The Basic Conditions of Employment Act
South African workers and employers enjoy many rights, thanks to the Basic Conditions of Employment Act. From leave days to the termination of your employment and more, here’s all you need to know about this Act.
Who does the Act apply to?
The Act applies to all workers and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for charities.
This Act overrides any agreement or contract you may have signed with your employer or worker and it is important that you take note of the following key points.
It is a crime to:
- Try to prevent, block or influence a labour inspector or any other person obeying this Act.
- Get or try to get a document by stealing, lying or showing a false or forged document.
- Pretend to be a labour inspector or any other person obeying this Act.
- Refuse or fail to answer questions from a labour inspector or any other person obeying this Act.
- Refuse or fail to obey a labour inspector or any other person obeying this Act.
There are a few sections within this act that you may find useful. We'll start with working hours.
This section does not apply to senior managers (those who can hire, discipline and dismiss workers), sales staff who travel and workers who work less than 24 hours a month.
Ordinary Hours of Work
A worker must not work more than:
- 45 hours in any week.
- Nine hours a day if a worker works five days or less a week.
- Eight hours a day if a worker works more than five days a week.
- If overtime is needed, workers must agree to it and they may not work for more than three hours overtime a day or 10hours overtime a week.
- Overtime must be paid at one-and-a-half times the workers' normal pay. The employer and the worker may also agree to paid time off instead of extra pay.
- More flexible working time can be negotiated if there is a collective agreement with a registered trade union. For example, this can allow more flexible hours for working mothers and migrant workers.
- Compressed work week: You may agree to work up to 12 hours in a day and work fewer days in a week. This can help working mothers and migrant workers by having a longer weekend.
- Averaging: A collective agreement may allow working hours to be averaged over a period of up to four months. A worker who has agreed to this cannot work more than an average of 45 ordinary hours a week and an average of five hours of overtime a week over the agreed period. A collective agreement for averaging has to be re-negotiated each year.
Meal Breaks and Rest Periods
- A worker must have a meal break of 60 minutes after five hours' work. But a written agreement may lower this to 30 minutes and do away with the meal break if the worker works less than six hours a day.
- A worker must have a daily rest period of 12 continuous hours and a weekly rest period of 36 continuous hours, which, unless otherwise agreed, must include Sunday.
- A worker who sometimes works on a Sunday must get double pay. A worker who normally works on a Sunday must be paid one-and-a-half times the normal wage. There may be an agreement for paid time off instead of overtime pay.
- Night work is unhealthy and can lead to accidents. That is, workers working between 18:00 and 06:00 must get extra pay or be able to work fewer hours for the same amount of money.
- Transport must be available but not necessarily provided by the employer.
- Workers who usually work between 23:00 and 06:00 must be told of the health and safety risks. They are entitled to regular medical check-ups, paid for by the employer. They must be moved to a day shift if night work develops into a health problem. All medical examinations must be kept confidential.
Workers must be paid if they work on a public holiday and they are only allowed to work if they have agreed to. Workers can either get paid double their normal wage or negotiate time off work.
A worker can take up to 21 continuous days' annual leave or, by agreement, one day for every 17 days worked or one hour for every 17 hours worked.
Leave must be taken by no later than six months after the end of the leave cycle and the worker can only get paid for any leave outstanding when they leave the job.
- A worker can take up to six weeks' paid sick leave during a 36-month cycle.
- During the first six months, a worker can take one day's paid sick leave for every 26 days worked.
- An employer may want a medical certificate before paying a worker who is sick for more than two days at a time or more than twice in eight weeks.
- A pregnant worker can take up to four continuous months of maternity leave.
- She can start leave any time from four weeks before the expected date of birth or on a date a doctor or midwife says is necessary for her health or that of her unborn child.
- She also may not work for six weeks after the birth of her child unless a doctor or midwife has advised her to.
- A pregnant or breastfeeding female worker is not allowed to perform work that is dangerous to her or her child.
Family Responsibility Leave
Full-time workers employed longer than four months can take three days' paid family responsibility leave per year on request when the worker's child is born or sick or for the death of the worker's spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
An employer may want proof that this leave was needed.
Jobs Payment and Information
Employers must give new workers information about their job and working conditions in writing. This includes all the terms of conditions of employment and a list of any other related documents.
Mimimum wage is the lowest wage that an employer should pay to a worker. Your minimum wage is determined by the sector you work in. To determine your mimimum wage, click here.
Employers must keep a record of at least:
- The worker's name and job.
- Time worked
- Money paid
- Date of birth for workers under 18 years old.
An employer must pay a worker:
- In South African money.
- Daily, weekly, every two weeks or monthly.
- In cash, cheque or direct deposit.
- With a payslip.
Each payslip must include:
- The employer's name and address.
- The worker's name and job.
- The period of payment.
- The worker's pay.
- The amount and purpose of any deduction made from the pay.
- The actual amount paid to the worker.
The payslip must also include:
- Ordinary pay rate and overtime pay rate.
- Number of ordinary and overtime hours worked during that period of payment.
- Number of hours worked on a Sunday or public holiday during that period.
- Total number of ordinary and overtime hours worked in the period of averaging, if there is an averaging agreement.
An employer may not deduct any money from a worker's pay unless:
- That worker agrees in writing.
- The deduction is required by law or permitted in terms of a law, collective agreement, court order or arbitration award.
Termination of Employment
A worker or employer must give notice to end an employment contract of not less than:
- One week, if employed for six months or less.
- Two weeks, if employed for more than six months but not more than one year.
- Four weeks, if employed for one year or more.
- Notice must be in writing, except from a worker who cannot write. If a worker cannot write, a worker can give verbal notice.
Workers living in premises owned by the employer must be given one month's notice to leave or be given another place to live until the contract is lawfully ended.
Even if a worker is given notice to leave the premises where they are living, they can still challenge the dismissal using the Labour Relations Act or any other law.
An employer must pay a worker who is dismissed due to retrenchment or restructuring at least one week's severance pay for every year of continuous service.
Certificate of Service
A worker must be given a certificate of service when they leave a job.
Child Labour and Forced Labour
- It is against the law to employ a child under 15 years old.
- Children under 18 may not do dangerous work or work meant for an adult.
- It is against the law to force someone to work.
Variations of Basic Conditions of Employment
A collective agreement concluded by a bargaining council can be different from this law. It however must not:
- Negatively affect workers’ health and safety, and family responsibilities.
- Lower annual leave to less than two weeks.
- Lower maternity leave in any way.
- Lower sick leave in any way.
- Lower the protection of night workers.
- Allow for any child labour or forced labour.
Collective agreements and individual agreements must follow the Act.
The Minister of Labour may decide to vary or exclude a basic condition of employment. Employers or employer organisations can also apply to do this.
Special rules that still abide by this Act can be made for specific sectors to establish basic conditions for workers in a sector and area.
Employment Conditions Commission
This Act allows the Employment Conditions Commission to advise the Minister of Labour, Monitoring, Enforcement and Legal Proceedings.
Inspectors play an important role in implementing this law. They need to do the following:
- Advise workers and employers on their labour rights and obligations.
- Inspect, investigate complaints, question people and inspect, copy and remove records.
- Serve a compliance order by writing to the Director-General of the Department of Labour, who will then look at the facts and agree, change or cancel the order.
Where to Get Help
If you need to make a complaint or have a question, contact the provincial Department of Labour office on 021 441 8000.