Terms and conditions of employment
The Basic Conditions of Employment Act 75 of 1997 (BCEA) establishes a floor of basic minimum rights for all employees. These rights are generally included in a contract of employment.
It is important to note, however, that some employees are covered by only some sections of the BCEA, while others are completely excluded from the BCEA. The information sheet: ‘Exclusions from the BCEA’ discusses this matter in more detail.
The Basic Conditions of Employment Amendment Act 7 of 2018 broadens the scope of legislative protection to include “workers” in terms of a failure by an employer to comply with the provisions of the National Minimum Wage Act 9 of 2018 (NMWA) and the failure by an employer to comply with the daily wage payment (see below). “Worker” means any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind” (see section 1 of the NMWA).
When contracting an employee, the following are some of the key provisions in the BCEA that an employer needs to be aware of:
Regulation of working time (sections 7 – 9)
An employee may not work more than:
- 45 ordinary hours per week;
- 9 ordinary hours in any day if the employee works no more than 5 days a week;
- 8 ordinary hours a day if the employee works more than 5 days a week.
Daily wage payment (section 9A)
Employees or workers who earn less than the statutory threshold set by the Minister of Labour, who work for less than four hours of work on any day must be paid for four hours of work on that day. For example, if an employer contracts an employee to work for three hours a day, that employer must be paid a wage equivalent to four hours of work. If Ms X works for three hours a day at R20-00 per hour, the employer needs to pay the employee a minimum of R80-00 per day (four hours).
Interpretation of “day” and “daily” when calculating periods of time
In section 8 “day” and “daily” mean a period of 24 hours measured from the time the employee normally commences work. This is relevant to the application of sections 9 to 16.
Overtime (section 10)
Overtime work is not compulsory – there must be an agreement to work overtime in a contract of employment or collective agreement, or on an ad hoc basis.
An employee may not agree to work more than 10 hours overtime a week, but in terms of a collective agreement workers may work up to 15 hours per week for up to two months in any year (section 10(6(a)). This is designed to cope with peak demand for labour, e.g. the agribusiness.
By agreement workers may work up to 12 hours on any one day (section 10(1A)).
Overtime payments (section 10)
- Overtime is paid at time and a half
- It must be paid within one month of the overtime being worked.
- By agreement the employee can get paid time off in lieu of overtime pay: at time and a half.
Overtime payments are not included for the purposes of determining whether the employee falls within the threshold of earnings issued by the Minister of Labour from time to time in terms of section 6(3) of the BCEA.
Meal intervals (section 14)
- After five hours of continuous work, an employee is entitled to a meal interval of at least one continuous hour. Work is considered continuous unless interrupted by an interval of at least 60 minutes.
- Meal intervals are generally unpaid. However, an employee must be paid for a meal interval where the employee is required to work or be available for work.
- Meal intervals may be reduced to not less than 30 minutes by agreement in writing and may be dispensed with where the employee works fewer than 6 hours a day.
Daily and weekly rest periods (section 15)
An employee is entitled to:
- A daily rest period of 12 consecutive hours per day (this may be reduced to 10 hours if the employee lives on site and the employee has a meal interval of at least three hours);
- A weekly period of 36 consecutive hours which, unless otherwise agreed, must include a Sunday.
Sunday work (section 16)
An employee is entitled to the following:
- If Sunday is a normal working day (which may be on a rotating shift), an employee must be paid at time and a half for the hours actually worked.
- If Sunday is not a normal working day, an employee must be paid at double time for the time actually worked, with a minimum of one day’s wages.
- If a shift spans Saturday and Sunday and more than half the shift falls on Sunday the employee must be paid at Sunday rates for the whole shift. However, if half or more of the shift falls on the Saturday the employee must be paid at Saturday rates for the whole shift.
- Employees may be granted paid time off equivalent to the rate they would have received for their Sunday work. This leave must be granted within a month of the employee becoming entitled to it. However, by written agreement the employee could take the leave up to 12 months after becoming entitled to it. In that sense the leave can be ‘banked’ until a time when it is more convenient for the employee to take leave.
- In certain sectors, such as retail, the sectoral determination provides that Sunday may be paid at an ordinary rate of pay provided that the employee works no more than 40 hours in a week, and on no more than 3 consecutive Sundays.
