the fourth, Chauke, was summarily dismissed on the grounds of incompetence.

The Industrial Court found that, in spite of the fact that no inquiry was held, the dismissal was fair.

  • This finding was overturned by the Labour Appeal Court which found that fairness dictates that all em-ployees be treated alike - Chauke was in fact dismissed because the employer thought he had instigated the confrontation. The court awarded him two months' compensation.

(Chauke v Vedovato Car Maintenance, 1995)

Warning - Protection against victimisation

Often, employees are reluctant to report instances of underpayment and other breaches of Acts relating to employment and wage-regulating measures for fear of being victimised by their employers.

Consequently, protection is given to workers who are dismissed or have their conditions of work unfavourably altered for giving information to an inspector, giving evidence at a wage-board hearing or reporting an employer to a bargaining council or the Department of Labour. It is an offence for an employer to penalise a worker in this way.

Any instance of victimisation should be reported to the relevant bargaining or statutory council, if there is one, or to the Department of Labour. Besides the criminal prosecution, the worker will often be able to claim the unpaid amount and damages for being dismissed, and might be reinstated.

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.

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
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