Extracts from the BASIC CONDITIONS OF EMPLOYMENT ACT, 75 of 1997:
Chapter One Definitions, Purpose and Application of this Act 1. Definitions 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: The Regulation of Working Time Chapter Three: Leave Chapter Four: Particulars of Employment and Remuneration Chapter Five: Termination of Employment Chapter Six: Prohibition of Employment of Children and Forced Labour 43. Prohibition of employment of children 44. Employment of children of 15 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 the 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 the Commission 61. Public hearings 62. Report by the 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 the 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. Confidentiality 91. Answers not to be used in criminal prosecutions 92. Obstruction, undue influence and fraud 93. Penalties 94. This Act binds the State 95. Transitional arrangements and amendment and repeal of laws 96. Short title and commencement
Definitions Purpose and Application of this Act
In this Act, unless the context indicates otherwise- "agreement" includes a collective agreement; "area" includes any number of areas, whether or not contiguous; "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 hand (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; 25 "dispute" includes an alleged dispute; "domestic worker" means an employee who performs domestic work in the home of his or her employer and includes- (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" means- (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 35 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; "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; "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 practice 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 practice 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 corresponding 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 specified in the first column of Schedule 2 to that Act, but excluding- (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; "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 persons- (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; "Remuneration" is given a specific meaning in section 35(5). "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.
2. Purpose of this Act
The purpose of this Act is to advance economic development and social justice by fulfilling the primary objects of this Act which are- (a) to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution- (i) by establishing and enforcing basic conditions of employment; and (ii) by regulating the variation of basic of basic conditions of employment; (b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation.
3. Application of this Act
(1) This Act applies to all employees and employers except- (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.
4. Inclusion of provisions in contracts of employment
A basic condition of employment constitutes a term of any contract of employment except to the extent that- (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.
5. This Act not affected by agreements
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: The Regulation of Working Time Chapter Three: Leave Chapter Four: Particulars of Employment and Remuneration Chapter Five: Termination of Employment
CHAPTER SIX PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR
43. Prohibition of employment of children
(1) No person may employ a child- (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. (2) No person may employ a child in employment- (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) commits an offence.
44. Employment of children of 15 years or older.
(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 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) or (2) commits an offence.
45. Medical examinations
The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations of children in employment. (Note 10)
It is an offence to- (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.
47. Evidence of age
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.
48. Prohibition of forced labour
(1) Subject to the Constitution, all forced labour is prohibited. (2) No person may for his or her own benefit or for the benefit 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
49. Variation by agreement
(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 not-
(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) conflict with the provisions of chapter 6. (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 Actor 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 permitting- (a) contract of employment or agreement between an employer and an employee contrary to the provisions of a collective agreement; (b) collective agreement contrary to the provisions of a collective agreement concluded in a bargaining council.
50. Variation by the Minister
(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 of- (a)any category of employees or category of employers; or (b)any employer or employee in respect of whom an application is made by- (i) the employer; (ii) the registered employers' organisation; (iii) the employer and any registered employers' organisation. (2) A determination in terms of subsection (1) (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) must- (a) be made on the advice of the commission; and (b) be issued by a notice in the gazette (4) The minister may request the commission- (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 in consultation with 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 of 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 any registered trade union that represents the employees in respect of whom the determination is to apply. (b) if no consent contemplated in paragraph (a) has been obtained, a determination in terms of subsection(1)(b) may be issued if- (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 trade union, the employer or employers 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)- (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 the Gazette if 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, may amend or withdraw a determination issued in terms of subsection (1). (b) For the purposes of paragraph (a), an affected party is- (i) an employer or employers' 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. (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) must- (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- (i) any registered trade union representing those employees; (ii) any trade union representative representing those employees; and (iii) any employee who requests a copy.
CHAPTER EIGHT SECTORAL DETERMINATIONS
51. Sectoral determination
(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 the provisions of this Chapter and by notice in the Gazette.
(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 include- (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 the Gazette setting 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 either- (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.
53. Conduct of investigation
(1) For the purposes of conducting an investigation in terms of section 52(1) the Director-General may- (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 specified 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. (11)
54. Preparation of report
(1) On completion of an investigation, and after considering any representations made by members of the public, the Director-General must prepare a report. (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 concerned- (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 condition 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 recommendations on what matters which should be included in a sectoral determination for the relevant sector and area.
55. Making of sectoral determination
(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 concerned- (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 employees; (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 provision 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)- (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 section 9 and 17 (3) and (4) or a regulation made in terms of section 13. (7) The Minister may not publish a sectoral determination - (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.
56. Period of operation of sectoral determination
(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) If a collective agreement contemplated by section 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, by notice in the Gazette, may- (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 specific area; or (b) correct or clarify the meaning of any provision of a sectoral determination as previously published. (4) Before publishing a notice of cancellation or suspension in terms of subsection (3)(a) the Minister, by notice in the Gazette, must announce the intention to do so, and allow an opportunity for public comment.
57. Legal effect of sectoral determination
If a matter regulated in this Act is also regulated in terms of a sectoral determination, the provision in the sectoral determination prevails.
58. Employer to keep a copy of sectoral determination
Unless a sectoral determination provides otherwise, every employer on whom the sectoral determination is binding must- (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 determination- (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
59. Establishment and functions of Employment Conditions Commission
(1) The Employment Conditions Commission is hereby established. (2) The functions of the Commission are to advise the Minister- (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. (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.
60. Composition of Commission
(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 un-organised workers, and designate one of them as the chairperson. (2) The Minister must, in addition, appoint two more members to the Commission (a) one of whom must be nominated by the voting members of NEDLAC representing organized labour; (b) one of whom must be nominated by the voting members of NEDLAC representing organized business. (3) The chairperson and members of the Commission- (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 financial interest or any other conflict of interest. (4) The Minister must determine- (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 whenever (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 for- (a) serious misconduct; (b) permanent incapacity; or (c) engaging in any activity that may undermine the integrity of the Commission.
61. Public hearings
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).
62. Report by Commission
(1) The Commission's advice to the Minister must be in the form of a written report. (2) The Commission must, when performing any function in terms of section 59(2)(b) 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 reflected in the report.
CHAPTER TEN Monitoring, enforcement and legal proceedings PART A
Monitoring and enforcement 63. Appointment of labour inspectors
(1) The Minister may- (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 per