Night work between 18h00 and 06h00 (section 17)
Night work between 18h00 and 06h00 is only permitted if:
- the employee agrees to the night work; and
- the employee is compensated for the night work either in the form of a shift allowance (no rate is prescribed by law) or by a reduction of working hours; and
- transportation is available between the employee’s place of residence and the workplace (this must be available but it is not required that the employer pay for this).
- Night work that is performed on a regular basis between 23h00 and 06h00 is only permitted if the employer provides information about any health and safety hazards associated with this type of work and the employee’s right to undergo a medical examination. The employer is required to facilitate and pay for the medical examination when the employee requests the examination.
- Collective agreements may make provision for night work.
Public holidays (section 18)
It is not compulsory to work on a public holiday, but this may be required in terms of an agreement (collective agreement or individual contract).
An employee is entitled to the following:
- If the employee works on a public holiday which falls on a day on which he would ordinarily have worked, the employee is entitled to the greater of double time OR an ordinary day’s pay plus what the employee actually earned on that day (typically if this was hourly pay and the employee did not work a full day s/he would still get double pay).
- If the employee works on a public holiday on which s/he would not ordinarily have worked, the ordinary day’s pay plus the amount actually earned that day.
- If the employee does not work on a public holiday which falls on a day on which an employee would ordinarily have worked the employee must be paid at the normal rate of pay.
Annual leave (section 20)
- An employee is entitled to 21 consecutive days’ annual leave per 12 month leave cycle on full remuneration.
- Leave accrues at the rate of one day for every 17 days worked or one hour for every 17 hours worked.
- As a general rule annual leave must be taken no later than 6 months after the end of the annual leave cycle. It is unclear whether the BCEA permits employees to accumulate leave not taken within 6 months of the end of the leave cycle.
- Annual leave may not be taken during any period in which the employee is entitled to other leave or during any notice period, so leave must run consecutively not concurrently.
- Leave must be taken at a time agreed between the employer and employee or, if there is no agreement, at a time determined by the employer.
- Depending on the collective agreements in place, there may be a distinction between annual leave and an annual shutdown by the employer.
Pay for annual leave (section 21)
- An employer must pay an employee his/her full leave pay before the beginning of the period of leave or, by agreement, on the employee’s usual pay day.
Sick leave (section 22)
- An employee is entitled to an amount of paid sick leave (per sick leave cycle of 36 months) equal to the number of days the employee would normally work during a period of six weeks. Thus, a person who works 2 days a week is entitled to 2 days X 6 weeks, i.e. 12 days leave in a 3-year cycle.
- During the first 6 months of employment sick leave accrues at the rate of 1 day for every 26 days worked.
- Sick leave is paid at an employee’s normal rate of pay. However, the amount of sick leave pay may be reduced by agreement if the number of sick days is increased commensurate with the decrease in pay and the employee is paid at least 75% of the usual daily wage for any day of sick leave.
- An employee need not be paid for sick leave where the employee is absent from work for more than two consecutive days or on more than two occasions in an 8-week period and, on request by the employer does not produce a medical certificate stating that the employee was unable to work for the relevant period of absence.
Maternity leave (section 25)
- An employee is entitled to 4 consecutive months’ maternity leave – this is not paid leave and the purpose of this leave is a guarantee that the employee can return to work after the baby is born. Payment is only due from the employer by agreement, or from the Unemployment Insurance Fund if the mother is a contributor in terms of the Unemployment Insurance Act.
- An employee may not work for 6 weeks after the birth of her child unless a medical practitioner or midwife certifies that she is fit to do so.
- An employee is protected against discrimination on account of her pregnancy in terms of the EEA.
- The employee is required to notify the employer of the date she intends to commence maternity leave and the date of her intended return. That notification must be given 4 weeks prior to commencing maternity leave unless that is not reasonably practicable. Of course, if the employee had, for example, planned to take only 3 months’ leave but decides after the baby is born that she will need another month, she must inform the employer. If the employer refuses to allow her the additional month, this may probably be a breach of the EEA, because it may be found to be conduct adverse to the woman by reason of her pregnancy.
Protection of employees before and after the birth of a child (section 26)
- A pregnant employee or an employee who is nursing her child may not perform any work that is hazardous to the health of the employee or the baby.
- If the employee performs night work or her work poses a hazard to her or the baby, during an employee’s pregnancy and for 6 months after the birth of the child the employer must offer the employee suitable alternative work on terms and conditions not less favourable than her ordinary terms and conditions, if it is practicable to do so.
