The Basic Conditions of Employment Act of 1997 was developed to ensure that labour practices across industries are fair, just and in line with Section 23(1) of the Constitution. This Act outlines employment conditions relating to work hours, leave, termination of contracts, and more, which provide labour guidelines for employers and employees to follow that are fair. We outline a few of the most important elements of the BCEA that apply to the metals and engineering sectors below.
The Purpose and Application of the BCEA
Labour relations in South Africa has always been a contentious issue, especially considering the country’s history and how various groups of people were taken advantage of. It is because of this reason that the BCEA was drawn up. The purpose of this Act is to advance economic development and social justice by:
- Giving effect to and regulating the right to fair labour practices as outlined in the Constitution
- Establishing and enforcing basic conditions of employment
- Regulating the variation of the basic conditions of employment
- Giving effect to obligations incurred by the Republic as a member state of the International Labour Organisation
The Act applies to all employees and employers except members of the National Defense Force, National Intelligence Agency, South African Secret Service, and unpaid volunteers working for an organisation serving a charitable purpose.
The BCEA provides a framework and code of good practice for fair and regulated employment conditions and ensures that no employee or employer is being taken advantage of in any way. The Act also ensures that both employees and employers know what is expected from each party when entering into an employment relationship. The focus of the Act is the protection of employees and employers.
It must be noted that the BCEA has strict regulations on the employment of children, and no person may employ a child who is under 15 years of age. Children may not be employed in jobs that put them at risk in any way or are inappropriate for their age. This type of forced labour is punishable. To note that the provisions of the BCEA does not apply to employees who work less than 24 hours per month.
BCEA: Working hours and overtime (this section is not applicable for employees earning over the threshold amount)
According to the BCEA, every employer must regulate each employee’s working time and work week in line with occupational health and safety regulations. The employer is also required to consider the employees family responsibilities. In accordance with this law, an employer may not require or permit an employee to work more than:
- 45 hours in any week
- Nine hours in any day if the employee works for five days or fewer in a week
- Eight hours in any day if the employee works more than five days in a week
- However, by agreement employees may work 12 hour shifts and hours may be averaged.
If overtime is required on the employer’s part, the employer will need to discuss the overtime with the employee and an agreement on the amount of overtime will need to be decided. In accordance with this Act, an employer may not require or permit an employee to:
- Work more than three hours overtime a day or ten hours’ overtime a week
- An employer must pay the employee at one and one-half times the employee’s normal wage for overtime worked.
- In some cases, the employer and employee could come to an agreement where the employer will pay an employee not less than the employees ordinary wage for the overtime worked and grant the employee at least 30 minutes off on full pay for every hour of overtime worked. Another option would be to grant an employee at least 90 minutes’ paid time off for each hour of overtime worked. This paid time off must be granted within one month of the employee becoming entitled to it.
- An employer must allow an employee a daily rest period of at least twelve consecutive hours between ending and recommencing work and a weekly rest period of at least 36 consecutive hours. Unless otherwise agreed, this must include Sunday.
- A daily rest period made by written collective agreement may be reduced to 10 hours for an employee who lives on the premises at which the workplace is situated or whose meal interval lasts for at least three hours.
- An agreement in writing between the employer and employee may provide for a rest period of at least 60 consecutive hours every two weeks or an employee’s weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently.
Night work refers to work performed after 18:00 pm and before 06:00 am the next day. An employer may only require or permit an employee to perform night work if this has been agreed upon by both parties, in a written agreement or orally if the employee cannot understand written communication. Night work may only be allowed if:
- The employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours
- Transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.
It must be noted that employees who perform night shifts regularly, are entitled to undergo periodic medical examinations to ensure that their health is not being affected by performing night work, and that the employer will cover this cost. Should an employee be declared unfit for night work, they will be moved to a day shift. A regular night shift worker is an employee who works for a period of longer than one hour after 23:00 pm and before 06:00 am at least five times per month or 50 times per year.
In accordance with this Act, an employer may not require an employee to work on a public holiday unless an agreement has been made and accepted by both parties. If a public holiday falls on a day which an employee would ordinarily work, an employer must pay an employee:
- Who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;
- Who does work on the public holiday at least double the amount that they would ordinarily receive on a workday
- If an employee works on a public holiday on which the employee would not ordinarily work. In this case, the employer must pay that employee an amount equal to the employee’s ordinary daily wage and the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.
- For a public holiday on the employee’s usual payday.
- If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday. But if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.
