BCEA

STUDY UNIT 4
STUDY OUTCOMES

Know the provisions in the

Explain to whom the
BCEA well enough to solve
provisions in the BCEA will
problems with regards to
be applicable
such provisions
DEFINITIONS
• Go through the definitions in your own time
• Section 1 of the BCEA
Basic Conditions of Employment Act (1)
• Contains basic employment conditions that should be followed by employers and employees alike
• Regulate ex. remuneration, leave, termination of employment contract and the methods of enforcing
such provisions
• Employment conditions can be confirmed by parties – just shouldn’t be less favorable than those in the
act
• Applies to all employers and employees
• Except those excluded from the definition of an employee
• Who is that again?
• See other people excluded (see Basson textbook)
Basic Conditions of Employment Act (2)
• BCEA 75 of 1997 – sets minimum terms and conditions applicable to all employees, as defined
• Automatically forms part of employment contract, so infringes on parties’ freedom to contract
• While BCEA enacted mostly for benefit of employees, some of its provisions are for the benefit of both
parties to the employment contract
• Provisions of BCEA form part of employment contract, UNLESS:
any other law provides more favourable terms to the employee
the basic condition has been replaced, varied or excluded in terms of the BCEA itself
the contractual terms is more favourable to the employee
• Trumps any agreement, whether that agreement entered into before or after commencement of the Act
BCEAs flexibility
• Some conditions may be varied at individual level

• Some conditions may be varied collectively

• Some conditions may be varied by collective agreement in a Bargaining Council

• Minister of Labour may vary conditions in specified instances

• Core rights may not be varied

WORKING HOURS:
Ch 2 of BCEA
Ordinary working hours (s 9)
• No more than 45 ordinary hours per week
 9 hours per day if employee works for 5 days or less
 8 hours per day if employee works for more than 5 days per week.
 More than that = considered as overtime
 Total overtime/week not more than 10hours (unless otherwise agreed in collective agreement)
 Total hours per day – not more than 12hours
 If employee provides service to public, parties may agree to extend working day by 15 minutes, but
extended working time may not exceed 60 minutes per week

• Code of Good Practice on Arrangement of Working Time

• Legal status of CGP? (see s 87 of BCEA)
• Schedule 1 to BCEA: steps that can be taken to gradually decrease working time to 40 hours per week
Working Hours - OVERTIME
• 1 and a half normal salary – except:
• 30 min off at full pay for every hour worked at normal pay; or
• 90 min off if no payment for overtime at all (see the Act)
• Off time in stead of overtime taken within a month after overtime worked – except in case of agreement
• Overtime voluntary – can however lead to offence
• Parties in contract or collective agreement confirm fixed overtime – employer can compel
• Obliged in emergencies
• Dismissal in case of reasonable refusal is unfair
• Averaging - Parties agree that employee will work an average of for ex. 5hours overtime per week for a specified duration
• Compression
 Parties agree to longer working hours per day at normal pay
 Don’t exceed 12hours/day or 45hours/week
 Ex. 3 days a week 12hours a day, other 2 days only 6hours a day
Application of working hours provisions in
Ch 2 of BCEA
Do NOT apply to:
• Senior managerial employees
• Sales staff who travel to see clients and who regulate their own working hours
• Employees who work less than 24 hours per month for an employer
• Those doing emergency work are excluded from certain provisions.
• S 7 does apply to aforementioned employees, so employer must regulate all employees’ working time with due regard
to
 OHS laws
 Health and safety of employees
 Employees’ family responsibilities
 CGP on the Arrangement of Working Time
• Earnings threshold set by Minister of Labour (see s 6(3)): R241 110.59 per annum (as of 01 March 2023) on advice
of Employment Conditions Commission and after public consultations
Night work (s 17)
• After 18h00 and before 06h00 the next day
• Must be per agreement
• Payment of allowance or reduction of working hours (If you work between 18:00 and 06:00 you
must get extra pay (allowance) or be able to work fewer hours for the same amount of money) ; and
• Transportation is provided between employee’s residence and workplace at beginning and
end of shift
• If an employee is required to work between 23h00 and 06h00 the next day on a regular basis,
employer must notify employee of health and safety hazards and that such employee has the
right to undergo a medical examination
WORING HOURS – MEALS and REST BREAKS

