NEW LAW

Basic Conditions of Employment Act, 1997

The Basic Conditions of Employment Act was passed earlier this year. However; promulgation was delayed because small business complained that it would be seriously affected by the new law.

The Basic (conditions of Employment Act is now expected to come into effect from December 1 this year. The following is a summary of the most important sections of the Basic Conditions of Employment Act, 1997. If you want to find out more detail about any section, get a copy of the Act and go to the section that you are interested in.

As Shopsteward went to print, small business was arguing that this new law should not apply to employers who employ less than a certain number of workers. Watch the press for details.

Take special note of the Variations" sections - sections 49 - 50. This is likely to cause workers most headaches. It is the clause that allows certain conditions to he \varied downwards by agreement.

All employees and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for charities.

This Act sets down the minimum conditions that apply. In other words if your agreement (a company agreement or a Bargaining Council agreement) with your employer sets down conditions that are worse than this Act, then this Act must apply and not your Agreement.

But if your agreement has better conditions than this Act, then your agreement will apply.

This chapter does not apply' to senior managerial employees, traveling salespersons and those who work less than 24 hours a month.

Ordinary hours of work: Section 9

1. 45 hours in any week;
2. nine hours a day for a 5 day week (or fewer days)
3. eight hours a day for a more than 5 day week

An employer may not require or permit an employee

1. to work overtime except by agreement;
2. to work more than
   1. three hours' overtime a day; or
   2. ten hours' overtime a week.

Overtime must be paid at 1,5 times the employee's normal wage or an employee may agree to receive paid time off - 90 minutes paid time off for every hour of overtime; or a worker's ordinary hourly rate for each hour of overtime plus 30 minutes paid time off for each hour worked.

You can agree in writing to work up to 12 hours in a day without receiving overtime pay. But if you do, you cannot work

1. more than 45 ordinary hours in any week;
2. more than ten hours' overtime in any week; or
3. more than five days in any week.

A collective agreement may permit the hours of work to be averaged over a period of up to four months.

An employee who is bound by a collective agreement may not work more than

1. an average of 45 ordinary hours in a week over the agreed period;
2. an average of five hours' over-time in a week over the agreed period.

An employee must have a meal interval of 60 minutes after five hours work.

A written agreement may

1. reduce the meal interval to 30 minutes;
2. scrap the meal interval if less than six hours a day of work.

An employee must have a daily rest period of 12 consecutive hours. BUT a written agreement can reduce the daily rest period to 10 hours:

• if the worker lives on the premises and
• if her / his meal break lasts for 3 hours.

An employee must have a weekly rest period of 36 consecutive hours which, unless otherwise agreed, must include Sunday. BUT, a written agreement can:

• reduce this to 60 consecutive hours every 2 weeks OR
• reduce this by up to 8 hours in any week as long as the rest period the next week is extended by 8 hours.

An employee who occasionally works on a Sunday must receive double pay.

An employee who ordinarily works on a Sunday must be paid at 1.5 times the normal wage.

Paid time off in return for working on a Sunday may be agreed upon.

Night work: Section 17

Employees who work at night between 18h00 and 06h00 must be compensated by payment of an allowance or by a reduction of working hours and transport must be available.

Employees who work regularly after 23:00 and before 06:00 the next day must be informed of

1. any health and safety hazards; and
2. the right to undergo a medical examination.

It is a criminal offence to employ a child under 15 years of age.

Children under 18 may not be employed to do work inappropriate for their age or that places them at risk.

Forced labour is a criminal offence.

Employees must be paid for any public holiday that falls on a working day.

Work on a public holiday is by agreement and paid at double the rate.

A public holiday is exchangeable by agreement.

Does not apply to an employee who works less than 24 hours a month and if the agreement gives you more than the Act.

21 consecutive days' annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.

Leave must be granted not later than six months after the end of the leave cycle (i e 12 months).

An employer must not pay an employee instead of granting leave except on termination of employment.

Public holidays do not count as leave.

Six weeks' paid sick leave in a period of 36 months.

During the first six months an employee is entitled to one day's ~ sick leave for every 26 days worked.

An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.

Four consecutive months' maternity leave. A pregnant employee or employee nursing her child is not allowed to perform work that is hazardous to her or her child.

Full time employees

• three days paid family responsibility leave per year
• an employer may require reasonable proof.

This chapter does not apply to an employee who works less than 24 hours a month for an employer.

These sections spell out what the employer must do for the worker:

• give a worker the details of the contract when s/he starts a new job
• the employer cannot make unlawful deductions from a worker's pay unless s/he agrees
• display workers' rights in the workplace
• keep records of each worker
• give workers pay slips with full details showing normal rate of pay, overtime, deductions etc.

A collective agreement concluded by a bargaining council may replace or exclude any basic condition of employment "if the collective agreement is consistent with the purpose of this Act". But it cannot:

1. reduce the protection given in (S.7, 9 and 13);
2. reduce the health and safety checks on employees who perform night work (S. 17(3) and (4);
3. reduce annual leave to less than two weeks (S. 20);
4. reduce entitlement to maternity leave (S 25);
5. reduce entitlement to sick leave to the extent permitted (S. 22-24); and
6. conflict with provisions on child labour.

Collective agreements and individual agreements may only replace or exclude basic conditions of employment "to the extent permitted by the Act or a sectoral determination (S.49)."

The Minister of Labour may make a determination to replace or exclude a basic condition of employment.

This can also be done on application by an employer or employer organisation (S. 50).

A determination may not be granted unless a trade union representing the employees has consented to the variation or has had the opportunity to make representations to the Minister.

A copy of any determination must be displayed by the employer at the work place and must be made available to employees (S.50).

This chapter does not apply to an employee who works less than 24 hours in ~ month for an employer.

A contract of employment may be terminated only on notice of not less than

1. one week, if employed for four weeks or less;
2. two weeks, if employed for more than four weeks but not more than one year;
3. four weeks, if employed for one year or more, or is a farm worker or a domestic worker who has been employed for more than four weeks.

Notice must be given in writing except when it is given by an illiterate employee.

The notice on termination of employment by an employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal in terms of the Labour Relations Act, 1995 or any other law.

An employee, dismissed for operational requirements is entitled to one week's severance pay for every year of service.