LABOUR LEGISLATION

CHAPTER 24
 BASIC CONDITIONS OF EMPLOYMENT
ACT

 The BCEA lays down minimum and maximum standards that must be
complied with by an employer
 The Act applies to all employers and employees except for members of the
National Defence Force, the National Intelligence Agency, the South
African Secret Service and unpaid volunteers working for charitable
organisations
 If a labour broker )(temporary service provider) breaches a provision of the
Act, both the labour broker and the employer client will be jointly and
severally liable
 REGULATION OF WORKING TIME

 The following provisions apply to all employees, except those who are senior managers, sales
staff who travel to the premises of customers and regulate their own hours of work, and
employees who work fewer than 24 hours a month for an employer
 Maximum ordinary hours a day:
 An employer may not allow an employee to work more than 45 ordinary hours in any week
 Similarly, an employee may not work more than 9 ordinary hours in any day if he works a 5-day
week, or 8 ordinary hours in any day if he works more than 3 days a week
 Overtime:
 Currently, there is a maximum number of three hours of overtime allowed each day, subject to
a maximum of ten hours of overtime each week
 By collective agreement, an employee may work up to a maximum of 15 hours’ overtime a
week
 A small-business employer wo employs fewer than 10 employees may also require employees
to work up to 15 hours’ overtime a week
 Minimum payment for overtime is 1½ times the normal wage
 Compressed working week:
 A written agreement can provide that the employee works up to 12 hours each day,
provided that the maximum number of hours each week is not exceeded
 Meal intervals:
 After 5 continuous hours worked, the employee must be granted a 1 hour meal
interval, which is unpaid unless the employee is required to be in attendance to
perform duties
 A written agreement may reduce the meal interval to 30 minutes, or do away with it, if
the employee works for fewer than 6 hours on a particular day
 Daily and weekly rest period:
 The employee must be allowed a daily rest period of at least 12 consecutive hours
before recommencing work
 By written agreement, this can be reduced to 10 hours if the employee lives on the
premises and the meal interval lasts for at least 3 hours
 The employee must also be allowed a weekly rest period of at least 36 consecutive
hours that must include a Sunday, unless otherwise agreed
 Sunday pay:
 The employee must receive double pay, unless he normally works on a Sunday
 In that case he must be paid at 1½ time the normal pay
 Night work:
 This means work regularly performed after 18:00 and before 06:00 the next day
 And employer may only allow an employee to perform night work if either the
employee is paid an allowance or working hours are reduced
 Public holidays:
 These days are paid time off and may only be worked by agreement
 If worked, the employee must be paid at least double the normal wage
 In terms of the Public Holidays Act, a public holiday is exchangeable by agreement for
another day
 LEAVE
 This does not apply to persons who work fewer than 24 hours a month for an employer
 Annual leave:
 Annual leave of 21 consecutive days must be grated on full remuneration for each completed
year of service
 Annual leave must be granted within 6 months of the end of each anniversary of employment
 Annual leave may not be taken during any other period of leave or during a period of notice
of termination of employment
 The employer cannot require the employee to take only a part of his leave
 Annual leave may not be cashed out, except on termination of employment
 Sick leave:
 A sick leave cycle means 36 months’ continuous employment
 The employee is entitled to the same number of days on paid sick leave during a sick leave
cycle as he would work during any 6-week period
 Generally, an employee accrues 1 day of paid sick leave for each completed month worked
 Proof of incapacity
 Sick leave does not have to be paid if the employee fails to produce a medical
certificate after an absence of more than 2 consecutive days, or if he has been absent
on more than two occasions during an 8-week period
 Maternity leave:
 The employee is entitled to 4 consecutive months’ maternity leave
 She does not have to be paid by the employer for this leave
 However, she is able to claim payment of maternity benefits in terms of the
Unemployment Insurance Act
 Family responsibility leave:
 An employee who works more than 4 days a week and who has been employed for
longer than 4 months, may take 3 days’ paid leave during each annual leave cycle
PARTICULARS OF EMPLOYMENT AND
REMUNERATION

