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Basic Conditions of Employment Act

REPUBLIC OF SOUTH AFRICA
BASIC CONDITIONS OF
EMPLOYMENT ACT
No , 1997

ACT
To give effect to the right to fair labour practices referred to in section 23(1) of the
Constitution by establishing and making provision for the regulation of basic
conditions of employment; and thereby to comply with the obligations of the
Republic as a member state of the International Labour Organisation; and to
provide for matters connected therewith.
B
E IT ENACTED by the Parliament of the Republic of South Africa as
follows:Ð
TABLE OF CONTENTS
CHAPTER ONE
De®nitions, purpose and application of this Act
1. De®nitions
2. Purpose of this Act
3. Application of this Act
4. Inclusion of provisions in contracts of employment
5. This Act not affected by agreements
CHAPTER TWO
Regulation of working time
6. Application of this Chapter
7. Regulation of working time
8. Interpretation of day
9. Ordinary hours of work
10. Overtime
11. Compressed working week
12. Averaging of hours of work
13. Determination of hours of work by Minister
14. Meal intervals
15. Daily and weekly rest period
16. Pay for work on Sundays
17. Night work
18. Public holidays
CHAPTER THREE
Leave
19. Application of this Chapter
20. Annual leave
21. Pay for annual leave
22. Sick leave5
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23. Proof of incapacity
24. Application to occupational accidents or diseases
25. Maternity leave
26. Protection of employees before and after birth of a child
27. Family responsibility leave
CHAPTER FOUR
Particulars of employment and remuneration
28. Application of this Chapter
29. Written particulars of employment
30. Informing employees of their rights
31. Keeping of records
32. Payment of remuneration
33. Information about remuneration
34. Deductions and other acts concerning remuneration
35. Calculation of remuneration and wages
CHAPTER FIVE
Termination of employment
36. Application of this Chapter
37. Notice of termination of employment
38. Payment instead of notice
39. Employees in accommodation provided by employers
40. Payments on termination
41. Severance pay
42. Certi®cate of service
CHAPTER SIX
Prohibition of employment of children and forced labour
43. Prohibition of employment of children
44. Employment of children of 15 years or older
45. Medical examinations
46. Prohibitions
47. Evidence of age
48. Prohibition of forced labour
CHAPTER SEVEN
Variation of basic conditions of employment
49. Variation by agreement
50. Variation by Minister
CHAPTER EIGHT
Sectoral determinations
51. Sectoral determination
52. Investigation
53. Conduct of investigation
54. Preparation of report
55. Making of sectoral determination
56. Period of operation of sectoral determination
57. Legal effect of sectoral determination
58. Employer to keep a copy of sectoral determination
CHAPTER NINE
Employment Conditions Commission
59. Establishment and functions of Employment Conditions Commission
60. Composition of Commission3
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61. Public hearings
62. Report by Commission
CHAPTER TEN
Monitoring, enforcement and legal proceedings
63. Appointment of labour inspectors
64. Functions of labour inspectors
65. Powers of entry
66. Powers to question and inspect
67. Co-operation with labour inspectors
68. Securing an undertaking
69. Compliance order
70. Limitations
71. Objections to compliance order
72. Appeals from order of Director-General
73. Order may be made order of Labour Court
74. Consolidation of proceedings
75. Payment of interest
76. Proof of compliance
77. Jurisdiction of Labour Court
78. Rights of employees
79. Protection of rights
80. Procedure for disputes
81. Burden of proof
CHAPTER ELEVEN
General
82. Temporary employment services
83. Deeming of persons as employees
84. Duration of employment
85. Delegation
86. Regulations
87. Codes of Good Practice
88. Minister’s power to add and change footnotes
89. Representation of employees or employers
90. Con®dentiality
91. Answers not to be used in criminal prosecutions
92. Obstruction, undue in¯uence and fraud
93. Penalties
94. This Act binds the State
95. Transitional arrangements and amendment and repeal of laws
96. Short title and commencement
SCHEDULES
Schedule One: Procedures for progressive reduction of maximum working hours
Schedule Two: Maximum permissible fees that may be imposed for failure to comply
with this Act
Schedule Three: Transitional provisions
Schedule Four: Laws repealed by section 95(5)
CHAPTER ONE
De®nitions, purpose and application of this Act
De®nitions
1.In this Act, unless the context indicates otherwiseÐ
“agreement” includes a collective agreement;
“area” includes any number of areas, whether or not contiguous;4
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“bargaining council” means a bargaining council registered in terms of the Labour
Relations Act, 1995, and, in relation to the public service, includes the bargaining
councils referred to in section 35 of that Act;
“basic condition of employment” means a provision of this Act or sectoral
determination that stipulates a minimum term or condition of employment;
“CCMA” means the Commission for Conciliation, Mediation and Arbitration
established in terms of section 112 of the Labour Relations Act, 1995;
“child” means a person who is under 18 years of age;
“code of good practice” means a code of good practice issued by the Minister in
terms of section 87 of this Act;
“collective agreement” means a written agreement concerning terms and
conditions of employment or any other matter of mutual interest concluded by one
or more registered trade unions, on the one hand and, on the other handÐ
(a)one or more employers;
(b)one or more registered employers’ organisations; or
(c)one or more employers and one or more registered employers’ organisation;
“Commission” means the Employment Conditions Commission established by
section 59(1);
“compliance order” means a compliance order issued by a labour inspector in
terms of section 69(1);
“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act
No. 108 of 1996);
“council” includes a bargaining council and a statutory council;
“Department” means the Department of Labour;
“Director-General” means the Director-General of Labour;
“dispute” includes an alleged dispute;
“domestic worker” means an employee who performs domestic work in the home
of his or her employer and includesÐ
(a)a gardener;
(b)a person employed by a household as driver of a motor vehicle; and
(c)a person who takes care of children, the aged, the sick, the frail or the disabled,
but does not include a farm worker;
“employee” meansÐ
(a)any person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled to receive, any
remuneration; and
(b)any other person who in any manner assists in carrying on or conducting the
business of an employer,
and “employed” and “employment” have a corresponding meaning;
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“employers’ organisation” means any number of employers associated together for
the purpose, whether by itself or with other purposes, of regulating relations
between employers and employees or trade unions;
“employment law” includes this Act, any other Act the administration of which has
been assigned to the Minister, and any of the following Acts:
(a)The Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
(b)the Manpower Training Act, 1981 (Act No. 56 of 1981);
(c)the Guidance and Placement Act, 1981 (Act No. 62 of 1981);
(d)the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
(e)the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No.
130 of 1993);
“farm worker” means an employee who is employed mainly in or in connection
with farming activities, and includes an employee who wholly or mainly performs
domestic work in a home on a farm;
“Labour Appeal Court” means the Labour Appeal Court established by section 167
of the Labour Relations Act, 1995;
“Labour Court” means the Labour Court established by section 151 of the Labour
Relations Act, 1995;
1. “Employee” is given a speci®c meaning in section 82(1).
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“labour inspector” means a labour inspector appointed under section 63, and
includes any person designated by the Minister under that section to perform any
function of a labour inspector;
“Labour Relations Act, 1995” means the Labour Relations Act, 1995 (Act No. 66
of 1995);
“medical practitioner” means a person entitled to practise as a medical practitioner
in terms of section 17 of the Medical, Dental and Supplementary Health Service
Professions Act, 1974 (Act No. 56 of 1974);
“midwife” means a person registered or enrolled to practise as a midwife in terms
of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978);
“Minister” means the Minister of Labour;
“month” means a calendar month;
“NEDLAC” means the National Economic, Development and Labour Council
established by section 2 of the National Economic, Development and Labour
Council Act, 1994 (Act No. 35 of 1994);
“ordinary hours of work” means the hours of work permitted in terms of section 9
or in terms of any agreement in terms of sections 11 or 12;
“overtime” means the time that an employee works during a day or a week in
excess of ordinary hours of work;
“prescribe” means to prescribe by regulation and “prescribed” has a correspond-
ing meaning;
“public holiday” means any day that is a public holiday in terms of the Public
Holidays Act, 1994 (Act No. 36 of 1994);
“public service” means the public service referred to in section 1(1) of the Public
Service Act, 1994 (Proclamation No. 103 of 1994), and includes any organisational
component contemplated in section 7(4) of that Act and speci®ed in the ®rst
column of Schedule 2 to that Act, but excludingÐ
(a)the members of the National Defence Force;
(b)the National Intelligence Agency; and
(c)the South African Secret Service;
“registered employers’ organisation” means an employers’ organisation registered
under section 96 of the Labour Relations Act, 1995;
“registered trade union” means a trade union registered under section 96 of the
Labour Relations Act, 1995;
“remuneration” means any payment in money or in kind, or both in money and in
kind, made or owing to any person in return for that person working for any other
person, including the State, and “remunerate” has a corresponding meaning;
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“sector” means an industry or a service or a part of an industry or a service;
“sectoral determination” means a sectoral determination made under Chapter
Eight;
“senior managerial employee” means an employee who has the authority to hire,
discipline and dismiss employees and to represent the employer internally and
externally;
“serve” means to send by registered post, telegram, telex, telefax or deliver by
hand;
“statutory council” means a council established under Part E of Chapter III of the
Labour Relations Act, 1995;
“temporary employment service” means any person who, for reward, procures for,
or provides to, a client, other personsÐ
(a)who render services to, or perform work for, the client; and
(b)who are remunerated by the temporary employment service;
“this Act” includes the Schedules and any regulation made under this Act, but does
not include the headings or footnotes;
“trade union” means an association of employees whose principal purpose is to
regulate relations between employees and employers, including any employers’
organisations;
“trade union official” includes an official of a federation of trade unions;
“trade union representative” means a trade union representative who is entitled to
exercise the rights contemplated in section 14 of the Labour Relations Act, 1995;
2. “Remuneration” is given a speci®c meaning in section 35(5).
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“wage” means the amount of money paid or payable to an employee in respect of
ordinary hours of work or, if they are shorter, the hours an employee ordinarily
works in a day or week;
“week” in relation to an employee, means the period of seven days within which
the working week of that employee ordinarily falls;
“workplace” means any place where employees work;
“workplace forum” means a workplace forum established under Chapter V of the
Labour Relations Act, 1995.
Purpose of this Act
2.The purpose of this Act is to advance economic development and social justice by
ful®lling the primary objects of this Act which areÐ
(a)to give effect to and regulate the right to fair labour practices conferred by
section 23(1) of the ConstitutionÐ
(i) by establishing and enforcing basic conditions of employment; and
(ii) by regulating the variation of basic conditions of employment;
(b)to give effect to obligations incurred by the Republic as a member state of the
International Labour Organisation.
Application of this Act
3.(1) This Act applies to all employees and employers exceptÐ
(a)members of the National Defence Force, the National Intelligence Agency
and the South African Secret Service; and
(b)unpaid volunteers working for an organisation serving a charitable purpose.
(2) This Act applies to persons undergoing vocational training except to the extent
that any term or condition of their employment is regulated by the provisions of any
other law.
(3) This Act, except section 41, does not apply to persons employed on vessels at sea
in respect of which the Merchant Shipping Act, 1951 (Act No. 57 of 1951), applies
except to the extent provided for in a sectoral determination.
Inclusion of provisions in contracts of employment
4.A basic condition of employment constitutes a term of any contract of employment
except to the extent thatÐ
(a)any other law provides a term that is more favourable to the employee;
(b)the basic condition of employment has been replaced, varied, or excluded in
accordance with the provisions of this Act; or
(c)a term of the contract of employment is more favourable to the employee than
the basic condition of employment.