BCEA: Leave Regulations
The BCEA outlines several different leave regulations that apply to different employment conditions. These include the following:
The “annual leave cycle” refers to a period of 12 months employment with the same employer immediately following an employee’s commencement of employment or the completion of that employee’s prior leave cycle. The following requirements need to be met in terms of annual leave:
- An employer must grant an employee at least 21 consecutive days of annual leave with full remuneration regarding each leave cycle. The employer and employee may choose, by agreement, to one day of annual leave of full remuneration for every 17 days on which the employee worked or was entitled to be paid or one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.
- An employee is entitled to take leave accumulated in an annual leave cycle on consecutive days. An employer must grant yearly leave no later than six months after the end of the annual leave cycle.
- An employer may not require or permit an employee to take annual leave during any other period of leave to which the employee is entitled to or any period of notice of termination of employment.
- An employer must permit an employee, at the employee’s written request, to take leave during a period of unpaid leave.
- An employer may reduce an employee’s entitlement to annual leave by the number of days of occasional leave of full remuneration granted to the employee at the employee’s request within that leave cycle.
- An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would ordinarily have worked.
- An employer may not require or permit an employee to work for the employer during any period of annual leave.
- Annual leave must be taken in accordance with an agreement between the employer and employee.
- An employer may not pay an employee instead of granting paid leave in terms of this section except on termination of employment.
In accordance with this Act, a “sick leave cycle” refers to the period of 36 months of an employee’s commencement of employment or the completion of that employee’s prior sick leave cycle. During every sick leave cycle, 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. As an example of this, during the first six months of employment, an employee is entitled to one day of paid sick leave for every 26 days worked. The following needs to be adhered to in relation to sick leave:
- An employer must pay an employee for a day’s sick leave at the wage the employee would ordinarily have received for work on that day or on the employee’s usual payday.
- An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in terms of this section, if the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay.
- An employer is entitled to ask for a medical certificate in relation to sick days used.
Maternity and Parental Leave
Employees are entitled to several different rights and leave in relation to the BCEA concerning the birth of a child, adoption or surrogacy of a child. We examine these below:
Maternity Leave – 4 months of unpaid maternity leave (claim from UIF)
An employee is entitled to at least four consecutive months of maternity leave. An employee may commence maternity leave at any time from four weeks before the expected date of birth, unless otherwise agreed or on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee’s health or that of her unborn child. It must be noted that no employee may work for six weeks after her child’s birth, unless a medical practitioner or midwife certifies that she is fit to do so.
If an employee has a miscarriage during the third trimester of pregnancy or bears a still born child, that employee is entitled to six weeks maternity leave.
The employee will need to notify the employer in writing, unless the employee is unable to do so, of the date of maternity leave’s commencement and when she will be returning to work after maternity leave. This notification must be given at least four weeks before the intended start of maternity leave or as soon as reasonably practical.
An employee who is a parent of a child is entitled to at least 10 consecutive unpaid days of parental leave. These parental leave laws will commence on the infant’s date of birth, the date of an adoption order being granted or the date that a child is placed in the care of a prospective adoptive parent pending the final adoption order. This amendment is not gender specific, and any employee, regardless of gender, may qualify for parental leave depending on their circumstances. Employees can claim from UIF at 66% of their basic pay.
Adopting parent/s as amended in section 25B of BCEA - 10 consecutive unpaid weeks of leave
An employee who is an adoptive parent is entitled to at least 10 consecutive weeks leave from the date of an adoption order being granted or the date that the child is placed in their care pending the finalisation of an adoption order. In the case of two adoptive parents, only one parent will be eligible for the adoption leave. The other will be able to apply for the 10 day unpaid parental leave mentioned above.
Commissioning parent/s as amended in section 25C of BCEA - 10 consecutive weeks of unpaid leave
An employee who is a commissioning parent in a surrogacy agreement is entitled to at least 10 consecutive weeks of commissioning parent leave, which may begin on the infant’s birth date. In the case of two commissioning parents in a surrogate motherhood agreement, only one is entitled to the commissioning parental leave, whereas the other will be required to apply for parental leave, which is limited to 10 days. The amendments do not make provision for any leave that the surrogate mother may take. While she would probably not be entitled to the standard four months’ maternity leave, she would in all likelihood be entitled to at least six weeks’ unpaid maternity leave as per Section 25(3) of the BCEA
Family responsibility leave
Family responsibility leave applies to employees who have been employed for longer than four months and who work at least four days a week for the employer. An employer must grant an employee during each annual leave cycle, at the request of the employee, three days’ paid leave which the employee is entitled to take:
- When the employee’s child is sick, the child must be younger than 18.