 These administrative requirements do not apply to a person who works

fewer than 24 hours a month for an employer
 Written particulars of employment
 The employee must be given the following in writing:
 Full name and address of the employer, name and occupation of the
employee or a brief description of the work to be done, place or places of
work, date of commencement, ordinary hours and days of work, wage and
method of calculating wages, rate of pay for overtime work, cash
payments, payments in kind, frequency of remuneration, deductions to be
made, leave to which the employee is entitled, period of notice required
for termination, or date of termination if employment is for a specified
period, and a list of documents forming part of the contract of
employment
 Informed of rights:
 A summary of rights under the Act must be displayed at the workplace in the official
languages spoken at that workplace
 Keeping of records:
 Records must be kept for 3 years after termination of employment: employee’s name
and occupation; time worked; and remuneration paid
 Payment of remuneration:
 Provisions in contracts of employment agreeing to amounts that are less than those
provided by statute, or to waivers of benefits provided by statute, are void
 Payment in cash in sealed envelope, directly into banking account of employee
 Employee on a fixed-term contract must be given benefits that are the same, or of the
same value, as benefits given to a permanent employee
 Information about remuneration:
 Written detail must include the name of employer and address; the employee’s name
and occupation; period for which payment is made; amount and purpose of any
deduction; actual amount paid to employee; if relevant, the rate of remuneration and
overtime rate, number of ordinary and overtime hours, and the number of Sunday and
public holiday hours
 Deductions:
 These are not allowed unless agreed to specifically in writing, or are required in terms
of a collective agreement, law, or court order
 A deduction that is agreed to in writing can only be for the purposes of reimbursing
an employer for loss or damage that happened in the course of employment and
was the fault of the employee
 Calculation of remuneration and wages:
 The wage is simply what the employee earns as a basic salary or wage for the period
 Remuneration is calculated as being the wage plus allowances and bonuses

 Items included in the definition of remuneration for the purposes of calculating pay
for annual leave, notice pay and severance benefits are the following:
 Housing or accommodation allowance …
 Car allowance …
 Any cash payment made to the employee …
 Employer’s contributions to medical aid, pension provident fund …
 Employer’s contributions to funeral or death benefit schemes …
 TERMINATION OF EMPLOYMENT
 Notice of termination of employment:
 If the employee has been employed for fewer than 6 months – 1 week notice
 2 weeks’ notice – less than a year
 4 weeks’ notice – employed more than a year, of if he is a farm worker or domestic
worker who has worked for more than four weeks
 Payment instead of notice:
 Instead of allowing an employee to work the employer may pay the employee the
remuneration he would have received – payment in lieu of notice
 Severance pay:
 If an employee is dismissed for operational requirements (retrenched), the employee is
entitled to receive payment of 1 week’s remuneration for each completed year of
continuous service with that employer – unreasonable refusal = forfeits the right to it
 Certificate of service:
 On termination of employment, the employee is entitled to a certificate of service
stating his full name, name and address of employer, dates of commencement and
termination of service, title of job orbrief job description, remuneration as of date of
termination, and , if employee requests, the reasons for termination of employment
 LABOUR RELATIONS ACT
 Purpose, application and interpretation of the Act
 This Act covers all employers and employees, excluding those employed by the National
Defence Force, the National Intelligence Agency and the South African Secret Service.
 A labour broker (temporary service provider) is jointly and severally liable with the
employer client for breaking any collective agreement or arbitration award
 Primary objects of the Act are to promote economic development, social justice, and
peaceful labour relations by promoting orderly collective bargaining and employee
participation in decision-making in the workplace, promoting the effective resolution of
disputes, and giving effect to South Africa’s obligations as a member of the International
Labour Organisation
 It also gives effect to the rights contained in section 27 of the Constitution, which states
that every person shall have the right to fair labour practices; workers and employers shall
have the right to organize and bargain collectively; workers have the right to strike for the
purpose of collective bargaining and employers have recourse to lock-out for collective
bargaining
FREEDOM OF ASSOCIATION AND
GENERAL PROTECTIONS
 Every employee has the right to form, join, and participate in lawful trade
union activities
 The right of freedom of association is extended to all employees and
persons seeking employment
 All forms of victimization are prohibited
 Contracts infringing on the rights of trade unions to draw up their own rules
and constitutions are void
 ORGANISATIONAL RIGHTS

 Sufficiently representative trade unions have legal rights to:

 Access to the employer’s premises for recruitment, communication and

trade union purposes
 Hold meetings on the employer’s premises outside of working hours
 Conduct a ballot on the employer’s premises
 Obtain information for collective bargaining purposes
 Receive deductions for trade union subscriptions or levies
 CENTRALISED BARGAINING

