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CONTENTS
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
SCHEDULES
EXTRACTS
Chapter One
Definitions Purpose and Application of
this Act
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1.
Definitions
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
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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)
46. Prohibitions
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.
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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
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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.
52. Investigation
(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.
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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
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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
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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 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
certificate in the prescribed form stating-
(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.
64. Functions of labour inspectors
(1) A labour inspector appointed under section 63(1) may
promote, monitor and enforce compliance with an employment law by-
(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,
financial or similar interest.
65. Powers of entry
(I) In order to monitor and enforce compliance with an
employment law, a labour inspector may, without warrant or notice, at
any reasonable time, enter
(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) only-
(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 the 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 notified that the labour inspector is present
at a workplace and of the reason for the inspection.
66. Powers to question and inspect
(1) In order to monitor or enforce compliance with an employment
law, a labour inspector may-
(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 specified
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 must-
(a) produce on request the certificate 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) returning 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.
67. Co-operation with labour inspectors
(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.
(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.
68. Securing an undertaking
(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 inspector
(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).
69. Compliance order
(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 out-
(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 fine 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.
70. Limitations
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 if
(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.
71. Objections to compliance order
(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-General-
(a) may confirm, 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 confirmed or
modified. .
(4) The information that the Director-General must consider includes;
(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.
(6) If the Director-General confirms or modifies the order or any
part of the order, the employer must comply with that order within the
time period specified in that order.
72. Appeals from order of Director-General
(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 final 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.
73. Order may be made order of Labour Court
(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)© 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.
PART B
Legal proceedings
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74. Consolidation of proceedings
(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
if
(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).
75. Payment of interest
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.
76. Proof of compliance
(1) In any proceedings concerning a contravention of this Act or
any sectoral determination it is for an employer-
(a) to prove that a record maintained by or for that
employer is valid and accurate;
(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.
77. Jurisdiction of Labour Court
(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 specified 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.
PART C
Protection of employees against discrimination
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78. Rights of employees
(1) Every employee has the right to-
(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.
79. Protection of rights
(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
anticipated-
(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.
80. Procedure for disputes.
(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 to-
(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.
81 Burden of proof
In any proceeding in terms of this Part-
(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.
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CHAPTER ELEVEN
General
82. Temporary employment services
(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.
83. Deeming of persons as employees
(1) The Minister may, on the advice of the Commission and by
notice in the Gazette, deem any category of persons specified 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 must
(a) publish a draft of the proposed notice in the
Gazette; and
(b) invite interested persons to submit written
representations on the proposed notice within a reasonable period.
84. Duration of employment
(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.
85. Delegation
(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 time-
(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).
86. Regulations
(1) The Minister may by notice in the Gazette, 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.
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87. Codes of Good Practice
(1) The Minister, after consulting NEDLAC-
(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 the Gazette.
(3) Any person interpreting or applying this Act must take into
account relevant codes of good practice.
88. Ministers power to add and change footnotes
The Minister may, by notice in the Gazette,
add to,
change or replace any footnote in this Act.
89. Representation of employees or employers
(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.
90. Confidentiality
(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
financial or business affairs of any other person, except if the
information is disclosed in compliance with the provisions of any
law
(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 confidential and may be made available only-
(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.
91. Answers not to be used in criminal prosecutions
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.
92. Obstruction, undue influence and fraud
It is an offence to -
(a) obstruct or attempt to influence 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.
93. Penalties
(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 first column of the table below may be sentenced to a
fine or imprisonment for a period not longer than the period mentioned
in the second column of that table opposite the number of that
section.
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OFFENCES AND PENALTIES
94..This Act binds the State
This Act binds the State except in so far as criminal liability
is concerned.
95. Transitional arrangements and amendment and repeal of laws
(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 effect-
(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 the Gazette.
(4) Section 186 of the Labour Relations Act, 1995 , is hereby
amended by the deletion of subparagraph (ii) of paragraph ©.
(5) The laws mentioned in the first 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.
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96. Short title and commencement
This is the Basic Conditions of Employment Act, 1997, and comes
into effect on a date to be fixed by the President by proclamation in
the Gazette.
SCHEDULES
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