LABOUR LAW

Introduction

This chapter covers laws in South Africa which directly affect the working conditions of workers, for example, the Basic Conditions of Employment Act, Bargaining Council Agreements, Wage Determinations, and so on.

We focus on the following laws that affect employers and employees.

Laws about terms and conditions of employment:
Basic Conditions of Employment Act No 75 of 1997 (BCEA)
Occupational Health and Safety Act No 85 of 1993

Disputes and ways of settling disputes:
Labour Relations Act No 66 of 1995 (LRA)
Employment Equity Act No 55 of 1998

Worker social welfare and benefits
Unemployment Insurance Contributions Act No 63 of 2001
Compensation for Occupational Injuries and Diseases Act No 130of 1993 (COIDA)
Skills Development Act No of 1998
Skills Development Levies Act No of 1999
Medical Schemes Act No 131 of 1998

The chapter looks at disputes and ways of settling disputes in terms of the Labour Relations Act, for example, how to approach a problem of unfair dismissal, using conciliation and arbitration to sort out a problem, and so on.

Finally, the chapter also looks at worker social welfare and benefits, for example, medical schemes, pension and provident funds, unemployment insurance benefits, and so on.
We also include some information on the Skills Development Act and on unions, how they are formed and why they are important.

The intention of the manual is to put paralegal advice workers and other users of the manual in a position to help workers make use of the rights that they do have under these laws and also to make it clear where the law limits workers' rights.

Remember
This chapter was written and published in May 2002. So any changes to the laws in this in this chapter change after this date will not be reflected in the text. We do however try and draw your attention to areas where there may possibly be changes to the law, for example, where parliament is still debating a bill. We will also do an update to the laws and information in this chapter every year.

The contract of employment

A contract of employment must comply with terms and conditions of employment in the Basic Conditions of Employment Act (BCEA) or collective agreement or sectoral determination (depending on which the worker is covered by), and any other laws which protect workers such as the Labour Relations Act and the Occupational Health and Safety Act. If a contract breaks any of these protective laws, it is not enforcable.

If a worker is covered by the BCEA, terms and conditions of employment in the BCEA override those in any contract of employment which are less favourable to the worker than those in the BCEA.

The contract between worker and employer

If you say you will do something for another person, and in return that person agrees to pay you something, then you and that person have made a contract.

If you agree to work for someone, and that person agrees to pay you for this work, then you and the employer have a contract of employment.

If you work for another person you are called the employee or worker. The person who gives you the work, and pays you for the work, is called the employer or boss.

The type of work that you must do, hours of work, wages, a place to live, and so on can all be part of your agreement with your employer. These are called conditions of employment. They are express terms of the contract.

Even if you and the employer did not talk about some conditions of employment, for example, taking annual leave, and it is the custom that all workers take annual leave, then you can also take annual leave. This is part of your contract, even if you did not talk about it. These are implied terms of the contract.

The law says that a contract does not have to be in writing. If two people speak and they agree about the contract, then this contract is called a verbal contract. A verbal contract is also legal.

A written contract is better. If all the conditions of the contract are written on a piece of paper, and the employer signs the paper, then you have proof of what was agreed.

Section 29 of the Basic Conditions of Employment Act says that except for employees working less than 24 hours per month, domestic workers and employers who employ less than 5 people, before the job starts the employer must give the worker written particulars about the job, including:

• a description of the job
• the hours that the worker will be expected to work
• ordinary and overtime rates of payment, including payment in kind and its value
• any deductions to be made
• how much leave the worker will get
• the notice period

This document is like a contract of employment, but the worker doesn't have to sign it. If a worker can't read, the particulars must be explained in a language the worker understands.

If you have a contract, but you do not do the thing that was agreed, then you break the contract. The law says that if one person breaks a contract, then the other person can use the law to force that person to do what was agreed. Breaking a contract is also called a breach of contract.

How can a contract of employment be used?

If the employer breaks a contract of employment, then a worker can sue the employer in a civil court case for breach of contract. It is easier to prove that an employer broke a contract of employment if the contract is in writing. If the contract is verbal, it is always better to have witnesses. If you don't have witnesses, then it is the worker's word against the employer's word.

The worker is always entitled to at least the terms and conditions in the Basic Conditions of Employment Act (BCEA). If the breach of contract goes against a term or condition in the BCEA then a worker can go to the Department of Labour and lay a complaint. The Department will issue a Compliance Order which tells the employer to comply with the BCEA. This is a much easier and cheaper way to deal with problems that fall under the BCEA.