This Act not affected by agreements
5.This Act or anything done under it takes precedence over any agreement, whether
entered into before or after the commencement of this Act.
CHAPTER TWO
Regulation of working time
Application of this Chapter
6.(1) This Chapter, except section 7, does not apply toÐ
(a)senior managerial employees;
(b)employees engaged as sales staff who travel to the premises of customers and
who regulate their own hours of work;
(c)employees who work less than 24 hours a month for an employer.7
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(2) Sections 9, 10(1), 14(1), 15(1), 17(2) and 18(1) do not apply to work which is
required to be done without delay owing to circumstances for which the employer could
not reasonably have been expected to make provision and which cannot be performed by
employees during their ordinary hours of work.
(3) The Minister must, on the advice of the Commission, make a determination that
excludes the application of this Chapter or any provision of it to any category of
employees earning in excess of an amount stated in that determination.
(4) Before the Minister issues a notice in terms of subsection (3), the Minister mustÐ
(a)publish in theGazettea draft of the proposed notice; and
(b)invite interested persons to submit written representations on the proposed
notice within a reasonable period.
Regulation of working time
7.Every employer must regulate the working time of each employeeÐ
(a)in accordance with the provisions of any Act governing occupational health
and safety;
(b)with due regard to the health and safety of employees;
(c)with due regard to the Code of Good Practice on the Regulation of Working
Time
3issued under section 87(1)(a); and
(d)with due regard to the family responsibilities of employees.
Interpretation of day
8.For the purposes of sections 9, 10 and 11, “day” means a period of 24 hours
measured from the time when the employee normally commences work.
Ordinary hours of work
9.(1) Subject to this Chapter, an employer may not require or permit an employee to
work more thanÐ
(a)45 hours in any week; and
(b)nine hours in any day if the employee works for ®ve days or fewer in a week;
or
(c)eight hours in any day if the employee works on more than ®ve days in a week.
(2) An employee’s ordinary hours of work in terms of subsection (1) may by
agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a
week to enable an employee whose duties include serving members of the public to
continue performing those duties after the completion of ordinary hours of work.
(3) Schedule 1 establishes procedures for the progressive reduction of the maximum
ordinary hours of work to a maximum of 40 ordinary hours of work per week and eight
ordinary hours of work per day.
Overtime
10.(1) Subject to this Chapter, an employer may not require or permit an employeeÐ
(a)to work overtime except in accordance with an agreement;
(b)to work more thanÐ
(i) three hours’ overtime a day; or
(ii) ten hours’ overtime a week.
(2) An employer must pay an employee at least one and one-half times the employee’s
wage for overtime worked.
(3) Despite subsection (2), an agreement may provide for an employer toÐ
3. The Code of Good Practice issued by the Minister of Labour under section 87(1)(a)will contain
provisions concerning the arrangement of work and, in particular, its impact upon the health, safety and
welfare of employees. Issues that would be included are shift work, night work, rest periods during
working time, family responsibilities and work by children.
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(a)pay an employee not less than the employee’s ordinary wage for overtime
worked and grant the employee at least 30 minutes’ time off on full pay for
every hour of overtime worked; or
(b)grant an employee at least 90 minutes’ paid time off for each hour of overtime
worked.
(4)(a)An employer must grant paid time off in terms of subsection (3) within one
month of the employee becoming entitled to it.
(b)An agreement in writing may increase the period contemplated by paragraph(a)
to 12 months.
(5) An agreement concluded in terms of subsection (1) with an employee when the
employee commences employment, or during the ®rst three months of employment,
lapses after one year.
Compressed working week
11 .(1) An agreement in writing may require or permit an employee to work up to
twelve hours in a day, inclusive of the meal intervals required in terms of section 14,
without receiving overtime pay.
(2) An agreement in terms of subsection (1) may not require or permit an employee to
workÐ
(a)more than 45 ordinary hours of work in any week;
(b)more than ten hours’ overtime in any week; or
(c)on more than ®ve days in any week.
Averaging of hours of work
12.(1) Despite sections 9(1) and (2) and 10(1)(b), the ordinary hours of work and
overtime of an employee may be averaged over a period of up to four months in terms
of a collective agreement.
(2) An employer may not require or permit an employee who is bound by a collective
agreement in terms of subsection (1) to work more thanÐ
(a)an average of 45 ordinary hours of work in a week over the agreed period;
(b)an average of ®ve hours’ overtime in a week over the agreed period.
(3) A collective agreement in terms of subsection (1) lapses after 12 months.
(4) Subsection (3) only applies to the ®rst two collective agreements concluded in
terms of subsection (1).
Determination of hours of work by Minister
13.(1) Despite this Chapter, the Minister, on grounds of health and safety, may
prescribe by regulation the maximum permitted hours of work, including overtime, that
any category of employee may workÐ
(a)daily, weekly or during any other period speci®ed in the regulation; and
(b)during a continuous period without a break.
(2) A regulation in terms of subsection (1) may not prescribe maximum hours in
excess of those permitted in sections 9 and 10.
(3) A regulation in terms of subsection (1) may be made onlyÐ
(a)on the advice of the chief inspector appointed in terms of section 27 of the
Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), or the chief
inspector appointed in terms of section 48 of the Mine Health and Safety Act,
1996 (Act No. 29 of 1996); and
(b)after consulting the Commission.
Meal intervals
14.(1) An employer must give an employee who works continuously for more than
®ve hours a meal interval of at least one continuous hour.
(2) During a meal interval the employee may be required or permitted to perform only
duties that cannot be left unattended and cannot be performed by another employee.9
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(3) An employee must be remuneratedÐ
(a)for a meal interval in which the employee is required to work or is required to
be available for work; and
(b)for any portion of a meal interval that is in excess of 75 minutes, unless the
employee lives on the premises at which the workplace is situated.
(4) For the purposes of subsection (1), work is continuous unless it is interrupted by
an interval of at least 60 minutes.
(5) An agreement in writing mayÐ
(a)reduce the meal interval to not less than 30 minutes;
(b)dispense with a meal interval for an employee who works fewer than six hours
on a day.
Daily and weekly rest period
15.(1) An employer must allow an employeeÐ
(a)a daily rest period of at least twelve consecutive hours between ending and
recommencing work; and
(b)a weekly rest period of at least 36 consecutive hours which, unless otherwise
agreed, must include Sunday.
(2) A daily rest period in terms of subsection (1)(a)may, by written agreement, be
reduced to 10 hours for an employeeÐ
(a)who lives on the premises at which the workplace is situated; and
(b)whose meal interval lasts for at least three hours.
(3) Despite subsection (1)(b), an agreement in writing may provide forÐ
(a)a rest period of at least 60 consecutive hours every two weeks; or
(b)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.
Pay for work on Sundays
16.(1) An employer must pay an employee who works on a Sunday at double the
employee’s wage for each hour worked, unless the employee ordinarily works on a
Sunday, in which case the employer must pay the employee at one and one-half times the
employee’s wage for each hour worked.
(2) If an employee works less than the employee’s ordinary shift on a Sunday and the
payment that the employee is entitled to in terms of subsection (1) is less than the
employee’s ordinary daily wage, the employer must pay the employee the employee’s
ordinary daily wage.
(3) Despite subsections (1) and (2), an agreement may permit an employer to grant an
employee who works on a Sunday paid time off equivalent to the difference in value
between the pay received by the employee for working on the Sunday and the pay that
the employee is entitled to in terms of subsections (1) and (2).
(4) Any time worked on a Sunday by an employee who does not ordinarily work on
a Sunday is not taken into account in calculating an employee’s ordinary hours of work
in terms of section 9(1) and (2), but is taken into account in calculating the overtime
worked by the employee in terms of section 10(1)(b).
(5) If a shift worked by an employee falls on a Sunday and another day, the whole shift
is deemed to have been worked on the Sunday, unless the greater portion of the shift was
worked on the other day, in which case the whole shift is deemed to have been worked
on the other day.
(6)(a)An employer must grant paid time off in terms of subsection (3) within one
month of the employee becoming entitled to it.
(b)An agreement in writing may increase the period contemplated by paragraph(a)
to 12 months.
Night work
17.(1) In this section, “night work” means work performed after 18:00 and before
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(2) An employer may only require or permit an employee to perform night work, if so
agreed, and ifÐ
(a)the employee is compensated by the payment of an allowance, which may be
a shift allowance, or by a reduction of working hours; and
(b)transportation is available between the employee’s place of residence and the
workplace at the commencement and conclusion of the employee’s shift.
(3) An employer who requires an employee to perform work on a regular basis after
23:00 and before 06:00 the next day mustÐ
(a)inform the employee inwriting, or orally if theemployee is not able to
understand a written communication, in a language that the employee
understandsÐ
(i) of any health and safety hazards associated with the work that the
employee is required to perform; and
(ii) of the employee’s right to undergo a medical examination in terms of
paragraph(b);
(b)at the request of the employee, enable the employee to undergo a medical
examination, for the account of the employer, concerning those hazardsÐ
(i) before the employee starts, or within a reasonable period of the employee
starting, such work; and
(ii) at appropriate intervals while the employee continues to perform such
work; and
(c)transfer the employee to suitable day work within a reasonable time ifÐ
(i) the employee suffers from a health condition associated with the
performance of night work; and
(ii) it is practicable for the employer to do so.
(4) For the purposes of subsection (3), an employee works on a regular basis if the
employee works for a period of longer than one hour after 23:00 and before 06:00 at
least ®ve times per month or 50 times per year.
(5) The Minister may, after consulting the Commission, make regulations relating to
the conduct of medical examinations for employees who perform night work.
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Public holidays 5
18.(1) An employer may not require an employee to work on a public holiday except
in accordance with an agreement.
(2) If a public holiday falls on a day on which an employee would ordinarily work, an
employer must payÐ
(a)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;
(b)an employee who does work on the public holidayÐ
(i) at least double the amount referred to in paragraph(a);or
(ii) if it is greater, the amount referred to in paragraph(a)plus the amount
earned by the employee for the time worked on that day.
(3) If an employee works on a public holiday on which the employee would not
ordinarily work, the employer must pay that employee an amount equal toÐ
(a)the employee’s ordinary daily wage; plus
(b)the amount earned by the employee for the work performed that day, whether
calculated by reference to time worked or any other method.
(4) An employer must pay an employee for a public holiday on the employee’s usual
pay day.
(5) 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.
4. Section 90 protects the con®dentiality of any medical examination conducted in terms of this Act.
5. In terms of section 2(2) of the Public Holidays Act, 1994 (Act No. 36 of 1994), a public holiday is
exchangeable for any other day which is ®xed by agreement or agreed to between the employer and the
employee.
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CHAPTER THREE
Leave
Application of this Chapter
19.(1) This Chapter does not apply to an employee who works less than 24 hours a
month for an employer.
(2) Unless an agreement provides otherwise, this Chapter does not apply to leave
granted to an employee in excess of the employee’s entitlement under this Chapter.
Annual leave
20.(1) In this Chapter, “annual leave cycle” means the period of 12 months’
employment with the same employer immediately followingÐ
(a)an employee’s commencement of employment; or
(b)the completion of that employee’s prior leave cycle.
(2) An employer must grant an employee at leastÐ
(a)21 consecutive days’ annual leave on full remuneration in respect of each
annual leave cycle; or
(b)by agreement, one day of annual leave on full remuneration for every 17 days
on which the employee worked or was entitled to be paid;
(c)by agreement, one hour of annual leave on full remuneration for every 17
hours on which the employee worked or was entitled to be paid.