• 1 hour lunch for 5 hours work

• Reduced to minimum of 30min
• Dispensed with?
• Rest break of 12 hours from day end to start of new day
• 36 hours rest break per week
• Contract can determine otherwise
SUNDAY and PUBLIC HOLIDAYS
• Double rate or 1 and a half if Sunday is a normal working day for the employee
• employer can give time off equivalent to the difference between normal tariff and required
tariff for Sunday work
• Take time off within a month of relevant Sunday
• Employers can’t require employees to work on public holidays – except in case of agreement
• Employees paid normal tariff on public holidays not worked
• If public holiday falls on a day they normally work – double rates if they have to work in
terms of the agreement
• If public holiday falls on a day they normally don’t work – normal tariff paid + extra
compensation for work done on that day (whichever method used to calculated the amount)
 • Mr P dismissed by SABC from his job as radio production assistant. Dismissal
found to be fair by CCMA and, on review, by LC. Appeal to LAC.
• Night shift not addressed expressly in Mr P’s employment contract, advertisement

Papane v Van Aarde

stated that applicant must be prepared to work shifts and long hours
• Worked night shift for several years before he complained

COURT’S DECISION
• Mr P earned below earning’s threshold, so BCEA applied to him
• No evidence that Mr P’s health affected by working night shift (para 51)
• Not established on record that Mr P was member of trade union that entered into
collective agreement with SABC regarding work at “unsociable hours”, therefore
collective agreement did not apply to him
• S 17(2) of BCEA does not require written agreement
• Mr P had read advertisement for position, had worked for SABC for a long time
before taking up position, so there was “implied agreement” (see para 54) [But see
minority judgment]
• Accepted monetary credits for overtime, worked night shift over a prolonged
period
CHAPTER 3:
LEAVE
Chapter 3: Leave
Not applicable to:
• Persons who work less than 24 hours per month
• Persons who are entitled to more leave than provided for in the
BCEA, unless agreed otherwise
Annual leave
• At least 21 consecutive calendar days for every year worked; or
• By agreement one day for every 17 days worked; or
• By agreement 1 hour for every 17 hours worked
• Paid leave
• Must be taken within 6 months after completion of 12-month leave cycles (one day for every 17 days worked or one
hour for every 17 hours worked).
• Not concurrently with other leave
• Public holidays don’t count
• No pay in lieu of leave, unless it’s upon termination of employment (and then only for last leave cycle)
Sick Leave

• You can take up to 6 weeks' paid sick leave during a 36-month cycle.

• During the first 6 months of starting at a company, you can take 1 day's paid sick leave for
every 26 days you’ve worked.

• An employer may want a medical certificate before paying you when you’re sick for more than
2 days at a time or more than twice in 8 weeks.
Maternity leave
• If you’re pregnant, you can take up to 4 continuous months of maternity leave.
• You can start your maternity leave any time from 4 weeks before the expected date of birth
or on a date a doctor/midwife says is necessary for your health or that of your unborn child.
• You may not work for 6 weeks after the birth of your child unless a doctor or midwife has
advised you to.
• A pregnant or breastfeeding female worker isn’t allowed to perform work that’s dangerous to
her or her child
Paternity leave
• Fathers are entitled to 10 consecutive days unpaid paternity leave. You will have to claim from the
Unemployment Insurance Fund (UIF) for those unpaid days.

• This is applicable to fathers who adopt a child under 2 years old. This leave can be taken from the date that
the adoption order is given or when the child is placed in the care of the adoptive parents.