Changing the contract

An employer can change the contract even if the worker does not agree to the changes. But a change in a contract is like a new contract. To change the contract, the employer must give notice of the change to the worker and must negotiate the new terms and conditions with the worker.

If the employer and worker/s cannot agree about the changes in the contract, then the employer may just implement the changes. If the worker then just accepts the new conditions and goes on working, then the new conditions become part of the contract. If the worker does not agree to the changes, then he or she can:

• refuse to accept the changes. If the employer then dismisses the worker it is an automatically unfair dismissal.
• he or she can choose to stop working for the employer. If the worker was forced to resign rather than be forced to accept the changes, it may be an automatically unfair dismissal.

Types of contracts

There are two types of contracts: indefinite and fixed-term contracts.

Indefinite contracts

Most employment contracts are indefinite contracts.

This means that when a worker starts working for the employer, no-one knows when the contract will end.

An indefinite contract can only be ended in the following ways:

• by dismissal
• by cancellation of the contract by the worker or the organisation.

Fixed-term contracts

If the worker and the employer both agree at the start of the contract when that contract is going to end, then it is a fixed-term contract.

Contract workers and seasonal workers are two kinds of workers with fixed-term contracts.

It often happens, particularly on the farms, that the employer goes to other areas to get people to work on the farm on a temporary basis. The workers then leave their homes and go to work on this farm. These workers may be referred to as contract workers.

Usually the farmer and these workers have a fixed term contract for a specified time. The contract is usually made before the worker gets to the farm. If a worker has a contract with the farmer, then the conditions of that contract are the conditions of employment.

Some farms have times when extra workers are needed. These times are called seasons. If a worker only works on the farm for a season, then he or she is called a seasonal worker. The seasonal worker knows when the contract starts and when the contract ends.

For both contract workers and seasonal workers, the employer must pay workers for the full contract time, even if there is no more work for the workers to do. If a worker's contract is for one year, then the employer must pay the worker for the full year, unless the contract ends because of the worker's fault. If the contract is for one season, then the employer must pay the worker for the whole season.

Differential wage

If the employer tells a worker to do someone else's job in a higher category of pay than the worker's own job, then the worker deserves to get the higher wage. ("Equal pay for work of equal value’). An employer can ask a worker to do work below his or her own pay category, but the worker should not get paid less than his or her own wage.

The BCEA doesn't have a rule about differential wages. But if an employer refused to pay the higher wage, the worker could take a dispute about an unfair labour practice to the Commission for Conciliation, Mediation and Arbitration.

Bonus pay

'Bonus pay' means money paid to workers which is over and above their wages and overtime money. The law does not say that an employer must pay a bonus to workers. This is 'extra' money. It is usually paid out at the end of the year, for example, for good performance during the year, or for targets reached in production of goods.

Bonus pay must be paid in these cases:

• if an employer gave a bonus to the workers at the end of every year in the past
  The employer created an 'expectation' in the workers that they will get a bonus every year. And it has become the custom to get the bonus. The workers then have a right to demand the same bonus every year. If the employer suddenly decides not to give a bonus, the workers can claim the bonus as a common law right.
• if it says in a contract of employment that the worker will get a bonus
  Then the employer must pay the bonus as agreed (unless it depends on the worker doing something which the worker did not do). For example, if a contract of employment says that an employer must pay a 13th cheque to a worker then the employer must pay this.

Long Service Awards

The law does not say that employers must pay long service money to workers who worked for a long time for the same company. If the worker retires, it is up to the employer to decide whether to give any long service money to the worker.

Job References

A job reference letter is a letter from an old employer saying whether the employer thought the worker was a good worker or not. Often when a worker approaches a new employer for a job, the new employer will telephone the old employer for a job reference before employing the worker.

The Basic Conditions of Employment Act (BCEA) says workers are entitled to a written certificate of service when the worker stops working for that employer. The certificate of service sets out the full name of the employer and the worker, the job/s that the worker was doing, the date that the worker began working and the date that the worker ended work, and the wage at the time that the job ended, including payment in kind.