(3) An employee is entitled to take leave accumulated in an annual leave cycle in
terms of subsection (2) on consecutive days.
(4) An employer must grant annual leave not later than six months after the end of the
annual leave cycle.
(5) An employer may not require or permit an employee to take annual leave duringÐ
(a)any other period of leave to which the employee is entitled in terms of this
Chapter; or
(b)any period of notice of termination of employment.
(6) Despite subsection (5), an employer must permit an employee, at the employee’s
written request, to take leave during a period of unpaid leave.
(7) An employer may reduce an employee’s entitlement to annual leave by the number
of days of occasional leave on full remuneration granted to the employee at the
employee’s request in that leave cycle.
(8) 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.
(9) An employer may not require or permit an employee to work for the employer
during any period of annual leave.
(10) Annual leave must be takenÐ
(a)in accordance with an agreement between the employer and employee; or
(b)if there is no agreement in terms of paragraph(a), at a time determined by the
employer in accordance with this section.
(11) An employer may not pay an employee instead of granting paid leave in terms of
this section exceptÐ
(a)on termination of employment; and
(b)in accordance with section 40(b)and(c).
Pay for annual leave
21.(1) An employer must pay an employee leave pay at least equivalent to the
remuneration that the employee would have received for working for a period equal to
the period of annual leave, calculatedÐ
(a)at the employee’s rate of remuneration immediately before the beginning of
the period of annual leave; and
(b)in accordance with section 35.12
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(2) An employer must pay an employee leave payÐ
(a)before the beginning of the period of leave; or
(b)by agreement, on the employee’s usual pay day.
Sick leave
22.(1) In this Chapter, “sick leave cycle” means the period of 36 months’
employment with the same employer immediately followingÐ
(a)an employee’s commencement of employment; or
(b)the completion of that employee’s prior sick leave cycle.
(2) During every sick leave cycle, an employee is entitled to an amount of paid sick
leave equal to the number of days the employee would normally work during a period
of six weeks.
(3) Despite subsection (2), during the ®rst six months of employment, an employee is
entitled to one day’s paid sick leave for every 26 days worked.
(4) During an employee’s ®rst sick leave cycle, an employer may reduce the
employee’s entitlement to sick leave in terms of subsection (2) by the number of days’
sick leave taken in terms of subsection (3).
(5) Subject to section 23, an employer must pay an employee for a day’s sick leaveÐ
(a)the wage the employee would ordinarily have received for work on that day;
and
(b)on the employee’s usual pay day.
(6) An agreement may reduce the pay to which an employee is entitled in respect of
any day’s absence in terms of this section ifÐ
(a)the number of days of paid sick leave is increased at least commensurately
with any reduction in the daily amount of sick pay; and
(b)the employee’s entitlement to payÐ
(i) for any day’s sick leave is at least 75 per cent of the wage payable to the
employee for the ordinary hours the employee would have worked on
that day; and
(ii) for sick leave over the sick leave cycle is at least equivalent to the
employee’s entitlement in terms of subsection (2).
Proof of incapacity
23.(1) An employer is not required to pay an employee in terms of section 22 if the
employee has been absent from work for more than two consecutive days or on more
than two occasions during an eight-week period and, on request by the employer, does
not produce a medical certi®cate stating that the employee was unable to work for the
duration of the employee’s absence on account of sickness or injury.
(2) The medical certi®cate must be issued and signed by a medical practitioner or any
other person who is certi®ed to diagnose and treat patients and who is registered with a
professional council established by an Act of Parliament.
(3) If it is not reasonably practicable for an employee who lives on the employer’s
premises to obtain a medical certi®cate, the employer may not withhold payment in
terms of subsection (1) unless the employer provides reasonable assistance to the
employee to obtain the certi®cate.
Application to occupational accidents or diseases
24.Sections 22 and 23 do not apply to an inability to work caused by an accident or
occupational disease as de®ned in the Compensation for Occupational Injuries and
Diseases Act, 1993 (Act No. 130 of 1993), or the Occupational Diseases in Mines and
Works Act, 1973 (Act No. 78 of 1973), except in respect of any period during which no
compensation is payable in terms of those Acts.13
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Maternity leave 6
25.(1) An employee is entitled to at least four consecutive months’ maternity leave.
(2) An employee may commence maternity leaveÐ
(a)at any time from four weeks before the expected date of birth, unless
otherwise agreed; or
(b)on a date from which a medical practitioner or a midwife certi®es that it is
necessary for the employee’s health or that of her unborn child.
(3) No employee may work for six weeks after the birth of her child, unless a medical
practitioner or midwife certi®es that she is ®t to do so.
(4) An employee who has a miscarriage during the third trimester of pregnancy or
bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or
stillbirth, whether or not the employee had commenced maternity leave at the time of the
miscarriage or stillbirth.
(5) An employee must notify an employer in writing, unless the employee is unable
to do so, of the date on which the employee intends toÐ
(a)commence maternity leave; and
(b)return to work after maternity leave.
(6) Noti®cation in terms of subsection (5) must be givenÐ
(a)at least four weeks before the employee intends to commence maternity leave;
or
(b)if it is not reasonably practicable to do so, as soon as is reasonably practicable.
(7) The payment of maternity bene®ts will be determined by the Minister subject to
the provisions of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966).
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Protection of employees before and after birth of a child
26.(1) No employer may require or permit a pregnant employee or an employee who
is nursing her child to perform work that is hazardous to her health or the health of her
child.
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(2) During an employee’s pregnancy, and for a period of six months after the birth of
her child, her employer must offer her suitable, alternative employment on terms and
conditions that are no less favourable than her ordinary terms and conditions of
employment, ifÐ
(a)the employee is required to perform night work, as de®ned in section 17(1) or
her work poses a danger to her health or safety or that of her child; and
(b)it is practicable for the employer to do so.
Family responsibility leave
27.(1) This section applies to an employeeÐ
(a)who has been in employment with an employer for longer than four months;
and
(b)who works for at least four days a week for that employer.
(2) 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 takeÐ
(a)when the employee’s child is born;
(b)when the employee’s child is sick; or
6. In terms of section 187(1)(e)of the Labour Relations Act, 1995, the dismissal of an employee on
account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically
unfair. The de®nition of dismissal in section 186 of the Labour Relations Act, 1995, includes the
refusal to allow an employee to resume work after she has taken maternity leave in terms of any law,
collective agreement or her contract.
7. Sections 34 and 37 of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966), provide for the
payment of maternity leave. Legislative amendments will be proposed to Cabinet to improve these
bene®ts and to provide that the payment to an employee of maternity bene®ts does not adversely affect
her right to unemployment bene®ts.
8. The Minister must issue a Code of Good Practice on the Protection of Employees during Pregnancy
and after the Birth of a Child in terms of section 87(1)(b).
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(c)in the event of the death ofÐ
(i) the employee’s spouse or life partner; or
(ii) the employee’s parent, adoptive parent, grandparent, child, adopted
child, grandchild or sibling.
(3) Subject to subsection (5), an employer must pay an employee for a day’s family
responsibility leaveÐ
(a)the wage the employee would ordinarily have received for work on that day;
and
(b)on the employee’s usual pay day.
(4) An employee may take family responsibility leave in respect of the whole or a part
of a day.
(5) Before paying an employee for leave in terms of this section, an employer may
require reasonable proof of an event contemplated in subsection (1) for which the leave
was required.
(6) An employee’s unused entitlement to leave in terms of this section lapses at the
end of the annual leave cycle in which it accrues.
(7) A collective agreement may vary the number of days and the circumstances under
which leave is to be granted in terms of this section.
CHAPTER FOUR
Particulars of employment and remuneration
Application of this Chapter
28.(1) This Chapter does not apply to an employee who works less than 24 hours a
month for an employer.
(2) Sections 29(1)(n),(o)and(p), 30, 31 and 33 do not apply toÐ
(a)an employer who employs fewer than ®ve employees; and
(b)the employment of a domestic worker.
Written particulars of employment
29.(1) An employer must supply an employee, when the employee commences
employment, with the following particulars in writingÐ
(a)the full name and address of the employer;
(b)the name and occupation of the employee, or a brief description of the work
for which the employee is employed;
(c)the place of work, and, where the employee is required or permitted to work
at various places, an indication of this;
(d)the date on which the employment began;
(e)the employee’s ordinary hours of work and days of work;
(f)the employee’s wage or the rate and method of calculating wages;
(g)the rate of pay for overtime work;
(h)any other cash payments that the employee is entitled to;
(i)any payment in kind that the employee is entitled to and the value of the
payment in kind;
(j)how frequently remuneration will be paid;
(k)any deductions to be made from the employee’s remuneration;
(l)the leave to which the employee is entitled;
(m)the period of notice required to terminate employment, or if employment is for
a speci®ed period, the date when employment is to terminate;
(n)a description of any council or sectoral determination which covers the
employer’s business;
(o)any period of employment with a previous employer that counts towards the
employee’s period of employment;
(p)a list of any other documents that form part of the contract of employment,
indicating a place that is reasonably accessible to the employee where a copy
of each may be obtained.
(2) When any matter listed in subsection (1) changesÐ
(a)the written particulars must be revised to re¯ect the change; and15
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(b)the employee must be supplied with a copy of the document re¯ecting the
change.
(3) If an employee is not able to understand the written particulars, the employer must
ensure that they are explained to the employee in a language and in a manner that the
employee understands.
(4) Written particulars in terms of this section must be kept by the employer for a
period of three years after the termination of employment.
Informing employees of their rights
30.An employer must display at the workplace where it can be read by employees a
statement in the prescribed form of the employee’s rights under this Act in the official
languages which are spoken in the workplace.
Keeping of records
31.(1) Every employer must keep a record containing at least the following
information:
(a)The employee’s name and occupation;
(b)the time worked by each employee;
(c)the remuneration paid to each employee;
(d)the date of birth of any employee under 18 years of age; and
(e)any other prescribed information.
(2) A record in terms of subsection (1) must be kept by the employer for a period of
three years from the date of the last entry in the record.
(3) No person may make a false entry in a record maintained in terms of subsection
(1).
(4) An employer who keeps a record in terms of this section is not required to keep
any other record of time worked and remuneration paid as required by any other
employment law.
Payment of remuneration
32.(1) An employer must pay to an employee any remuneration that is paid in
moneyÐ
(a)in South African currency;
(b)daily, weekly, fortnightly or monthly; and
(c)in cash, by cheque or by direct deposit into an account designated by the
employee.
(2) Any remuneration paid in cash or by cheque must be given to each employeeÐ
(a)at the workplace or at a place agreed to by the employee;
(b)during the employee’s working hours or within 15 minutes of the commence-
ment or conclusion of those hours; and
(c)in a sealed envelope which becomes the property of the employee.
(3) An employer must pay remuneration not later than seven days afterÐ
(a)the completion of the period for which the remuneration is payable; or
(b)the termination of the contract of employment.
(4) Subsection (3)(b)does not apply to any pension or provident fund payment to an
employee that is made in terms of the rules of the fund.