 COLLECTIVE AGREEMENTS
 A collective agreement binds the parties entering into it
 It also will bind non-members of a trade union part to the agreement if:
 The employees are identified in the agreement
 The agreement expressly binds the employees
 The trade union has a majority of employees in the workplace as its members
▪ Agency shop arrangements:
▪ A representative trade union and an employer may enter into a collective agreement
called an agency shop agreement requiring the employer to deduct an agreed
agency fee from wages of employees who are identified in the agreement and who
are not members of the trade union
▪ Closed shop agreement:
▪ A representative trade union and an employer may enter into a collective agreement,
called a closed shop agreement, requiring all employees to be members of the trade
union
CENTRALISED BARGAINING
 BARGAINING COUNCILS
 Bargaining councils may negotiate agreements on a range of issues,
including wages and conditions of work, benefits, training schemes, and
disciplinary and grievance procedures …
 STATUTORY COUNCILS
 Where no bargaining council exists or is established, a party whose
members constitute at lease 30% of the employees in a sector and area
may apply for the establishment of a statutory council …
 INDUSTRIAL ACTION
 STRIKES
 A strike must involve two or more employees
 eg. A single domestic worker in a household cannot strike
 Striking employees may work for the same or different employers
 Striking employees must act with a common work-related purpose
 Eg industrial action over the removal of a politician is not a strike
 The action can be a partial or complete refusal to work or the retardation or
obstruction of work
 The reason must be to solve a grievance or dispute about a matter of mutual interest
that concerns employees and employers
 Eg a dispute between two unions does not constitute a strike nor doe a non-work-
related grievance
 The Act provides that every employee has the right to strike and every employer has
the right to lock-out, provided the dispute was referred to the CCMA, has remained
unresolved for 30 days, and 48 hours’ written notice to the other side has been given
 A strike or lock-out in terms of the Act is not a breach of contract and participants are
indemnified from civil liability
 Strikers engaging in a protected legal strike may not be dismissed for participation
 However, they may be validly dismissed for their conduct during the strike, or for a
reason based on the employer’s operational requirements
 A secondary strike is a strike in support of a strike by other employees against their
employer
 Secondary strikes are legal if the employees have complied with the provisions of the
Act and have given the employer 7 days’ written notice prior to the commencement
of the strike
 In respect of any strike or lock-out not in compliance with the Act, the Labour Court
may grant an interdict, or may order payment of compensation for any loss attributed
to the strike or lock-out
 Participation in such a strike may constitute a fair reason for dismissal
 Employers may hire replacement labour to do the work of employees engaged in a
protected strike if the employer’s service is a designated maintenance service, or in
respect of an unprotected strike
 Replacement labour may be engaged only after the employer has given the trade
union 7 days’ notice of his intention to do so
INDUSTRIAL ACTION
 LOCK-OUTS
 The employer must physically exclude employees from the workplace
 The action must be to force employees to accept a demand of the employer
about a matter that concerns the employer and the employees
 The procedures for a protected lock-out are the same as those for a protected
strike: the issues in the dispute must have been referred to a council or the
CCMA, remained unresolved for 30 days and 48 hours’ written notice to the
other side has been given
 The effects of a protected lock-out are the employer does not commit a delict
or breach of contract
 An employer may not dismiss employees who have been locked out
 The employer may use replacement labour only if the lock-out is in response to
a strike
 INDUSTRIAL ACTION
 PICKETING
 Only a registered trade union may authorise a picket
 A picket may be held at any place to which the public has access outside the premises
of an employer
 Unions need the employer’s permission to picket inside the workplace …
 SECONDARY ACTION
 Secondary action happens when employees strike in support of a strike by other
employees
 Secondary action will be protected if the main strike is a protected strike and the
secondary strikers give 7 days notice to their employer or the relevant employers’
organisation
 PROTEST ACTION TO DEFENT THE SOCIA-ECONOMIC INTERESTS OF EMPLOYEES
 The Act also makes provision for protected stayaways in support of social-economic issue
 COMPENSATION FOR LOSS ATTRIBUTABLE TO INDUSTRIAL ACTION
 An employer or employees can claim compensation from the Labour Court if they suffer
any loss as a result of an unprotected strike or lock-out or as a result of any conduct
connected to the strike or lock-out that does not comply with the Act
 WORKPLACE FORUMS
 These forums are committees of employees elected by employees in a workplace
 They meet employers on a regular basis for consultation on workplace issues
 On application from a representative trade union, the CCMA will establish a workplace forum where the
employer has at least 100 employees in the workplace
 The employer must consult the forum with a view to reaching agreement on the following matter:
▪ New technologies and the restructuring of the workplace
▪ Changes to the organisation of work
▪ Partial or total plant closures
▪ Mergers and transfers of ownership that may affect employees
▪ Retrenchments
▪ Exemptions from any collective agreement
▪ Job grading
▪ Criteria for merit increases or payment of discretionary bonuses
▪ Education and training
▪ Product development plans
▪ Export promotion
WORKPLACE FORUMS
 Joint decision-making is required regarding the following:
 Advancement of persons disadvantaged by unfair discrimination
 Disciplinary code and procedure
 Rules of conduct not related to work performance of employees
 Changes to rules of any social benefit scheme operated by the employer
TRADE UNIONS AND EMPLOYERS’
ORGANISATIONS
 Registration of trade unions and employers’ organisations with the
Department of Labour is voluntary
 Trade unions or employers’ organisations whose constitutions discriminate
on grounds of race or sex cannot be registered
 DISPUTE RESOLUTION
 MEDIATION (CONCILATION) AND ARBITRATION
 Generally, the terms mediation and conciliation are interchangeable, except for a few
technical differences
 Mediation involves the services of an acceptable, impartial, and neutral third party to assist
the parties in dealing with their dispute and, where possible, to reach agreement
 Conciliation is a voluntary process, both in its initiation and in its continuations
 Eg the Act provides for conciliation between the employer and the employee in respect of a
dismissal
 A conciliator will be appointed by the CCMA, or one can be agreed upon privately between
the parties
 ARBITRATION
 Is a process by which an impartial third party decides the issue after reviewing evidence and
hearing argument from the parties
 It may be binding on the parties, either through agreement or by operation of law, or it may
be non-binding in that the decision may be only advisory
 COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (CCMA) ……..
 THE LABOUR COURT ………
 UNFAIR DISMISSAL