Laws about terms and conditions of employment

There are different laws about conditions of employment. Workers' terms and conditions of employment may be covered by:

• centralised collective agreements, like Bargaining Council Agreements, under the Labour Relations Act
• sectoral determinations under the Basic Conditions of Employment Act (BCEA), or Wage Determinations under the Wage Act
• special exceptions to centralised collective agreements, sectoral determinations, or the BCEA, made by the Minister of Labour (called deregulation)
• workplace-based collective agreements under the BCEA
• an individual agreement between a worker and employer (the contract of employment)
• Basic Conditions of Employment Act

In the past, farmworkers and domestic workers were not protected by these laws. Now the Labour Relations Act and BCEA includes farmworkers and domestic workers. They have the same labour rights as all other workers, except for some special conditions.

The Merchant Shipping Act covers conditions of employment for workers who are at sea within South Africa's territorial waters.

Members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service are covered by different laws.

The Occupational Health and Safety Act gives workers rights in health and safety at work.

How do you know which law applies to a worker?

All workers will fall under one of the above laws about conditions of employment. Many workers fall under more than one of these laws.

The laws work in order of priority. For example, if a Bargaining Council Agreement (or other centralised collective agreement) covers the work done by a worker, then that Agreement applies to that worker. If there is no Bargaining Council Agreement, then you must see whether a sectoral determination or Wage Determination applies. If no Bargaining Council Agreement or sectoral/Wage Determination applies, then the BCEA will apply.

The BCEA applies to all workers unless they are specifically excluded by the Act. Workers excluded by the BCEA are members of the South African National Defence Force and the intelligence or secret services, and some other categories of workers.

The BCEA allows for workers to be bound by an individual or collective agreement with the employer. For example, the worker's contract of employment may contain conditions of employment that vary from the BCEA. Or workers may have entered into an agreement with the employer to work a compressed working week or to average out their working hours.

Finding out a worker's terms & conditions of employment

An individual contract of employment may override the Basic Conditions of Employment Act provided it is definitely more advantageous for the employee and provided it does not affect certain ‘core’ rights.

Basic Conditions of Employment Act No. 75 (1997)

The Basic Conditions of Employment Act (BCEA) was adopted by Parliament in 1997, and implemented in 1998.

Who is covered by the BCEA?

All employees are covered by the BCEA, except:

• members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service
• unpaid voluntary workers who do work for a charitable organisation
• workers who work for an employer for less than 24 hours a month
• workers on vessels at sea where the Merchant Shipping Act of 1951 is applicable
• Certain special provisions apply to companies employing fewer than ten employees.

• Farmworkers: Farmworkers are covered by the BCEA, except for specific sections of the Act that exclude farmworkers until new regulations are passed.

• Domestic workers: Domestic workers are covered by the BCEA.
• Part-time, casual and temporary workers:

• A part-time worker is permanently employed, but only works part of a working day.
• A casual worker is permanently employed, but only works part of a working week. An employee who works more than 24 hours during any month is now fully covered by the provisions of the BCEA including provisions for leave and sick pay, overtime and public holiday rates.
• A temporary worker is not permanently employed, but only works for a specific length of time or until a specific job is completed.

The new BCEA gives more protection to these workers. In most cases, part-time (or casual) and temporary employees will be entitled to the same benefits as other workers, but on a pro rata basis. They are excluded from some provisions, for example they are not entitled to family responsibility leave.

If a person is earning a gross salary of more than R115 572 per year (R9631 per month) then the following sections of the BCEA will not apply to them:

• section 9: ordinary hours of work
• section 10: overtime
• ection 11: Compressed working week
• section 12: Averaging of hours of work
• section 14: meal intervals
• section 15: daily and weekly rest period
• section 16: pay for work on Sundays
• section 17: night work
• section 18(3): Public holidays (where an employee may work on a public holiday on which he/she would not have ordinarily worked)

Reference: See Summary of BCEA conditions of employment

• Piece work: Piece work means that a worker is not paid for the hours that he or she works. The worker is paid for the number of items produced. Seasonal farmworkers may be paid on a piece work basis, for the amount of fruit they pick. The BCEA says nothing about wages and conditions of employment for piece work, because piece workers are not employees. Farmworker piece workers may be covered by a sectoral determination for agriculture in the future. 
• Freelance or out-sourcing: An employer may pay someone who works from a different place to do work. This person is not an employee, but is running their own small business. So the person is not covered by the BCEA. The employer is buying things or services from the person. (This is like a form of piece work.)

For example, Sakumsi cuts patterns for dresses. He pays Trevor to sew the pieces together. Trevor works from his house. Trevor is not employed by Sakumsi, and Saksumi does not have to make sure that Trevor's pay and working conditions are according to the BCEA.

