Transcript Basic Conditions of Employment

Basic Conditions of
Employment
- 57 of 1997 (67)
What it does
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Establishes basic terms and conditions
Regulates variation of basic terms
Prohibits child labour
Covers all SA employees – with a few
exceptions e.g. Defence Force, volunteer
workers to charity organisation
Sets minimum standards – parties can
improve on them
Working time (67)
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Minimum standards do not apply to :
– senior management
– Travelling salespersons who regulate their
own time
– Employees working <24 hours per month
– Employees earning > R115 572 pa
Hours cont.
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Ordinary hours [s9]:
– Max 9 hr per day – 5 day week
– Max 8 hours per day – 6 day week
– Sch. 1 of BCEA reflects aim is to reduce working hours to
40 hours, through negotiation
– Security guards – see sectoral determination
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Overtime [s10]
– By agreement only
– Ltd 10 hours per week – 3 hours per day
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Unless collective agreement = 15 hours per week
– [2002] cannot agree to work more than 12 hours per day
– Pay =1.5 x ordinary wage, or paid time off [eg 90 minutes
paid time off for each hour overtime.]
Hours cont
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Can have a compressed working week, and
averaging of hours –see s12 – must reduce
it to writing
Meal intervals – 1 hour after 5 hours, can
reduce to 30min if agreed in writing[– no
recent amendments ]
Work on Sundays/ Public Holidays –double
time, or, if normally works on Sunday, 1.5x
[– no recent amendments]
Hours cont. (69)
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Night work – work between 18h00 and
06h00 [see s17].
Note the code of good practice for arranging
working time
– specific protections built in for these employees,
such as consultation where possible
– Provide transport to and from work
– Concern for health and safety of employees and
family responsibilities
Leave (71)
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Annual – 12 month cycle – 21 consecutive days on
full pay, or,
By agreement, 1day leave for 17 days worked or 1
hour for 17 hours worked
Annual leave to be granted not more than 6 months
after the end of a leave cycle
Employer cannot compel employee to take leave
during notice period
Agree, or, Employer can decide when leave taken
Payment instead of leave =only on termination – se
Leave to be paid before leave period [s21]
leave
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Leave Remuneration [see s35] – amended
July 2003 – includes:
– Basic wage, plus cost to company, eg:
– Value of
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Housing and accommodation allowance
Car allowance
Employers contribution to medical aid, pension
Other benefits received
– Does not include entertainment allowance etc
Leave accrual
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Jardine v Tongaat Hulett [2003]*3 – held
the employer has a duty to ensure
employee takes their annual leave and no
forfeiture if leave not taken:
Cf: Jooste v Kohler Packaging [2003]*3
– Must take annual leave in period to which it
corresponds [differed in that there was a prior
agreement]
– If not, lose right to that leave and cannot claim
payment for accumulated leave outside the cycle
Sick Leave [s22.]
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6 weeks iro 36 month cycle
During 1st 6 months employee entitled
to 1 day sick leave for every 26 days
worked [new Act]
Entitled to full sick leave after working
6 or more months [new Act]
Maternity leave
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4 months – unless agreed, no pay
– Can receive UIF benefits
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Commences in month before birth [old was one
month] – and may not, without Dr’s permission,
work for at least 6 weeks after the birth.
Miscarriages: in last trimester – allowed 6 weeks to
recover
Females to attempt to give 4 weeks notice of
intention to go on leave – state when leaving and
when returning
Pregnancy cont
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Code of Good Practice for pregnant
woman
– No discrimination against pregnant
women
– No harmful work during pregnancy
– Eliminate physical, biological hazards eg
chemicals, vibrations, noise, radiation etc
see P74 handout.
Family responsibility
leave (75)
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3 paid days a year
Birth of child, illness or death of
immediate family [ reasonable proof]
Must be employed +4 days a week,
and at least for 4 months
No accumulation
Contract of employment
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See Annexure ‘F’ –a to p – for s 29 BCEA
requirements of what ‘MUST’ be included
– Does not apply to employees working less than
24 hours per month
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Examples of contracts are on Dept Labour
website
Contracts must be in writing – at start of the
employment relationship
Payment of
Remuneration (76)
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Must be in SA currency
Paid within 7 days after completion of work period
Cash or cheque payments to be in work hours
S33 - and see P76 of handout – sets out
requirements of information to be presented to
employee every pay day –eg –relative period, hours
and overtime hours
Cannot take deductions unless legally authorised or
consent in writing [eg cannot deduct loan..]
Payment of
Remuneration cont
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[2002] intro of s34A
– Employer to pay contributions to
pension,provident, retirement, medical
aid and similar funds within 7 days of
deducting same
– Also employers contribution to be paid in
7 days
Termination of
employment (77)
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Notice: to be in writing: ito 2002
amendment
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1st 6 months – min period is 1 week notice
Thereafter, but within 1st year 2 weeks notice
Thereafter, 4 weeks notice
Domestic and farm workers entitled to 4 weeks
notice after employed for 6 months
Cannot give notice whilst employee on leave
– nor will notice run concurrently
Termination cont
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Calculate severance pay [where termination for
operational requirements or ito S38 Insolvency Act ]
- on same basis as annual leave pay but note:
– Nufaw v Mgijima (2004) held ’remuneration‘ when
calculating severance pay, excludes employers contribution
to provident and medical aid funds
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Min 1 week for each completed year of service
No severance pay if reasonable alternative work
offered
Employee entitled to certificate of service
Variation of Basic Conditions
of Employment (77)
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By agreement can improve on the
minimums
S57 BCEA states that if a matter
regulated by BCEA and a sectoral
determination, the latter prevails [eg.
sectoral determination for Domestic
Workers]