Information about remuneration
33.(1) An employer must give an employee the following information in writing on
each day the employee is paid:
(a)The employer’s name and address;
(b)the employee’s name and occupation;
(c)the period for which the payment is made;
(d)the employee’s remuneration in money;
(e)the amount and purpose of any deduction made from the remuneration;
(f)the actual amount paid to the employee; and
(g)if relevant to the calculation of that employee’s remunerationÐ16
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(i) the employee’s rate of remuneration and overtime rate;
(ii) the number of ordinary and overtime hours worked by the employee
during the period for which the payment is made;
(iii) the number of hours worked by the employee on a Sunday or public
holiday during that period; and
(iv) if an agreement to average working time has been concluded in terms of
section 12, the total number of ordinary and overtime hours worked by
the employee in the period of averaging.
(2) The written information required in terms of subsection (1) must be given to each
employeeÐ
(a)at the workplace or at a place agreed to by the employee; and
(b)during the employee’s ordinary working hours or within 15 minutes of the
commencement or conclusion of those hours.
Deductions and other acts concerning remuneration
34.(1) An employer may not make any deduction from an employee’s remuneration
unlessÐ
(a)subject to subsection (2), the employee in writing agrees to the deduction in
respect of a debt speci®ed in the agreement; or
(b)the deduction is required or permitted in terms of a law, collective agreement,
court order or arbitration award.
(2) A deduction in terms of subsection (1)(a)may be made to reimburse an employer
for loss or damage only ifÐ
(a)the loss or damage occurred in the course of employment and was due to the
fault of the employee;
(b)the employer has followed a fair procedure and has given the employee a
reasonable opportunity to show why the deductions should not be made;
(c)the total amount of the debt does not exceed the actual amount of the loss or
damage; and
(d)the total deductions from the employee’s remuneration in terms of this
subsection do not exceed one-quarter of the employee’s remuneration in
money.
(3) A deduction in terms of subsection (1)(a)in respect of any goods purchased by the
employee must specify the nature and quantity of the goods.
(4) An employer who deducts an amount from an employee’s remuneration in terms
of subsection (1) for payment to another person must pay the amount to the person in
accordance with the time period and other requirements speci®ed in the agreement, law,
court order or arbitration award.
(5) An employer may not require or permit an employee toÐ
(a)repay any remuneration except for overpayments previously made by the
employer resulting from an error in calculating the employee’s remuneration;
or
(b)acknowledge receipt of an amount greater than the remuneration actually
received.
Calculation of remuneration and wages
35.(1) An employee’s wage is calculated by reference to the number of hours the
employee ordinarily works.
(2) For the purposes of calculating the wage of an employee by time, an employee is
deemed ordinarily to workÐ
(a)45 hours in a week, unless the employee ordinarily works a lesser number of
hours in a week;
(b)nine hours in a day, or seven and a half hours in the case of an employee who
works for more than ®ve days a week, or the number of hours that an
employee works in a day in terms of an agreement concluded in accordance
with section 11, unless the employee ordinarily works a lesser number of
hours in a day.
(3) An employee’s monthly remuneration or wage is four and one-third times the
employee’s weekly remuneration or wage, respectively.17
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(4) If an employee’s remuneration or wage is calculated, either wholly or in part, on
a basis other than time or if an employee’s remuneration or wage ¯uctuates signi®cantly
from period to period, any payment to that employee in terms of this Act must be
calculated by reference to the employee’s remuneration or wage duringÐ
(a)the preceding 13 weeks; or
(b)if the employee has been in employment for a shorter period, that period.
(5) For the purposes of calculating an employee’s annual leave pay in terms of section
21, notice pay in terms of section 38 or severance pay in terms of section 41, an
employee’s remunerationÐ
(a)includes the cash value of any payment in kind that forms part of the
employee’s remuneration unless the employee receives that payment in kind;
but
(b)excludesÐ
(i) gratuities;
(ii) allowances paid to an employee for the purposes of enabling an
employee to work; and
(iii) any discretionary payments not related to the employee’s hours of work
or work performance.
CHAPTER FIVE
Termination of employment
Application of this Chapter
36.This Chapter does not apply to an employee who works less than 24 hours in a
month for an employer.
Notice of termination of employment
37.(1) Subject to section 38, a contract of employment terminable at the instance of
a party to the contract may be terminated only on notice of not less thanÐ
(a)one week, if the employee has been employed for four weeks or less;
(b)two weeks, if the employee has been employed for more than four weeks but
not more than one year;
(c)four weeks, if the employeeÐ
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for more
than four weeks.
(2) A collective agreement may permit a notice period shorter than that required by
subsection (1).
(3) No agreement may require or permit an employee to give a period of notice longer
than that required of the employer.
(4)(a)Notice of termination of a contract of employment must be given in writing,
except when it is given by an illiterate employee.
(b)If an employee who receives notice of termination is not able to understand it, the
notice must be explained orally by, or on behalf of, the employer to the employee in an
official language the employee reasonably understands.
(5) Notice of termination of a contract of employment given by an employer mustÐ
(a)not be given during any period of leave to which the employee is entitled in
terms of Chapter Three; and
(b)not run concurrently with any period of leave to which the employee is
entitled in terms of Chapter Three, except sick leave.
(6) Nothing in this section affects the rightÐ
(a)of a dismissed employee to dispute the lawfulness or fairness of the dismissal
in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law;
and
(b)of an employer or an employee to terminate a contract of employment without
notice for any cause recognised by law.18
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Payment instead of notice
38.(1) Instead of giving an employee notice in terms of section 37, an employer may
pay the employee the remuneration the employee would have received, calculated in
accordance with section 35, if the employee had worked during the notice period.
(2) If an employee gives notice of termination of employment, and the employer
waives any part of the notice, the employer must pay the remuneration referred to in
subsection (1), unless the employer and employee agree otherwise.
Employees in accommodation provided by employers
39.(1) If the employer of an employee who resides in accommodation that is situated
on the premises of the employer or that is supplied by the employer terminates the
contract of employment of that employeeÐ
(a)before the date on which the employer was entitled to do so in terms of section
37; or
(b)in terms of section 38,
the employer is required to provide the employee with accommodation for a period of
one month, or if it is a longer period, until the contract of employment could lawfully
have been terminated.
(2) If an employee elects to remain in accommodation in terms of subsection (1) after
the employer has terminated the employee’s contract of employment in terms of section
38, the remuneration that the employer is required to pay in terms of section 38 is
reduced by that portion of the remuneration that represents the agreed value of the
accommodation for the period that the employee remains in the accommodation.
Payments on termination
40.On termination of employment, an employer must pay an employeeÐ
(a)for any paid time off that the employee is entitled to in terms of section 10(3)
or 16(3) that the employee has not taken;
(b)remuneration calculated in accordance with section 21(1) for any period of
annual leave due in terms of section 20(2) that the employee has not taken;
and
(c)if the employee has been in employment longer than four months, in respect
of the employee’s annual leave entitlement during an incomplete annual leave
cycle as de®ned in section 20(1)Ð
(i) one day’s remuneration in respect of every 17 days on which the
employee worked or was entitled to be paid; or
(ii) remuneration calculated on any basis that is at least as favourable to the
employee as that calculated in terms of subparagraph (i).
Severance pay
41.(1) For the purposes of this section, “operational requirements” means
requirements based on the economic, technological, structural or similar needs of an
employer.
(2) An employer must pay an employee who is dismissed for reasons based on the
employer’s operational requirements severance pay equal to at least one week’s
remuneration for each completed year of continuous service with that employer,
calculated in accordance with section 35.
(3) The Minister may vary the amount of severance pay in terms of subsection (2) by
notice in theGazette. This variation may only be done after consulting NEDLAC and
the Public Service Co-ordinating Bargaining Council established under Schedule 1 of
the Labour Relations Act, 1995.
(4) 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 in terms of subsection (2).
(5) The payment of severance pay in compliance with this section does not affect an
employee’s right to any other amount payable according to law.19
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(6) If there is a dispute only about the entitlement to severance pay in terms of this
section, the employee may refer the dispute in writing toÐ
(a)a council, if the parties to the dispute fall within the registered scope of that
council; or
(b)the CCMA, if no council has jurisdiction.
(7) The employee who refers the dispute to the council or the CCMA must satisfy it
that a copy of the referral has been served on all the other parties to the dispute.
(8) The council or the CCMA must attempt to resolve the dispute through
conciliation.
(9) If the dispute remains unresolved, the employee may refer it to arbitration.
(10) If the Labour Court is adjudicating a dispute about a dismissal based on the
employer’s operational requirements, the Court may inquire into and determine the
amount of any severance pay to which the dismissed employee may be entitled and the
Court may make an order directing the employer to pay that amount.
Certi®cate of service
42.On termination of employment an employee is entitled to a certi®cate of service
statingÐ
(a)the employee’s full name;
(b)the name and address of the employer;
(c)a description of any council or sectoral employment standard by which the
employer’s business is covered;
(d)the date of commencement and date of termination of employment;
(e)the title of the job or a brief description of the work for which the employee
was employed at date of termination;
(f)the remuneration at date of termination; and
(g)if the employee so requests, the reason for termination of employment.
CHAPTER SIX
Prohibition of employment of children and forced labour
Prohibition of employment of children
43.(1) No person may employ a childÐ
(a)who is under 15 years of age; or
(b)who is under the minimum school-leaving age in terms of any law, if this is 15
or older.
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(2) No person may employ a child in employmentÐ
(a)that is inappropriate for a person of that age;
(b)that places at risk the child’s well-being, education, physical or mental health,
or spiritual, moral or social development.
(3) A person who employs a child in contravention of subsection (1) or (2) commits
an offence.
Employment of children of 15 years or older
44.(1) Subject to section 43(2), the Minister may, on the advice of the Commission,
make regulations to prohibit or place conditions on the employment of children who are
at least 15 years of age and no longer subject to compulsory schooling in terms of any
law.
(2) A person who employs a child in contravention of subsection (1) commits an
offence.
9. Section 31(1) of the South African Schools Act, 1996 (Act No. 84 of 1996), requires every parent to
cause every learner for whom he or she is responsible to attend a school until the last school day of the
year in which the learner reaches the age of 15 or the ninth grade, whichever is the ®rst.
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Medical examinations
45.The Minister may, after consulting the Commission, make regulations relating to
the conduct of medical examinations of children in employment.
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Prohibitions
46.It is an offence toÐ
(a)assist an employer to employ a child in contravention of this Act; or
(b)discriminate against a person who refuses to permit a child to be employed in
contravention of this Act.
Evidence of age
47.In any proceedings in terms of this Act, if the age of an employee is a relevant
factor for which insufficient evidence is available, it is for the party who alleges that the
employment complied with the provisions of this Chapter to prove that it was reasonable
for that party to believe, after investigation, that the person was not below the permitted
age in terms of section 43 or 44.
Prohibition of forced labour
48.(1) Subject to the Constitution, all forced labour is prohibited.
(2) No person may for his or her own bene®t or for the bene®t of someone else, cause,
demand or impose forced labour in contravention of subsection (1).
(3) A person who contravenes subsection (1) or (2) commits an offence.
CHAPTER SEVEN
Variation of basic conditions of employment
Variation by agreement
49.(1) A collective agreement concluded in a bargaining council may alter, replace or
exclude any basic condition of employment if the collective agreement is consistent
with the purpose of this Act and the collective agreement does notÐ
(a)reduce the protection afforded to employees by sections 7, 9 and any
regulation made in terms of section 13;
(b)reduce the protection afforded to employees who perform night work in terms
of section 17(3) and (4);
(c)reduce an employee’s annual leave in terms of section 20 to less than two
weeks;
(d)reduce an employee’s entitlement to maternity leave in terms of section 25;
(e)reduce an employee’s entitlement to sick leave in terms of sections 22 to 24;
(f)con¯ict with the provisions of Chapter Six.
