Key Provisions of Recent SA Labour Legislation

This document highlights key provisions of the following Acts:

• Constitution of the Republic of South Africa
• Labour Relations Act
• Basic Conditions of Employment Act
• Employment Equity Act

It also discusses the definition of "employee" common to this legislation and indicates how to find more information.

Constitution of the Republic of South Africa (Act 108 of 1996)

• Came into effect 4 February 1997
• Section 23 guarantees the right to fair labour practices.
• Recognises every worker's right to form and join a trade union, to participate in the activities and programmes of a trade union, and to strike.
• Recognises the right of every employer to form and join an employers' organisation and to participate in the activities and programmes of an employers' organisation.
• Guarantees the right of every trade union and every employers' organisation to determine its own administration, programmes and activities; to organise; and to form and join a federation.
• Recognises the right of every trade union, employers' organisation and employer to engage in collective bargaining and requires that national legislation be enacted to regulate collective bargaining.

• Came into effect on 11 November 1996
• Brings labour law into conformity with the Constitution and with international law
• Creates a framework for orderly labour relations
• Recognises and regulates the rights of workers to organise and join trade unions and to strike
• Guarantees trade union representatives right of access to the workplace
• Simplifies trade union registration process and ensures democratic control of unions
• Recognises and regulates the right of employers to resort to lock-out in certain situations
• Facilitates collective bargaining at the workplace and sectoral levels and makes provision for bargaining councils
• Establishes workplace forums to promote employee participation in decision-making
• Establishes the Commission for Conciliation, Mediation, and Arbitration (CCMA) to create simple procedures for the arbitration and resolution of labour disputes
• Establishes the Labour Court and Labour Appeals Court to adjudicate labour disputes, particularly those dealing with violations of fundamental labour rights, the constitutionality of government actions on employment, or the application of laws for which the Minister of Labour is responsible
• Prohibits unfair dismissal
• Defines a dismissal as automatically unfair if it is due to the exercise of labour rights (including participation in or support for a legal strike or protest action), pregnancy, or unfair discrimination (excludes retirement or inherent job requirements)
• Other dismissals can be unfair if the employer cannot prove that dismissal was fair in terms of the employee's conduct or capacity or in terms of operational requirements
• Establishes consultation procedures which must be followed in cases of dismissal based on operational requirements

• Came into effect 1 December 1998
• Extended by regulations under Proclamation No. 112 of 1998
• Applies to all employees and employers except the SANDF, the NIA, the Secret Service, and unpaid volunteers working for charitable organisations.
• Regulates working week:
• No more than 45 ordinary hours
• No more than 10 hours overtime (at at least time-and-a-half)
• Establishes meal intervals and daily and weekly rest periods
• Sets higher rates of pay for work on Sundays and Public Holidays
• Exceptions: Senior management, employees with gross pay in excess of R89 455 per annum, employees who work less than 24 hours a month
• Entitles employees to minimum leave of:
• 21 consecutive days' paid annual leave
• Six weeks' paid sick leave in 36 months
• Four consecutive months' maternity leave
• Three days family responsibility leave for the birth or illness of a child or death of a close family member (grandparent, parent, spouse or life partner, child, grandchild, or sibling)
• Exceptions: Employees who work less than 24 hours a month
• Record-keeping and information:
• Employers must furnish employees with written particulars of employment and keep these up to date
• A summary of the BCEA must be posted in the workplace in the official languages used in the workplace (and, according to regulations, must be on hand in all official languages)
• Employers must keep records on employees' hours and pay and must provide particulars of remuneration with an employee's pay packet
• Exceptions: Employees who work less than 24 hours a month
• Termination of employment:
• One month's notice, in writing, required for employees who have been employed for one year or more (or four weeks or more in the case of domestic or farm workers)
• Retrenched employees are entitled to one week's severance pay for every year worked
• An employee is entitled to a certificate of service on termination
• Exceptions: Employees who work less than 24 hours a month
• Prohibits employment of a child under 15 and restricts employment of children under 18
• Prohibits forced labour
• A collective agreement may pre-empt any of the above conditions except: occupational health and safety protections; minimum annual leave (not less than 14 days), maternity leave and sick leave; and prohibitions on forced and child labour
• With certain exceptions, the Minister of Labour may vary or exclude a condition in respect of an applying employer or employee or a category of employers or employees, provided that the change has the approval of every trade union representing the employees affected (or, if a majority of the employees affected are not represented by a union, that the application and method of opposing it has been brought to the attention of employees)
• In sectors where there is no collective bargaining, the Minister of Labour may make sectoral determinations following an investigation of conditions in that sector and may deem certain categories of persons employees for the purposes of this Act
• Establishes an Employment Conditions Commission to advise the Minister on matters related to the Act
• Provides for the appointment of labour inspectors to investigate complaints
• Requires the Minister to issue codes of good practice on the arrangement of working time and the pre- and ante-natal protec-tion of pregnant mothers and permits the issuing of other codes
• Protects confidential employee information
• Imposes penalties on non-compliance with the Act