- In the event of the death of the employee’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
An employer must pay an employee for a day’s family responsibility leave the wage that the employee would ordinarily have received for work on that day and on the employee’s usual payday. Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated for which the leave was required.
Employment Contracts and Job Information
According to the BCEA, the particulars of employment must be supplied in writing to the employee on the employment commencement date. These particulars are usually presented as part of the contract of employment. The employment contract would include information on the following:
- The full name and address of the employer
- The name and occupation of the employee or a brief description of the work for which the employee is employed
- The place of work and where the employee is required or permitted to work at various places
- The date on which the employment began
- The employee’s ordinary hours of work and days of work
- The employee’s wage or the rate and method of calculating wages
- The rate of pay for overtime work
- Any other cash payments that the employee is entitled to
- Any payment in kind that the employee is entitled to and the value of the payment in kind
- How frequently remuneration will be paid
- Any deductions to be made from the employee’s remuneration
- The leave to which the employee is entitled to
- The period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to end
- A description of any council or sectoral determination which covers the employer’s business
- Any period of employment with a previous employer that counts towards the employees period of employment
If an employee is not able to understand the written particulars in the employment contract, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. The employer must keep all written particulars and contracts for a period of three years after the termination of employment.
Payment of remuneration
In accordance with the BCEA an employer must pay an employee any monetary remuneration in South African currency daily, weekly, fortnightly or monthly as agreed upon. Remuneration must be paid either in cash, by cheque or by direct deposit into an account designated by the employee.
Any remuneration paid in cash or by cheque must be given to each employee at the workplace or at a place agreed to by the employee during the employee’s working hours or within 15 minutes of the commencement or conclusion of those hours. This should be given to the employee in a sealed envelope, which becomes the property of the employee.
An employer must pay remuneration no later than seven days after the completion of the period for which the remuneration is payable or the termination of the contract of employment.
An employer must give the employee the following information in writing when payments are made, this is usually in the form of a payslip and includes:
- The employer’s name and address
- The employee’s name and occupation
- The period for which the payment is made
- The employee’s monetary remuneration
- The amount and purpose of any deduction made from the remuneration
- The actual amount paid to the employee
- The employee’s rate of remuneration and overtime rate
- The number of ordinary and overtime hours worked by the employee during the period for which the payment is made
- The number of hours worked by the employee on a Sunday or public holiday during that period
Termination of employment
In the case of termination of employment, an employment contract can be terminated on a notice period of:
- No less than one week, if the employee has been employed for four weeks or less;
- Two weeks, if the employee has been employed for more than four weeks but not more than one year;
- Four weeks, if the employee has been employed for one year.
The BCEA highlights several employment termination payment regulations that need to be adhered to in relation to the termination of an employment contract. These include:
- Severance pay – Employees should be paid at least one week’s remuneration for each completed and continued year of service. In this case, remuneration includes the employee’s basic salary, payment in kind and discretionary payments related to performance and working hours. Should an employee unreasonably refuse an offer of alternative employment he/she will not be entitled to a severance package – this is outlined in Sections 41(2), 41(4) of the Basic Conditions of Employment Act.
- Leave pay-out – all outstanding leave is to be paid out, this includes annual leave or time off that has not been taken.
- Notice pay – If employed for less than six months – one week’s notice pay must be paid to the employee. If employed for more than six months but not more than one year – two weeks’ notice pay must be paid to the employee. If employed for more than a year – four weeks’ notice must be paid to the employee. The employer may require employees to work/not to work during the notice period.
Implications if employer fails to comply with the BCEA
The BCEA provides a strict framework and list of requirements that an employer needs to follow to ensure fair labour practices. In the case of non-compliance on behalf of an employer, there will be severe consequences.
If employers do not conform to these regulations, the employee can lodge a complaint or a dispute with the CCMA or relevant labour court. This process not only has a financial impact on the business but may reflect poorly on the company’s reputation and business image. The breakdown of an employment relationship due to non-compliance also heavily impacts employee morale and the overall working environment and can lead to a mistrust of management and those in leadership positions. All of which have a negative impact on productivity, operations and ultimately profitability.
It is essential that you as the employer know what the laws are, what protocols, in terms of the BCEA, need to be followed and what is required of both you and the employee to ensure that fair labour practices are adhered to. This will positively impact your business and employees.
The BCEA is an essential piece of legislation that ensures that fair labour practices are being adhered to from the start of the employment relationship to the end. It is critical for businesses, especially those within the metal and engineering industry, to have line of sight of all of these regulations to ensure compliance.