- The Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child was issued in terms of the BCEA and provides a useful guide as to what is required from employers in this context.
Family responsibility leave (section 27)
If an employee:
- Has worked for an employer for more than 4 months; and
- Works more than 4 days a week for that employer;
- The employee is entitled to 3 days’ paid leave in an annual leave cycle to be taken when the employee’s child is born, if the employee’s child is sick or for the death of an immediate family member (spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling).
Before paying an employee for leave in terms of this section, the employer may require reasonable proof of the event giving rise to the need for the leave.
Collective agreements may contain special provisions relating to family responsibility leave.
Particulars of employment and remuneration (sections 28 and 29)
Employers are required to provide employees on commencement of employment with a number of specific details relating to their employment in writing.
All employees (including employees in the domestic sector) are entitled to all the information listed in section 29 (a) to (p) except where an employer employs fewer than five workers. In that case, the employees concerned are not entitled to descriptions of any council or sectoral determination covering the employer’s business; any period of employment with a previous employer that counts towards the employee’s period of employment and a list of any other documents that form part of the contract of employment and access to such documents. It is worth noting that, although the BCEA requires the employer to supply employees with particulars of employment it does not mean that it is a requirement that a contract of employment must be in writing in order be valid.
Remuneration (sections 32 and 33)
- An employer must pay to an employee any remuneration that is paid in money in SA currency, by cash, cheque or direct deposit into an account designated by the employee either daily, weekly, fortnightly or monthly.
- Remuneration must be paid not later than 7 days after the completion of the period for which the remuneration is paid or the termination of the contract of employment.
- An employer is required to provide the employee with information in writing each time the employee is paid. This information includes –
- The full name and address of the employer
- The employee’s name and occupation
- The period for which payment is being made
- The employee’s remuneration in money
- Amount and purpose of any deduction
- The actual amount paid to the employee
Deductions (sections 34 and 34A)
An employer may not deduct money from an employee’s remuneration unless:
- The employee consents in writing to the specific deduction; or
- A law, a collective agreement, Court order or arbitration award permits the deduction.
Deductions may only be made to reimburse an employer for damage or loss if-
- The loss or damage occurred in the course of employment and was due to the fault of the employee;
- The employer has followed a fair procedure and given the employee an opportunity to say why the deduction should not be made;
- The total amount of the debt does not exceed the total amount of the loss or damage; and
- The total deductions per pay period do not exceed one quarter (25%) of the employee’s remuneration in money for that period.
If an employer deducts any money from an employee’s remuneration for payment to a benefit fund (e.g. pension fund, medical aid scheme, etc.) the employer is obliged to pay such monies over to the fund concerned within 7 days of the date the money was deducted, or a shorter period in the event that the rules of such a fund may require this.
Calculation of remuneration and wages (section 35)
- The BCEA provides for the calculation of wages and remuneration. A wage is a narrower term than remuneration. The employee’s wage is calculated according to the ordinary working hours of the employee, which is deemed (unless otherwise proved) to be 45 hours per week.
- An employee’s monthly remuneration or wage is four and one-third (4.33) times the weekly remuneration or wage respectively.
- The Minister has determined that the following payments are included in remuneration for the purpose of calculating leave pay and notice pay: housing allowance; car allowance (but not the provision of a car if it is to enable the employee to work); any other cash payment (excluding discretionary bonuses and tips); company contributions to medical aid, pension, provident funds, funeral or death benefit schemes or similar schemes. The following are excluded: transport allowances (to enable an employee to work); relocation allowances, tips and gifts (from customers or employers); share incentive schemes; discretionary payments (e.g. bonuses); entertainment, education or schooling allowances.
- If an employee’s remuneration fluctuates it must be averaged over a period of 13 weeks.
Note that when a CCMA commissioner calculates earnings for the purposes of making a compensation award as a result of an unfair dismissal, the commissioner has no discretion.
If there is a sectoral or ministerial determination in place, the employee’s wages and remuneration must be calculated in terms of the applicable sectoral or ministerial determination, unless the employee earns a higher wage.
Notice of termination of employment (section 37)
A party must give at least the following notice of termination of employment:
- One week if an employee has been employed for six months or less.
- Two weeks if an employee has been employed for between six and twelve months.