 No employee may be unfairly dismissed

 Dismissal means the termination of an employment contract, the failure to renew a
fixed-term contract, the refusal to allow an employee to return to work after
absence due to pregnancy as well as selective non-re-employment and
constructive dismissal
 In order for the employee to succeed with a claim based on constructive dismissal,
he must be able to prove the-at:
▪ The employment contract was terminated
▪ The conduct of the employer rendered the continues employment intolerable
▪ The employee resigned as a result of the intolerable behaviour of the employer
▪ The resignation or termination was a matter of last resort
 AUTOMATICALLY UNFAIR DISMISSAL
 A dismissal will be automatically unfair under the Act if it was for one of the following
reasons:
▪ The employee participated in a legally-protected strike
▪ The employee refused to do work normally done by an employee participating in a
legally-protected strike
▪ To compel the employee to accept a demand made by the employer
▪ The employee was pregnant, or any reason related to her pregnancy
▪ The employer unfairly discriminated against the employee on an arbitrary ground,
including race, gender, sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, political opinion, culture, language, marital status,
or family responsibility
▪ When transferring to a new business the employee was provided with less favourable
conditions of employment, or the new employer does not want to accept a transferring
employee
▪ The employer subjects the employee to an occupational detriment for making a
protected disclosure in terms of the Protected Disclosures Act
 DEEMED UNFAIR DISMISSAL

 A dismissal that is not automatically unfair will be deemed unfair if the employer fails to
prove that the dismissal was both for a fair reason connected with the employee’s
capacity, conduct or operational requirements; and in compliance with a fair procedure
 The onus is on the employer to prove the reason for dismissal and to justify the fairness of
both the reason for the dismissal and the procedure followed for dismissal
 INDIVIDUAL DISMISSAL FOR
MISCONDUCT OR INCAPACITY

 An employee’s conduct refers to the standard of behaviour that an employee must

exhibit while in employment
 Eg if an employee commits theft or assaults someone at work, he may have his
employment terminated for misconduct

 A dismissal connected with the employee’s capacity will be unfair unless the employer
proves that:
▪ There was a material breach of required work standards
▪ The employee was aware of the required standards
▪ The employee was given a fair opportunity to meet the required standards
▪ Dismissal was an appropriate sanction for the breach of the required standards
THE END