(2) A collective agreement, other than an agreement contemplated in subsection (1),
may replace or exclude a basic condition of employment, to the extent permitted by this
Act or a sectoral determination.
(3) An employer and an employee may agree to replace or exclude a basic condition
of employment to the extent permitted by this Act or a sectoral determination.
(4) No provision in this Act or a sectoral determination may be interpreted as
permittingÐ
(a)a contract of employment or agreement between an employer and an
employee contrary to the provisions of a collective agreement;
(b)a collective agreement contrary to the provisions of a collective agreement
concluded in a bargaining council.
10. Section 90(3) protects the con®dentiality of any medical examination conducted in terms of this Act.
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Variation by Minister
50.(1) The Minister may, if it is consistent with the purpose of this Act, make a
determination to replace or exclude any basic condition of employment provided for in
this Act in respect ofÐ
(a)any category of employees or category of employers; or
(b)any employer or employee in respect of whom an application is made byÐ
(i) the employer;
(ii) the registered employers’ organisation;
(iii) the employer and the registered employers’ organisation.
(2) A determination in terms of subsection (1)Ð
(a)may not be made in respect of sections 7, 9, 17(3) and (4), 43(2), 44 or 48 or
a regulation made in terms of section 13; and
(b)may only be made in respect of section 43(1) to allow the employment of
children in the performance of advertising, sports, artistic or cultural
activities.
(3) A determination in terms of subsection 1(a)mustÐ
(a)be made on the advice of the Commission; and
(b)be issued by a notice in theGazette.
(4) The Minister may request the CommissionÐ
(a)to advise on any application made in terms of subsection (1)(b);
(b)to prepare guidelines for the consideration of applications made in terms of
subsection (1)(b).
(5) A determination in terms of subsection (1) that applies to the public service must
be made by the Minister with the concurrence of the Minister for the Public Service and
Administration.
(6) If a determination in terms of subsection (1) concerns the employment of children,
the Minister must consult with the Minister for Welfare and Population Development
before making the determination.
(7)(a)A determination in terms of subsection (1)(b)may be issued if the application
has the consent of every registered trade union that represents the employees in respect
of whom the determination is to apply.
(b)If no consent contemplated in paragraph(a)is obtained, a determination in terms
of subsection (1)(b)may be issued ifÐ
(i) the employer or employers’ organisation has served a copy of the application,
together with a notice stating that representations may be made to the
Minister, on any registered trade union that represents employees affected by
the application; and
(ii) in the case where the majority of employees are not represented by a
registered trade union, the employer or employer’s organisation has taken
reasonable steps to bring the application and the fact that representations may
be made to the Minister, to the attention of those employees.
(8) A determination made in terms of subsection (1)(b)Ð
(a)may be issued on any conditions and for a period determined by the Minister;
(b)may take effect on a date earlier than the date on which the determination is
given, but not earlier than the date on which application was made;
(c)must be issued in a notice in the prescribed form if the determination is made
in respect of an application made by an employer;
(d)must be published in a notice in theGazetteif the determination is made in
respect of an application made by an employers’ organisation.
(9)(a)The Minister may on application by any affected party and after allowing other
affected parties a reasonable opportunity to make representations, amend or withdraw a
determination issued in terms of subsection (1).
(b)For the purposes of paragraph(a), an affected party isÐ
(i) an employer or employer’s organisation that is covered by the determination;
(ii) a registered trade union representing employees covered by the determination,
or an employee covered by the determination who is not a member of a
registered trade union.22
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(10) An employer in respect of whom a determination has been made, or whose
employees are covered by a determination in terms of subsection (1), mustÐ
(a)display a copy of the notice conspicuously at the workplace where it can be
read by the employees to whom the determination applies;
(b)notify each employee in writing of the fact of the determination and of where
a copy of the notice has been displayed; and
(c)give a copy of the notice to everyÐ
(i) registered trade union representing those employees;
(ii) trade union representative representing those employees; and
(iii) employee who requests a copy.
CHAPTER EIGHT
Sectoral determinations
Sectoral determination
51.(1) The Minister may make a sectoral determination establishing basic conditions
of employment for employees in a sector and area.
(2) A sectoral determination must be made in accordance with this Chapter and by
notice in theGazette.
Investigation
52.(1) Before making a sectoral determination, the Minister must direct the
Director-General to investigate conditions of employment in the sector and area
concerned.
(2) The Minister must determine terms of reference for the investigation, which must
includeÐ
(a)the sector and area to be investigated;
(b)the categories or classes of employees to be included in the investigation; and
(c)the matters to be investigated, which may include any matter listed in section
55(4).
(3) The Minister must publish a notice in theGazettesetting out the terms of reference
of the investigation and inviting written representations by members of the public.
(4) If an organisation representing employers or employees in a sector and area makes
a written request to the Minister to investigate conditions of employment in that sector
and area, the Minister must eitherÐ
(a)direct the Director-General to conduct an investigation; or
(b)request the Commission to advise the Minister on whether the requested
investigation ought to be conducted.
Conduct of investigation
53.(1) For the purposes of conducting an investigation in terms of section 52(1), the
Director-General mayÐ
(a)question any person who may be able to provide information relevant to any
investigation; or
(b)require, in writing, any employer or employee in a sector and area that is being
investigated or any other person to furnish any information, book, document
or object that is material to the investigation within a speci®ed period, which
must be reasonable.
(2) A person may not refuse to answer any relevant question by the Director-General
that he or she is legally obliged to answer.
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Preparation of report
54.(1) On completion of an investigation, and after considering any representations
made by members of the public, the Director-General must prepare a report.
11. An answer by a person to a question put to him or her by a person conducting an investigation may
not be used in any criminal proceedings except proceedings in respect of a charge of perjury or
making a false statement (s. 91).
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(2) A copy of the report must be submitted to the Commission for its consideration.
(3) When advising the Minister on the publication of a sectoral determination, the
Commission must consider in respect of the sector and area concernedÐ
(a)the report prepared in terms of subsection (1);
(b)the ability of employers to carry on their business successfully;
(c)the operation of small, medium or micro-enterprises, and new enterprises;
(d)the cost of living;
(e)the alleviation of poverty;
(f)conditions of employment;
(g)wage differentials and inequality;
(h)the likely impact of any proposed condition of employment on current
employment or the creation of employment;
(i)the possible impact of any proposed conditions of employment on the health,
safety or welfare of employees;
(j)any other relevant information made available to the Commission.
(4) The Commission must prepare a report for the Minister containing recommenda-
tions on the matters which should be included in a sectoral determination for the relevant
sector and area.
Making of sectoral determination
55.(1) After considering the report and recommendations of the Commission
contemplated in section 54(4), the Minister may make a sectoral determination for one
or more sector and area.
(2) If the Minister does not accept a recommendation of the Commission made in
terms of section 54(4), the Minister must refer the matter to the Commission for its
reconsideration indicating the matters on which the Minister disagrees with the
Commission.
(3) After considering the further report and recommendations of the Commission, the
Minister may make a sectoral determination.
(4) A sectoral determination may in respect to the sector and area concernedÐ
(a)set minimum terms and conditions of employment, including minimum rates
of remuneration;
(b)provide for the adjustment of minimum rates of remuneration;
(c)regulate the manner, timing and other conditions of payment of remuneration;
(d)prohibit or regulate payment of remuneration in kind;
(e)require employers to keep employment records;
(f)require employers to provide records to their employees;
(g)prohibit or regulate task-based work, piecework, home work and contract
work;
(h)set minimum standards for housing and sanitation for employees who reside
on their employers’ premises;
(i)regulate payment of travelling and other work-related allowances;
(j)specify minimum conditions of employment for trainees;
(k)specify minimum conditions of employment for persons other than employ-
ees;
(l)regulate training and education schemes;
(m)regulate pension, provident, medical aid, sick pay, holiday and unemployment
schemes or funds; and
(n)regulate any other matter concerning remuneration or other terms or
conditions of employment.
(5) Any provisions of a sectoral determination may apply to all or some of the
employers and employees in the sector and area concerned.
(6) A sectoral determination in terms of subsection (1)Ð
(a)may not be made in respect of section 7, 43(2) or 44;
(b)may only be made in respect of section 43(1) to allow the employment of
children in the performance of advertising, sports, artistic or cultural
activities;
(c)may not reduce the protection afforded to employees by sections 9 and 17 (3)
and (4) or a regulation made in terms of section 13.
(7) The Minister may not publish a sectoral determinationÐ24
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(a)covering employees and employers who are bound by a collective agreement
concluded at a bargaining council;
(b)regulating any matter in a sector and area in which a statutory council is
established and in respect of which that statutory council has concluded a
collective agreement;
(c)regulating any matter regulated by a sectoral determination for a sector and
area which has been in effect for less than 12 months.
Period of operation of sectoral determination
56.(1) The provisions of a sectoral determination remain binding until they are
amended or superseded by a new or amended sectoral determination, or they are
cancelled or suspended by the Minister.
(2) Ifacollectiveagreement contemplatedinsection 55(6)(a)or(b)is concluded, the
provisions of a sectoral determination cease to be binding upon employers and
employees covered by the agreement.
(3) The Minister may, by notice in theGazetteÐ
(a)cancel or suspend any provision of a sectoral determination, either in the
sector and area as a whole or in part of the sector or in a speci®c area; or
(b)correct or clarify the meaning of any provision of a sectoral determination as
previously published.
(4) Before publishing anoticeof cancellation or suspension intermsof subsection
(3)(a)the Minister must, by notice in theGazette, announce the intention to do so, and
allow an opportunity for public comment.
Legal effect of sectoral determination
57.If a matter regulated in this Act is also regulated in terms of a sectoral
determination, the provision in the sectoral determination prevails.
Employer to keep a copy of sectoral determination
58.Unless a sectoral determination provides otherwise, every employer on whom the
sectoral determination is binding mustÐ
(a)keep a copy of that sectoral determination available in the workplace at all
times;
(b)make that copy available for inspection by an employee; and
(c)give a copy of that sectoral determinationÐ
(i) to an employee who has paid the prescribed fee; and
(ii) free of charge, on request, to an employee who is a trade union
representative or a member of a workplace forum.
CHAPTER NINE
Employment Conditions Commission
Establishment and functions of Employment Conditions Commission
59.(1) The Employment Conditions Commission is hereby established.
(2) The functions of the Commission are to advise the MinisterÐ
(a)on sectoral determinations in terms of Chapter Eight;
(b)on any matter concerning basic conditions of employment;
(c)on any matter arising out of the application of this Act;
(d)on the effect of the policies of the government on employment;
(e)on trends in collective bargaining and whether any of those trends undermine
the purpose of this Act;
(f)and the Minister for Welfare and Population Development, on any matter
concerning the employment of children, including the review of section 43;
(g)and the Minister for the Public Service and Administration, on any matter
concerning basic conditions of employment in the public service.25
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(3) The Commission may draw up rules for the conduct of its meetings and public
hearings.
(4) Subject to the laws governing the public service, the Minister must provide the
Commission with the staff that the Minister considers necessary for the performance of
its functions.
(5) The Minister must direct the Director-General to undertake research that is
required to enable the Commission to perform its functions.
(6) The expenses of the Commission are to be met by money appropriated by
Parliament for that purpose and which is subject to audit by the Auditor-General,
referred to in section 188 of the Constitution.