- Four weeks if the employee has been employed for more than one year; this can be reduced to two weeks by collective agreement.
- Four weeks for a farm worker or domestic worker who has been employed for more than six months.
The BCEA recognises an employer’s common law right to terminate the contract of employment without notice. That would be permissible where the employee has committed a material breach of the contract of employment such as serious misconduct. Dismissal without notice is known as summary dismissal.
The period of notice is not interrupted if the employee takes sick leave during the notice period.
Payment instead of notice (section 38)
- An employer may pay an employee what s/he would have earned during the notice period instead of having the employee work out the notice period. Whether that happens is up to the employer; the employee has no choice in the matter, unless by agreement including a contract, sectoral determination or collective agreement.
- If the employee gives notice the employer may waive its right to have the employee work out his notice and instead pay the employee what s/he would have earned if s/he had stayed to work out the notice period.
Severance pay (section 41)
- An employer must pay an employee who is dismissed for operational requirements severance pay equal to at least one week’s remuneration for each completed year of continuous service with that employer.
- In terms of s84 an employee’s length of service with an employer includes any previous period of employment provided the break in service was for less than one year.
- An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer is not entitled to severance pay.
- An employee who accepts any offer of alternative employment from the employer also forfeits any claim to severance pay.
- An employer is required to pay severance pay to an employee if employment is terminated because the employer goes insolvent (section 38 Insolvency Act 24 of 1936).
- An employer who employs an employee in terms of a fixed-term contract for a specific project that has a limited or defined duration, for a period exceeding 24 months must, subject to the terms of a collective agreement, pay the employee on expiry of the contract, one week’s remuneration for each completed year of the contract (section 198B (10) (a) of the Labour Relations Act 66 of 1995).
Section 74(3) of the BCEA permits an employee who refers a severance pay dispute to the CCMA or a bargaining council to initiate a claim for any other amount owed as a result of a contravention of the BCEA, jointly with the severance pay claim. This would require the employee to refer to such claim in the LRA 7.11 referral form. Applicants in severance pay disputes should clearly stipulate in their referral forms whether they are also claiming amounts that are outstanding in terms of the BCEA.
Prohibition of employment of children and child labour (sections 43-48)
- No person may require or permit a child who is under 15 years of age to work. This is a criminal offence.
- The Minister may in terms of section 50 vary this provision by allowing children under 15 years to be employed in advertising, sports, artistic or cultural activities.
- Any employment that is permitted must be appropriate to the age of the child and may not place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development.
- All forced labour is prohibited.
Monitoring and enforcement of BCEA (sections 63 to 73)
- The BCEA provides for the appointment of Labour Inspectors to investigate alleged breaches of the BCEA, to monitor implementation and enforce compliance by issuing compliance orders or obtaining written undertakings to comply from employers.
- The Director-General may apply to the Labour Court to have a compliance order made an order of Court.
Legal Proceedings (sections 74 to 77)
A claim for statutory monies due to an employee, such as outstanding salary, notice pay, leave pay, etc. can be consolidated with a referral of a dispute alleging an unfair dismissal. Before the 2014 amendments the CCMA / council could only consider a claim for statutory monies together with an unfair dismissal dispute if a claim for such monies was made in the LRA 7.11 referral form, and only to the extent that the amount of unpaid monies claimed had not been owing to the employee for longer than one year prior to dismissal. The arbitrator also had to ensure that no compliance order had been made or other legal proceedings instituted to recover the money (Douglas & others v Gauteng MEC for Health  5 BLLR 401 (LC)). These restrictions have now been removed, and the only remaining restriction is that the amounts claimed must not have prescribed. Once a claim has been determined by the CCMA or a council, no compliance order may be issued in respect of the amount claimed (and if a compliance order has already been issued, it may not be enforced).
Protection of employees against discrimination (sections 78 to 81)
- Employees’ rights to complain about non-compliance with the Act are protected.
- Employees are entitled to discuss their terms and conditions of employment with others.
- Employees have the right to inspect any record relating to their employment (trade unions also enjoy this right on behalf of their members).
- For the purposes of the protection of employee rights, a job applicant and a former employee are deemed to be employees.
- Employees may not be discriminated against for exercising any of their rights in terms of the BCEA.
Disputes regarding the breach of employee rights may be referred to conciliation and, if unresolved, to the Labour Court.