By Carol Tissiman
If you are interested in this topic, take a look at our University of Cape Town (Law@Work) Practical Labour Law course.
The Basic Conditions of Employment Act (BCEA) determines minimum standards that apply to any contract of employment, except members of the National Defence Force, the National Intelligence Agency, the South African Secret Service and unpaid charity workers.
There are a few specific exemptions such as senior managerial employees earning more than amounts prescribed by the Minister, salespersons who travel to the premises of customers and regulate their own hours of work and those who work for less than 24 hours a month who are exempted from the provisions governing hours of work. The current threshold is R115 572,00 per year, excluding amounts paid for overtime work.
Other than the specific exemptions listed above, an employer cannot decide that the provisions laid out in the BCEA will not apply for a particular employee, even if the employee agrees to them in the contract of employment. The following article provides a basic overview of some of the provisions of the BCEA applicable to employers in South Africa.
Definition of an employee
The Act includes a very broad definition of an employee, namely any person who assists in carrying out or conducting the people in a queuebusiness of an employer or who works for another person and receives any remuneration. An employee who works more than 24 hours per month is automatically protected by minimum standards set out in the Act. Employers should be careful of words such as “casual’ and “temporary” when categorising an employee, as the Act does not recognise these descriptions.
Working hours and pay
Normal working hours (excluding overtime)
An employee may not be made to work more than 45 hours a week (Monday to Saturday). If an employee works a five-day work week, they may not work more than nine hours per day. If an employee works a six-day work week, they may not work more than eight hours per day.
Overtime work is voluntary. But if an employee has agreed in terms of the employment contract to work overtime when necessary, then the employee is obliged to work that agreed overtime. If the employee refuses to work the agreed overtime, they will be in breech of contract and the employer can take disciplinary action against him/her. Overtime must be paid at 1.5 times the employer's normal wage, or an employee may agree to receive paid time off. A worker may not work more than three hours of overtime per day or 10 hours per week.
Work on Sundays in many sectors is generally voluntary and a worker cannot be forced to work on this day. Where Sunday is not a normal working day, Sunday work must be paid double the daily wage. If the employee ordinarily works on a Sunday by agreement he/she must be paid one and one-half times the wage for every hour worked. The employer and employee may agree to the equivalent paid time off in return for working on a Sunday.
The days mentioned in the Public Holidays Act must be given as leave, but the parties can agree to alternative days off in lieu of a public holiday. Work on a public holiday is entirely voluntary - a worker cannot be forced to work on such a day. If the employee does work on a public holiday, or any portion thereof, they must be paid double the normal day’s wage for the period worked.
Breaks and rest periods
A worker is entitled to a one-hour break for a meal after working not more than five hours. Such interval may be reduced to 30 minutes by agreement between the employer and employee. If, by agreement, an employee works during this period, remuneration must be paid at the normal rate.
Daily and weekly rest periods
An employer must allow an employee a daily rest period of at least 12 consecutive hours and a weekly rest period of at least 36 hours. The weekly rest period must include a Sunday unless it is otherwise agreed. The daily rest period may, by agreement, be extended to 60 consecutive hours for every two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently.
Annual leave must be at least 21 consecutive days for full time workers or, by agreement, one day for every 17 days worked or one hour for every 17 hours worked. The leave must be granted not later than 6 months after the completion of a period of 12 consecutive months of employment. The leave may not overlap with any period of sick leave, nor with a period of notice of termination of the contract.
During every sick leave cycle of 36 months, an employee is entitled to paid sick leave equal to the number of days the employee would normally work during a period of six weeks. During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
An employee is entitled to at least four consecutive months maternity leave. An employer is not obliged to pay the worker for the period for which she is off work due to her pregnancy. When on maternity leave a worker may claim maternity benefits from the Unemployment Insurance Fund (UIF). The employer may agree to pay part of or a full salary/wage during maternity leave, but the employee will then not be entitled to the UIF benefit unless the remuneration she receives is less than one third of her salary.
Family responsibility leave
Employees who have been employed for longer than four months and for at least four days a week are entitled to take three days paid family responsibility leave per year of employment. This applies only to situations including when the employee's child is born, or when the employee's child is sick or in the event of the death of an employee's spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
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