Composition of Commission
60.(1) The Minister must, after consultation with NEDLAC, appoint as members of
the Commission three persons who are knowledgeable about the labour market and
conditions of employment, including the conditions of employment of vulnerable and
unorganised workers, and designate one of them as the chairperson.
(2) The Minister must, in addition, appoint two more members to the CommissionÐ
(a)one of whom must be nominated by the voting members of NEDLAC
representing organised labour;
(b)one of whom must be nominated by the voting members of NEDLAC
representing organised business.
(3) The chairperson and members of the CommissionÐ
(a)must be citizens or permanent residents of the Republic;
(b)must act impartially when performing any function of the Commission;
(c)may not engage in any activity that may undermine the integrity of the
Commission; and
(d)must recuse themselves from advising the Minister on any matter in respect of
which they have a direct ®nancial interest or any other con¯ict of interest.
(4) The Minister must determineÐ
(a)the term of office of the chairperson and members of the Commission, which
may not be more than three years;
(b)with the concurrence of the Minister of Finance, the remuneration and
allowances to be paid to members of the Commission; and
(c)any other conditions of appointment not provided for in this section.
(5) The Minister must appoint a member to act as chairperson wheneverÐ
(a)the chairperson is absent from the Republic or from duty, or for any reason is
temporarily unable to function as chairperson; or
(b)the office of chairperson is vacant.
(6) A person whose period of office as the chairperson or a member of the
Commission has expired is eligible for reappointment.
(7) The chairperson or a member of the Commission may resign in writing.
(8) The Minister may remove the chairperson or a member of the Commission from
office forÐ
(a)serious misconduct;
(b)permanent incapacity; or
(c)engaging in any activity that may undermine the integrity of the Commission.
Public hearings
61.The Commission may hold public hearings at which it may permit members of the
public to make oral representations on any matter that the Commission is considering in
terms of section 59(2).
Report by Commission
62.(1) The Commission’s advice to the Minister must be in the form of a written
report.
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to(e), take into account the considerations set out in section 54(3) to the extent that they
are appropriate.
(3) The members of the Commission must endeavour to prepare a unanimous report
to the Minister. If the members are not able to prepare a unanimous report, each member
is entitled to have his or her views re¯ected in the report.
CHAPTER TEN
Monitoring, enforcement and legal proceedings
PA RT A
Monitoring and enforcement
Appointment of labour inspectors
63.(1) The Minister mayÐ
(a)appoint any person in the public service as a labour inspector;
(b)designate any person in the public service, or any person appointed as a
designated agent of a bargaining council in terms of section 33 of the Labour
Relations Act, 1995, to perform any of the functions of a labour inspector.
(2) Any person appointed under subsection (1) must perform his or her functions in
terms of this Chapter, subject to the direction and control of the Minister.
(3) The Minister must provide each labour inspector with a signed certi®cate in the
prescribed form statingÐ
(a)that the person is a labour inspector;
(b)which legislation that labour inspector may monitor and enforce; and
(c)which of the functions of a labour inspector that person may perform.
Functions of labour inspectors
64.(1) A labour inspector appointed under section 63(1) may promote, monitor and
enforce compliance with an employment law byÐ
(a)advising employees and employers of their rights and obligations in terms of
an employment law;
(b)conducting inspections in terms of this Chapter;
(c)investigating complaints made to a labour inspector;
(d)endeavouring to secure compliance with an employment law by securing
undertakings or issuing compliance orders; and
(e)performing any other prescribed function.
(2) A labour inspector may not perform any function in terms of this Act in respect of
an undertaking in respect of which the labour inspector has, or may reasonably be
perceived to have, any personal, ®nancial or similar interest.
Powers of entry
65.(1) In order to monitor and enforce compliance with an employment law, a labour
inspector may, without warrant or notice, at any reasonable time, enterÐ
(a)any workplace or any other place where an employer carries on business or
keeps employment records, that is not a home;
(b)any premises used for training in terms of the Manpower Training Act, 1981
(Act No. 56 of 1981); or
(c)any private employment office registered under section 15 of the Guidance
and Placement Act, 1981 (Act No. 62 of 1981).
(2) A labour inspector may enter a home or any place other than a place referred to in
subsection (1) onlyÐ
(a)with the consent of the owner or occupier; or
(b)if authorised to do so in writing in terms of subsection (3).
(3) The Labour Court may issue an authorisation contemplated in subsection (2) only
on written application by a labour inspector who states under oath or affirmation the27
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reasons for the need to enter a place in order to monitor or enforce compliance with any
employment law.
(4) If it is practical to do so, the employer and a trade union representative must be
noti®ed that the labour inspector is present at a workplace and of the reason for the
inspection.
Powers to question and inspect
66.(1) In order to monitor or enforce compliance with an employment law, a labour
inspector mayÐ
(a)require a person to disclose information, either orally or in writing, and either
alone or in the presence of witnesses, on any matter to which an employment
law relates, and require that the disclosure be made under oath or affirmation;
(b)inspect, and question a person about, any record or document to which an
employment law relates;
(c)copy any record or document referred to in paragraph(b), or remove these to
make copies or extracts;
(d)require a person to produce or deliver to a place speci®ed by the labour
inspector any record or document referred to in paragraph(b)for inspection;
(e)inspect, question a person about, and if necessary remove, any article,
substance or machinery present at a place referred to in section 65;
(f)inspect or question a person about any work performed; and
(g)perform any other prescribed function necessary for monitoring or enforcing
compliance with an employment law.
(2) A labour inspector may be accompanied by an interpreter and any other person
reasonably required to assist in conducting the inspection.
(3) A labour inspector mustÐ
(a)produce on request the certi®cate referred to in section 63(3);
(b)provide a receipt for any record, document, article, substance or machinery
removed in terms of subsection (1)(c)or(e); and
(c)return anything removed within a reasonable period of time.
(4) The powers provided for in this Part are in addition to any power of a labour
inspector in terms of any other employment law.
Co-operation with labour inspectors
67.(1) Any person who is questioned by a labour inspector in terms of section 66 must
answer all relevant questions lawfully put to that person truthfully and to the best of his
or her ability.
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(2) Every employer and each employee must provide any facility and assistance at a
workplace that is reasonably required by a labour inspector to perform the labour
inspector’s functions effectively.
Securing an undertaking
68.(1) A labour inspector who has reasonable grounds to believe that an employer has
not complied with any provision of this Act must endeavour to secure a written
undertaking by the employer to comply with the provision.
(2) In endeavouring to secure the undertaking, the labour inspectorÐ
(a)may seek to obtain agreement between the employer and employee as to any
amount owed to the employee in terms of this Act;
(b)may arrange for payment to an employee of any amount paid as a result of an
undertaking;
(c)may, at the written request of an employee, receive payment on behalf of the
employee; and
(d)must provide a receipt for any payment received in terms of paragraph(c).
12. An answer by a person to a question of a labour inspector may not be used in any criminal
proceedings except proceedings in respect of a charge of perjury or making a false statement (s. 91).
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Compliance order
69.(1) A labour inspector who has reasonable grounds to believe that an employer has
not complied with a provision of this Act may issue a compliance order.
(2) A compliance order must set outÐ
(a)the name of the employer, and the location of every workplace, to which it
applies;
(b)any provision of this Act that the employer has not complied with, and details
of the conduct constituting non-compliance;
(c)any amount that the employer is required to pay to an employee;
(d)any written undertaking by the employer in terms of section 68(1) and any
failure by the employer to comply with a written undertaking;
(e)any steps that the employer is required to take including, if necessary, the
cessation of the contravention in question and the period within which those
steps must be taken; and
(f)the maximum ®ne that may be imposed upon the employer in accordance with
Schedule Two for a failure to comply with a provision of this Act.
(3) A labour inspector must deliver a copy of the compliance order to the employer
named in it, and to each employee affected by it or, if this is impractical, a representative
of the employees.
(4) The employer must display a copy of the compliance order prominently at a place
accessible to the affected employees at each workplace named in it.
(5) An employer must comply with the compliance order within the time period stated
in the order unless the employer objects in terms of section 71.
Limitations
70.A labour inspector may not issue a compliance order in respect of any amount
payable to an employee as a result of a failure to comply with a provision of this Act ifÐ
(a)the employee is covered by a collective agreement that provides for resolution
by arbitration of disputes concerning amounts owing in terms of this Act;
(b)the employee is employed in a category of employees mentioned in section
6(1)(a)or in respect of which a notice has been issued in terms of section 6(3);
(c)any proceedings have been instituted for the recovery of that amount or, if
proceedings have been instituted, those proceedings have been withdrawn; or
(d)that amount has been payable for longer than 12 months.
Objections to compliance order
71.(1) An employer may object to a compliance order by making representations in
writing to the Director-General within 21 days of receipt of that order.
(2) If the employer shows good cause at any time, the Director-General may permit
the employer to object after the period of 21 days has expired.
(3) After considering any representations by the employer and any other relevant
information, the Director-GeneralÐ
(a)may con®rm, modify or cancel an order or any part of an order; and
(b)must specify the period within which the employer must comply with any part
of an order that is con®rmed or modi®ed.
(4) The information that the Director-General must consider includesÐ
(a)any evidence concerning the employer’s compliance record;
(b)the likelihood that the employer was aware of the relevant provisions; and
(c)the steps taken by the employer to ensure compliance with the relevant
provision.
(5) The Director-General must serve a copy of the order made in terms of subsection
(3) on the employer and on each employee affected by it or, if this is impractical, on a
representative of the employees.29
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(6) If the Director-General con®rms or modi®es the order or any part of the order, the
employer must comply with that order within the time period speci®ed in that order.
Appeals from order of Director-General
72.(1) An employer may appeal to the Labour Court against an order of the
Director-General within 21 days of receipt of that order.
(2) The order is suspended pending the ®nal determination of the appeal by the
Labour Court or any appeal from the Labour Court.
(3) If the employer shows good cause at any time, the Labour Court may permit the
employer to appeal after the period of 21 days has expired.
Order may be made order of Labour Court
73.(1) The Director-General may apply to the Labour Court for a compliance order
to be made an order of the Labour Court in terms of section 158(1)(c)of the Labour
Relations Act, 1995, if the employer has not complied with the order and has not lodged
an objection against the order in terms of section 71(1).
(2) The Director-General may apply to the Labour Court for an order of the
Director-General in terms of section 71(3) to be made an order of the Labour Court in
terms of section 158(1)(c)of the Labour Relations Act, 1995, if the employer has not
complied with the order and has not appealed against the order in terms of section 72(1).
(3) For the purposes of section 158(1)(c)of the Labour Relations Act, 1995, a
compliance order or an order in terms of section 71(3) is deemed to be an arbitration
award.
PA RT B
Legal proceedings
Consolidation of proceedings
74.(1) A dispute concerning a contravention of this Act may be instituted jointly with
proceedings instituted by an employee under Part C of this Chapter.
(2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the
arbitrator hearing the matter may also determine any claim for an amount that is owing
to that employee in terms of this Act ifÐ
(a)the claim is referred in compliance with section 191 of the Labour Relations
Act, 1995;
(b)the amount has not been owing to the employee for longer than one year; and
(c)no compliance order has been made and no other legal proceedings have been
instituted to recover the amount.
(3) A dispute concerning any amount that is owing to an employee as a result of a
contravention of this Act may be initiated jointly with a dispute instituted by that
employee over the entitlement to severance pay in terms of section 41(6).
Payment of interest
75.An employer must pay interest on any amount due and payable in terms of the
Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), to any person to whom a
payment should have been made.