• Chapter 2 came into effect 9 August 1999. Chapter 2:
• Prohibits unfair discrimination on one or more of the following grounds: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth [Italicised items in this list are those which have been added to the list of grounds for non-discrimination that appears in section 9(3) of the Constitution.]
• The introduction of affirmative action measures or the exclusion or preference in employment of any person on the basis of an inherent requirement of the job does not constitute unfair discrimination.
• Recognises harassment as a form of unfair discrimination
• Prohibits medical testing except where permitted by law or where justifiable in light of medical facts, employment conditions, social policy, fair distribution of benefits, or the inherent requirements of the job
• Prohibits HIV testing unless explicitly permitted by the Labour Court
• Prohibits psychological testing unless scientifically proven to be valid and reliable, applied fairly to all employees, and not biased against any employee or group
• Chapter 3 will come into effect in December. Chapter 3:
• Requires designated employers (those with more than 50 employees, with total annual turnover greater than that of a small business, or governed by a collective agreement--as well as most organs of state) to:
• conduct a detailed analysis of its employment policies, practices, procedures and working environment to identify employment barriers that adversely affect black people, women, and disabled people ("designated groups")
• prepare an employment equity plan identifying objectives to be achieved (including numerical goals--not quotas--necessary to achieve equitable representation within each occupational category), affirmative action measures to be implemented, a timetable for implementation, and monitoring, evaluation, and dispute resolution procedures
• report biannually to the Director-General of Labour on progress toward the achievement of this plan
• carry out the above in consultation with employees or their designated representatives.
• Requires designated employers to report biannually to the Employment Conditions Commission on remuneration and benefits patterns in each occupational category and, where this reflects disproportionate differentials, to institute corrective measures
• Invites voluntary compliance by employers who are not designated employers
• Chapter 4 establishes a Commission for Employment Equity, made up of NEDLAC members representing business, labour, government, and civil society, to conduct research and to advise the Minister of Labour on codes of good practice, regulations, and other policy matters related to employment equity

The Labour Relations Act, the Basic Conditions of Employment Act, and the Employment Equity Act all define an employee as follows:

employee means--

1. any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and



2. any other person who in any manner assists in carrying on or conducting the business of an employer,

and "employed" and "employment" have meanings corresponding to that of "employee"; [Emphasis added]

Neither employer nor independent contractor are defined in the Acts. However, the Department of Labour says that if a person:

• is supervised,
• does not act independently,
• does not have his or her own tools and equipment,
• works regular and set hours; and
• is paid a fixed wage

For more information

Contact the Department of Labour. (A complete listing of Provincial Offices and regional Labour Centres appears on the back of the Department of Labour publication, "Workers Rights are Human Rights".) See also the documents on the Department's web site.

The following documents are available from the Government Printer:

Basic Conditions of Employment Act Summary Posters

• Required to be posted in the workplace under Section 30 of the BCEA
• R1.32 each (plus R5 postage for up to 10 copies)
• Available in all official languages -- specify language required

• Contains regulations published under the BCEA
• Requires BCEA summaries in all official languages to be available in the workplace
• Contains the summary of the BCEA in all officials languages
• Contains forms for the recording and reporting of information required by the BCEA
• R4.00 each (includes postage)

To order, send a cheque or postal order to:

The Government Printer Private Bag X85 PRETORIA 0001

OR

The Government Printer P.O. Box 571 CAPE TOWN 8000

Be sure to specify what documents you require and include your name and address.