• The employer should be notified in writing when the leave will be taken unless you’re unable to do so.
Family responsibility leave

If you’re employed full-time for longer than 4 months, you can take 3 days' paid family
responsibility leave per year when your
• child is born
• child is sick
• or for the death of your spouse or life partner, parent, adoptive parent, grandparent, child,
adopted child, grandchild or sibling.
NB! An employer may want reasonable proof of the birth, illness or death for which the leave
was taken.
Parental, adoption and commissioning
parental leave

• Parenting leave
• Adoptive leave
• Commissioning parental leave
• Contractual payment by employer or benefits under the Unemployment
Insurance Act
 CHAPTER 4:

PARTICULARS OF EMPLOYMENT
and REMUNERATION
 Chapter 4: Particulars of Employment and
Remuneration

• Focus on remuneration, in particular deductions

• S 34 of BCEA: Employer may not make deduction UNLESS:
 Employee agrees in writing; OR
 Deduction is required or permitted in terms of (1) a law; (2) a collective
agreement; (3) court order; or (4) arbitration award

• Please note circumstances in which debt may be deducted from employee’s

remuneration
 MINIMUM WAGE

• Minimum wage is the lowest wage that an employer should pay to a worker.

• As from the 1st of January 2019, no worker may be paid below the national
minimum wage which is currently set at R25, 42 an hour (as of 1 March 2023)
Cenge v Dept of Health, EC
• Dept changed remuneration system with retrospective effect
• Had to award backpay because new dispensation increased remuneration
• Dept wanted to deduct scarce skill allowance that employees had received, because that
allowance no longer part of new dispensation
• LaGrange J: Bargaining Council agreement does provide that Allowance not part of
new remuneration structure, but it was silent on mechanics of implementation (para 9)
• BCEA itself, in s 34, does not provide for deduction
• Applicants agreed to deduction, but over twelve months, not six months as Dept had
unilaterally decided
• Employer should have consulted with employees (paras 12-13)
• LaGrange J: Bargaining Council agreement does provide that Allowance not part of
new remuneration structure, but it was silent on mechanics of implementation (para 9)
• BCEA itself, in s 34, does not provide for deduction
• Applicants agreed to deduction, but over twelve months, not six months as Dept had
unilaterally decided
• Employer should have consulted with employees (paras 12-13)
VARIATION OF BCEA
Variation of BCEA
1. By collective agreement in bargaining council
• NOT i.r.o
• Protections to employees in ordinary working hours provisions
• Determination of working hours by Minister of Labour to protect H&S of certain workers
• Protections to employees in night work provisions
• Annual leave may not be reduced to less than 2 weeks; no reduction of maternity or sick leave
2. By collective agreement outside bargaining council
E.g. overtime per week may be increased from 10 hours to 15 hours for 2 months

3. Agreement between employer and employee

4. Ministerial or sectoral determination

TERMINATION OF
EMPLOYMENT
 TERMINATION OF EMPLOYMENT (1)
Notice
• You or your employer must give notice to end an employment contract of not less than:
 1 week, if employed for 6 months or less.
 2 weeks, if employed for more than 6 months but not more than one year.
 4 weeks, if employed for 1 year or more.
 The notice must be in writing, except for a worker who can’t write. If you can’t write, you can give verbal notice.
• Notice must be written and personally communicated
• Employees accommodated on premises of employer?
• Employee can dispute fairness of termination
• Termination can occur without notice if material breach
• Employees must work notice period – except if employer exempts them from this obligation: pay him for the notice period he would have worked
• Employee terminates contract – also written notice
• If employer accepts employee’s notice – employee can’t revoke it
• “heat of the moment”?
• Notice must be clear and unconditional
• Same notice period as that required of employer
TERMINATION OF EMPLOYMENT (2)

Severance pay
• An employer must pay you if you’re dismissed due to retrenchment or restructuring, at least 1
week's severance pay for every year of continuous service.
• You’re not entitled to severance pay if you unreasonably refuse other employment with the same
employer or with another employer.

Certificate of service
• You must be given a certificate of service when you leave a job
• BCEA determine that certificate of service will only be issued at termination of service
• Name 3 aspects that features in such certificate
MONITORING AND
ENFORCEMENT
Monitoring and enforcement

• Summary of Act must be displayed at workplaces (s 30)

• Labour inspectors may advise employers of their rights and obligations, conduct inspections,
investigate complaints without notice or warrant at any reasonable time

• May issue compliance orders

• LC has exclusive jurisdiction on BCEA matters, subject to Constitution and jurisdiction of

LAC

• Concurrent jurisdiction with High Courts on matters relating to contracts of employment

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.
NEXT LECTURE

Study Unit 5 (Dismissals)

Prepare by reading study unit
5.1 and 5.2