Proof of compliance
76.(1) In any proceedings concerning a contravention of this Act or any sectoral
determination it is for an employerÐ
(a)to prove that a record maintained by or for that employer is valid and accurate;30
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(b)who has failed to keep any record required by this Act that is relevant to those
proceedings, to prove compliance with any provision of this Act.
Jurisdiction of Labour Court
77.(1) Subject to the Constitution and the jurisdiction of the Labour Appeal Court,
and except where this Act provides otherwise, the Labour Court has exclusive
jurisdiction in respect of all matters in terms of this Act, except in respect of an offence
speci®ed in sections 43, 44, 46, 48, 90 and 92.
(2) The Labour Court may review the performance or purported performance of any
function provided for in this Act or any act or omission of any person in terms of this Act
on any grounds that are permissible in law.
(3) The Labour Court has concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract of employment, irrespective of whether any
basic condition of employment constitutes a term of that contract.
(4) Subsection (1) does not prevent any person relying upon a provision of this Act to
establish that a basic condition of employment constitutes a term of a contract of
employment in any proceedings in a civil court or an arbitration held in terms of an
agreement.
(5) If proceedings concerning any matter contemplated in terms of subsection (1) are
instituted in a court that does not have jurisdiction in respect of that matter, that court
may at any stage during proceedings refer that matter to the Labour Court.
PA RT C
Protection of employees against discrimination
Rights of employees
78.(1) Every employee has the right toÐ
(a)make a complaint to a trade union representative, a trade union official or a
labour inspector concerning any alleged failure or refusal by an employer to
comply with this Act;
(b)discuss his or her conditions of employment with his or her fellow employees,
his or her employer or any other person;
(c)refuse to comply with an instruction that is contrary to this Act or any sectoral
determination;
(d)refuse to agree to any term or condition of employment that is contrary to this
Act or any sectoral determination;
(e)inspect any record kept in terms of this Act that relates to the employment of
that employee;
(f)participate in proceedings in terms of this Act;
(g)request a trade union representative or a labour inspector to inspect any record
kept in terms of this Act and that relates to the employment of that employee.
(2) Every trade union representative has the right, at the request of an employee, to
inspect any record kept in terms of this Act that relates to the employment of that
employee.
Protection of rights
79.(1) In this section, “employee” includes a former employee or an applicant for
employment.
(2) No person may discriminate against an employee for exercising a right conferred
by this Part and no person may do, or threaten to do, any of the following:
(a)Require an employee not to exercise a right conferred by this Part;
(b)prevent an employee from exercising a right conferred by this Part; or
(c)prejudice an employee because of a past, present or anticipatedÐ31
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(i) failure or refusal to do anything that an employer may not lawfully
permit or require an employee to do;
(ii) disclosure of information that the employee is lawfully entitled or
required to give to another person; or
(iii) exercise of a right conferred by this Part.
(3) No person may favour, or promise to favour, an employee in exchange for the
employee not exercising a right conferred by this Part. However, nothing in this section
precludes the parties to a dispute from concluding an agreement to settle the dispute.
Procedure for disputes
80.(1) If there is a dispute about the interpretation or application of this Part, any
party to the dispute may refer the dispute in writing toÐ
(a)a council, if the parties to the dispute fall within the registered scope of that
council; or
(b)the CCMA, if no council has jurisdiction.
(2) The party who refers a dispute must satisfy the council or the CCMA that a copy
of the referral has been served on all the other parties to the dispute.
(3) The council or the CCMA must attempt to resolve a dispute through conciliation.
(4) If a dispute remains unresolved, any party to the dispute may refer it to the Labour
Court for adjudication.
(5) In respect of a dispute in terms of this Part, the relevant provisions of Part C of
Chapter VII of the Labour Relations Act, 1995, apply with the changes required by the
context.
Burden of proof
81.In any proceeding in terms of this PartÐ
(a)an employee who alleges that a right or protection conferred by this Part has
been infringed, must prove the facts of the conduct said to constitute such
infringement; and
(b)the party who allegedly engaged in the conduct in question must then prove
that the conduct did not infringe any provision of this Part.
CHAPTER ELEVEN
General
Temporary employment services
82.(1) For the purposes of this Act, a person whose services have been procured for,
or provided to, a client by a temporary employment service is the employee of that
temporary employment service, and the temporary employment service is that person’s
employer.
(2) Despite subsection (1), a person who is an independent contractor is not an
employee of a temporary employment service, nor is the temporary employment service
the employer of that person.
(3) The temporary employment service and the client are jointly and severally liable
if the temporary employment service, in respect of any employee who provides services
to that client, does not comply with this Act or a sectoral determination.
Deeming of persons as employees
83.(1) The Minister may, on the advice of the Commission and by notice in the
Gazette, deem any category of persons speci®ed in the notice to be employees for
purposes of this Act or any sectoral determination.
(2) Before the Minister issues a notice under subsection (1), the Minister mustÐ
(a)publish a draft of the proposed notice in theGazette; and
(b)invite interested persons to submit written representations on the proposed
notice within a reasonable period.32
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Duration of employment
84.(1) For the purposes of determining the length of an employee’s employment with
an employer for any provision of this Act, previous employment with the same employer
must be taken into account if the break between the periods of employment is less than
one year.
(2) Any payment made or any leave granted in terms of this Act to an employee
contemplated in subsection (1) during a previous period of employment must be taken
into account in determining the employee’s entitlement to leave or to a payment in terms
of this Act.
Delegation
85.(1) The Minister may in writing delegate or assign to the Director-General or any
employee in the public service of the rank of assistant director or of a higher rank, any
power or duty conferred or imposed upon the Minister in terms of this Act, except the
Minister’s powers in terms of sections 6(3), 55(1), 60, 83, 87 and 95(2) and the
Minister’s power to make regulations.
(2) A delegation or assignment in terms of subsection (1) does not limit or restrict the
Minister’s authority to exercise or perform the delegated or assigned power or duty.
(3) Any person to whom a power or duty is delegated or assigned in terms of
subsection (1) must exercise or perform that power or duty subject to the direction of the
Minister.
(4) The Minister may at any timeÐ
(a)withdraw a delegation or assignment made in terms of subsection (1); and
(b)withdraw or amend any decision made by a person exercising or performing
a power or duty delegated or assigned in terms of subsection (1).
(5) The Director-General may in writing delegate or assign any power or duty
conferred or imposed upon the Director-General by Chapter Ten of this Act to any
employee in the Department of the rank of assistant director or of a higher rank.
(6) Subsections (2), (3) and (4) apply with changes required by the context to any
delegations or assignments by the Director-General under subsection (5).
Regulations
86.(1) The Minister may by notice in theGazette, after consulting the Commission,
make regulations regarding any matter that may be necessary or expedient to prescribe
in order to achieve the objects of this Act.
(2) A regulation regarding state revenue or expenditure may be made only with the
concurrence of the Minister of Finance.
Codes of Good Practice
87.(1) The Minister, after consulting NEDLACÐ
(a)must issue a Code of Good Practice on the Arrangement of Working Time;
(b)must issue a Code of Good Practice on the Protection of Employees during
Pregnancy and after the Birth of a Child;
(c)may issue other codes of good practice; and
(d)may change or replace any code of good practice.
(2) Any code of good practice or any change to or replacement of a code of good
practice must be published in theGazette.
(3) Any person interpreting or applying this Act must take into account relevant codes
of good practice.
Minister’s power to add and change footnotes
88.The Minister may, by notice in theGazette, add to, change or replace any footnote
in this Act.33
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Representation of employees or employers
89.(1) A registered trade union or registered employers’ organisation may act in any
one or more of the following capacities in any dispute to which any of its members is a
party:
(a)In its own interest;
(b)on behalf of any of its members;
(c)in the interest of any of its members.
(2) A registered trade union or a registered employers’ organisation is entitled to be a
party to any proceedings in terms of this Act if one or more of its members is a party to
these proceedings.
Con®dentiality
90.(1) It is an offence for any person to disclose information which that person
acquired while exercising or performing any power or duty in terms of this Act and
which relates to the ®nancial or business affairs of any other person, except if the
information is disclosed in compliance with the provisions of any lawÐ
(a)to enable a person to perform a function or exercise a power in terms of an
employment law;
(b)for the purposes of the proper administration of this Act;
(c)for the purposes of the administration of justice.
(2) Subsection (1) does not prevent the disclosure of any information concerning an
employer’s compliance or non-compliance with the provisions of any employment law.
(3) The record of any medical examination performed in terms of this Act must be
kept con®dential and may be made available onlyÐ
(a)in accordance with the ethics of medical practice;
(b)if required by law or court order; or
(c)if the employee has in writing consented to the release of that information.
Answers not to be used in criminal prosecutions
91.No answer by any person to a question by a person conducting an investigation in
terms of section 53 or by a labour inspector in terms of section 66 may be used against
that person in any criminal proceedings except proceedings in respect of a charge of
perjury or making a false statement.
Obstruction, undue in¯uence and fraud
92.It is an offence toÐ
(a)obstruct or attempt to in¯uence improperly a person who is performing a
function in terms of this Act;
(b)obtain or attempt to obtain any prescribed document by means of fraud, false
pretences, or by presenting or submitting a false or forged document;
(c)pretend to be a labour inspector or any other person performing a function in
terms of this Act;
(d)refuse or fail to answer fully any lawful question put by a labour inspector or
any other person performing a function in terms of this Act;
(e)refuse or fail to comply with any lawful request of, or lawful order by, a labour
inspector or any other person performing a function in terms of this Act;
(f)hinder or obstruct a labour inspector or any other person performing a
function in terms of this Act.
Penalties
93.(1) Any magistrates’ court has jurisdiction to impose a penalty for an offence
provided for in this Act.
(2) Any person convicted of an offence in terms of any section mentioned in the ®rst34
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column of the table below may be sentenced to a ®ne or imprisonment for a period not
longer than the period mentioned in the second column of that table opposite the number
of that section.
OFFENCES AND PENALTIES
Section under which convicted Maximum term of imprisonment
Section 43 3 years
Section 44 3 years
Section 46 3 years
Section 48 3 years
Section 90(1) and (3) 1 year
Section 92 1 year
This Act binds the State
94.This Act binds the State except in so far as criminal liability is concerned.
Transitional arrangements and amendment and repeal of laws
95.(1) The provisions of Schedule Three apply to the transition from other laws to
this Act.
(2) The Minister may for the purposes of regulating the transition from any law to this
Act add to or change Schedule Three.
(3) Any addition or change to Schedule Three must be tabled in the National
Assembly and takes effectÐ
(a)if the National Assembly does not pass a resolution that the addition or change
is not binding within 14 days of the date of the tabling; and
(b)on publication in theGazette.
(4) Section 186 of the Labour Relations Act, 1995, is hereby amended by the deletion
of subparagraph (ii) of paragraph(c).
(5) The laws mentioned in the ®rst two columns of Schedule Four are hereby repealed
to the extent indicated opposite that law in the third column of that Schedule.
(6) The repeal of any law by subsection (5) does not affect any transitional
arrangement provided for in Schedule Three.
Short title and commencement
96.This is the Basic Conditions of Employment Act, 1997, and comes into effect on
a date to be ®xed by the President by proclamation in theGazette. 35
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SCHEDULE ONE
PROCEDURES FOR PROGRESSIVE REDUCTION OF MAXIMUM
WORKING HOURS
Goal
1.This Schedule records the procedures to be adopted to reduce the working hours of
employees to the goal of a 40 hour working week and an eight hour working dayÐ
(a)through collective bargaining and the publication of sectoral determinations;
(b)having due regard to the impact of a reduction of working hours on existing
employment and opportunities for employment creation, economic efficiency
and the health, safety and welfare of employees.
Collective bargaining
2.When during negotiations on terms and conditions of employment, a party to the
negotiations introduces the reduction of maximum working hours as a subject for
negotiation, the parties must negotiate on that issue.
Role of Employment Conditions Commission
3.The Commission may investigate the possibility of reducing working hours in a
particular sector and area and make recommendations to the Minister thereon.
Investigation by Department of Labour
4.(1) The Department of Labour must, after consultation with the Commission,
conduct an investigation as to how the reduction of weekly working hours to a level of
40 hours per week may be achieved.
(2) The investigation must be completed and the report submitted to the Minister not
later than 18 months after the Act has come into operation.
Reports
5.(1) The Department of Labour must, after consultation with the CommissionÐ
(a)monitor and review progress made in reducing working hours;
(b)prepare and publish a report for the Minister on the progress made in the
reduction of working hours.
(2) The Department must publish reports every two years.
(3) The reports must be tabled at Nedlac and in Parliament by the Minister.
(4) The Minister may prescribe the returns to be submitted by employers, trade unions
and councils on any matter concerning this Schedule.
SCHEDULE TWO
MAXIMUM PERMISSIBLE FINES THAT MAY BE IMPOSED FOR FAILURE
TO COMPLY WITH THIS ACT
1. This Schedule sets out the maximum ®ne that may be imposed in terms of Chapter
Ten for a failure to comply with a provision of this Act.
2. The maximum ®ne that may be imposedÐ
(a)for a failure to comply with a provision of this Act not involving a failure to
pay an amount due to an employee in terms of any basic condition of
employment, is the ®ne determined in terms of Table One or Table Two;
(b)involving a failure to pay an amount due to an employee, is the greater of the
amount determined in terms of Table One or Table Two.36

TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN
UNDERPAYMENT
No previous failure to comply R100 per employee in respect of whom the failure
to comply occurs
A previous failure to comply in respect of the same
provisionR200 per employee in respect of whom the failure
to comply occurs
A previous failure to comply within the previous
12 months or two previous failures to comply in
respect of the same provision within three yearsR300 per employee in respect of whom the failure
to comply occurs
Three previous failures to comply in respect of the
same provision within three yearsR400 per employee in respect of whom the failure
to comply occurs
Four previous failures to comply in respect of the
same provision within three yearsR500 per employee in respect of whom the failure
to comply occurs
TABLE TWO: MAXIMUM PERMISSIBLE FINE INVOLVING AN
UNDERPAYMENT
No previous failure to comply 25% of the amount due, including any interest
owing on the amount at the date of the order
A previous failure to comply in respect of the same
provision within three years50% of the amount due, including any interest
owing on the amount at the date of the order
A previous failure to comply in respect of the same
provision within a year, or two previous failures to
comply in respect of the same provision within
three years75% of the amount due, including any interest
owing on the amount at the date of the order
Three previous failures to comply in respect of the
same provision within three years100% of the amount due, including any interest
owing on the amount at the date of the order
Four or more previous failures to comply in re-
spect of the same provision within three years200% of the amount due, including any interest
owing on the amount at the date of the order
SCHEDULE THREE
TRANSITIONAL PROVISIONS
De®nitions
1.For the purposes of this ScheduleÐ
“Basic Conditions of Employment Act, 1983” means the Basic Conditions of
Employment Act, 1983 (Act No. 3 of 1983);
“domestic worker” means an employee de®ned as a “domestic servant” in section
1(1) of the Basic Conditions of Employment Act, 1983;
“farm worker” means an employee who is employed mainly in or in connection
with farming activities, and includes an employee who wholly or mainly performs
domestic work in home premises on a farm;
“mineworker” means an employee employed at a mine whose hours of work are
prescribed in terms of any regulation that is in force in terms of item 4 of Schedule
4 to the Mine Health and Safety Act, 1996 (Act No. 29 of 1996);
“security guard” means an employee de®ned as a “guard” or a “security guard” in
terms of the Basic Conditions of Employment Act, 1983;
“Wage Act, 1957” means the Wage Act, 1957 (Act No. 5 of 1957);
“wage determination” means a wage determination made in terms of section 14 of
the Wage Act, 1957.37

Application to public service
2.This Act, except section 41, does not apply to the public service for 18 months after
the commencement of this Act, unless a bargaining council concludes a collective
agreement that a provision of this Act will apply from an earlier date.
Application to farm workers
3.(1) Sections 6A, 10(2A) and 14(4A) of the Basic Conditions of Employment Act,
1983, continue to apply to the employment of a farm worker until such time as the
matters regulated by those provisions are regulated by a sectoral determination
applicable to the farm worker.
(2) Until regulated by a sectoral determination, section 17(3) applies to farm workers
who work after 20:00 and before 04:00 at least ®ve times per month or 50 times per year.
Payment in kind of domestic workers and farm workers
4.(1) The de®nition of “wage” in section 1(1) of the Basic Conditions of
Employment Act, 1983, and the de®nition of “payment in kind” in the regulations
published under that Act continue to apply to the employment of domestic workers and
farm workers, until regulated by a sectoral determination.
(2) The Minister may, by notice in theGazette, amend any cash amount prescribed in
the de®nition of “payment in kind” in accordance with section 37 of the Basic
Conditions of Employment Act, 1983, as if that section had not been repealed.
Ordinary hours of work
5.An employer may require or permit an employee who is employed as a farm
worker, mineworker or security guard to work ordinary hours of work in excess of those
prescribed by section 9(1) and (2) for the period speci®ed in column two of Table One:
Provided thatÐ
(a)any condition in column two of Table One is complied with;
(b)the employee’s hours of work do not exceed any limit on hours of work in any
law or any wage-regulating measure applicable to that category of employee
immediately before this Act came into effect;
(c)the employee and his or her employer do not conclude an agreement in terms
of sections 11 and 12.
TABLE ONE
Farm workers For a period of 12 months after the commencement
date of this Act, provided that the employee’s
ordinary hours of work do not exceed 48 hours per
week.
Mineworkers For a period of 12 months after the commencement
date of this Act, provided that the employee’s total
hours of work do not exceed any limit on hours or
work prescribed in any applicable regulation that is
in force in terms of item 4 of Schedule 4 to the
Mine Health and Safety Act, 1996 (Act No. 29 of
1996).
Security guards For a period of 12 months after the commencement
date of this Act, provided that the employee’s ordi-
nary hours of work do not exceed 55 hours per
week; and thereafter for a further period of 12
months, provided that the employee’s ordinary
hours of work do not exceed 50 hours per week.
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Leave pay
6.(1) The entitlement in terms of section 20(2) of an employee employed
continuously before and after the commencement of this Act takes effect on the date on
which, but for the enactment of this Act, the employee would next have commenced a
leave cycle in terms of section 12 of the Basic Conditions of Employment Act, 1983, or
any wage determination.
(2) Any accrued leave to which an employee was entitled in terms of section 12 of the
Basic Conditions of Employment Act, 1983, or a wage determination, but which has not
been granted by the date on which section 20(2) takes effect with respect to that
employee, must be added to the paid leave earned by that employee in terms of this Act.
(3) Section 22(3) does not apply to any leave earned by the employee in respect of any
period prior to the date on which this Act takes effect.
Pay for sick leave
7.(1) Table Two applies in respect of any employee, as de®ned in the Basic
Conditions of Employment Act, 1983, in employment at the commencement of this Act.
(2) An employee listed in column one who was in continuous employment before the
commencement of this Act for the period set out in column two becomes entitled to the
rights under section 22(2) on the date listed in column three and section 22(3) on the date
listed in column four.
TABLE TWO
TRANSITIONAL ARRANGEMENTS IN RELATION TO SICK LEAVE
Employees as de®ned
in the Basic Conditions
of Employment Act,
1983Period of continuous
employment before
commencement date of
this ActDate of entitlement to
six weeks’ paid sick
leave over 36-months
sick leave cycle in
terms of section 22(2)Date of entitlement to
one day’s paid sick
leave every 26 days
worked during the ®rst
six consecutive months
of employment in
terms of section 22(3)
Employees and regular
day workersLess than six months Six months after com-
mencement date of em-
ploymentDate on which em-
ployee began employ-
ment
Casual employees Less than six months Six months after com-
mencement date of em-
ploymentCommencement date of
this Act
Regular day workers
and casual employeesMore than six months Commencement date of
this ActNot applicable
Employees (other than
casual workers and
regular day workers)Between six and 12
monthsCommencement date of
this ActNot applicable
Employees More than 12 months At conclusion of current
sick leave cycle in terms
of section 13(1) of the
Basic Conditions of Em-
ployment Act, 1983Not applicable
(3) Any period of paid sick leave granted to an employee in accordance with Table
Two, may be deducted from the employee’s entitlement in terms of either section 22(2)
or section 22(3), ifÐ
(a)it was taken before the commencement of this Act; or
(b)it was taken during the period that the relevant section was in effect with
respect to that employee.39

Exemptions
8.Any exemption granted under section 34 of the Basic Conditions of Employment
Act, 1983, in force immediately before the commencement of this Act remains in force
for the period for which the exemption was granted, or if the exemption was granted for
an inde®nite period, for a period of six months after the commencement of this Act as if
that Act had not been repealed, unless it is withdrawn by the Minister, before the end of
such period.
Wage determinations
9.Any wage determination and any amendment to a wage determination made in
terms of section 15 of the Wage Act, 1957, in force immediately before the
commencement of this Act remains in force for the period of its operation in terms of
section 18 of that Act, and may be extended or amended as if that Act had not been
repealed.
Exemptions to wage determination
10.Any licence of exemption granted to a wage determination in terms of section 19
of the Wage Act, 1957, in force immediately before the commencement of this Act
remains in force for the period of operation of the determination, or until withdrawn in
terms of section 19(5) of that Act, as if that Act had not been repealed.
Agreements
11 .(1) Any agreement entered into before the commencement of this Act which is
permitted by this Act remains valid and binding.
(2) Any provision in a collective agreement concluded in a bargaining council that
was in force immediately before this Act came into effect remains in effect forÐ
(a)six months after the commencement date of this Act in the case of a provision
contemplated by section 49(1)(a)to(d); and
(b)18 months after the commencement date of this Act in the case of a provision
contemplated by section 49(1)(e).
SCHEDULE FOUR
LAWS REPEALED BY SECTION 95(5)
Number and year of law Short title Extent of repeal
Act No. 5 of 1957 Wage Act, 1957 The whole
Act No. 48 of 1981 Wage Amendment Act, 1981 The whole
Act No. 3 of 1983 Basic Conditions of Employment
Act, 1983The whole
Act No. 26 of 1984 Wage Amendment Act, 1984 The whole
Act No. 27 of 1984 Basic Conditions of Employment
Amendment Act, 1984The whole
Act No. 104 of 1992 Basic Conditions of Employment
Amendment Act, 1992The whole
Act No. 137 of 1993 Basic Conditions of Employment
Amendment Act, 1993The whole
Act No. 147 of 1993 Agricultural Labour Act, 1993 Chapter 2
Act No. 50 of 1994 Agricultural Labour Amendment
Act, 1994Section 2
Act No. 66 of 1995 Labour Relations Act, 1995 Section 196
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