Variation of basic conditions

Certain rights in the BCEA are fundamental and will not be able to be varied (for example, the prohibition on child labour).

In a collective agreement, for example a Bargaining Council Agreements, workers may agree to conditions that are worse for them than the BCEA conditions, as long as the agreement is consistent with the purpose of the BCEA and does not give them less protection than they had under the BCEA, nor reduce a worker’s annual leave (to less than 2 weeks), maternity leave or sick leave.

Workers may be covered by the BCEA, but have terms and conditions of employment which vary from those in the BCEA. The BCEA allows for the following ways of varying basic conditions of employment:

• the individual employment contract between a worker and employer (although the scope for variation by this method is extremely limited)
• collective bargaining
• sectoral determinations
• the Minister of Labour can make special exceptions

So a worker who is covered by the BCEA has the conditions of employment as specified in the Act, unless:

• the worker has an individual agreement (employment contract) with the employer
• the worker is part of a collective agreement with the employer
• there is a sectoral determination (like a Wage Determination) or a Ministerial exemption, which overrides the conditions in the BCEA.

Individual contract of employment

The contract may have different conditions to those in the BCEA, as long as they are more favourable to the worker than the BCEA. The BCEA sets out the minimum conditions of employment. Any contract of employment must at least comply with all the provisions of the BCEA. If a contract breaks any part of the BCEA, (and a variation order has not been obtained from the Department of Labour) , it is not enforceable and the BCEA conditions override the conditions in the contract.

Collective bargaining

The BCEA aims to promote collective bargaining, and therefore allows variation of certain specified conditions through collective bargaining between an employer and workers who work for that employer. They can reach a collective agreement.

A collective agreement under the BCEA may have different conditions to those in the BCEA, as long as they are more favourable to the worker than the BCEA. The BCEA sets out the minimum conditions of employment. Any agreement must at least comply with all the provisions of the BCEA. If an agreement breaks any part of the BCEA, it is not enforcable and the BCEA conditions override the conditions in the agreement.

There are also centralised agreements (Bargaining Council Agreements) under the Labour Relations Act. In centralised collective bargaining , workers may agree to conditions that are worse for them than the BCEA conditions. This may be because in exchange they gained something else they wanted more, or it may be because their position was weaker than the employer's.

Sectoral determinations

The 1957 Wage Act allows for the establishment of Wage Boards. The BCEA provides for the establishment of an Employment Conditions Commission. (The Employment Conditions Commission may replace the Wage Boards over time.)

The Wage Board or Employment Conditions Commission investigates conditions in a particular industry or sector, and makes recommendations to the Minister of Labour. Once the Minister approves the recommendations, they are published in the Government Gazette as a Wage Determination or sectoral determination.

Sectoral determinations will be set in sectors where there is no collective bargaining, and which require detailed and specific regulations (e.g. the agricultural sector).

Sectoral determinations may override the provisions of the BCEA for workers in particular sectors. Sectoral determinations may set minimum wages in sectors, regulate payment in kind, regulate pension and medical aid schemes, prohibit or regulate piece work, set minimum standards for housing for workers who live on the employer's premises, and so on.

Ministerial exemptions

The Minister of Labour may override the provisions of the BCEA for particular groups of workers.

In 2002 the Minister passed two important Sectoral Determinations: for farmworkers and for domestic workers.

Farmworkers

Farmworkers are protected by Sectoral Determination 8 which provides for payment of a minimum wage for farmworkers as well as regulating other conditions of employment.

This is a summary of the provisions contained in the Sectoral Determination for farmworkers.

See the website: www.labour.gov.za and click on the appropriate Sectoral Determination

1. Notice period and termination of employment

Any party to an employment contract must give written notice, except when an illiterate worker gives it, as follows:

• one week – if employed for 6 months or less
• four weeks - if employed for more than 6 months

Notice must be explained verbally by or on behalf of the employer to a farmworker if he/she is not able to understand it.

If the farmworker lives in accommodation provided by the employer then the employer must give him/her one month’s notice to leave the accommodation or until the contract of employment could lawfully have been terminated.

The farmworker is allowed to keep livestock on the premises for a period of one month or until the contract of employment could lawfully have been terminated.

The farm worker who has standing crops on the land is allowed to tend to those crops, harvest and remove them within a reasonable time after they become ready for harvesting unless the employer pays the farm worker an agreed amount for the crops.

All money that is owing to the farmworker for example, wages, allowances, pro rata leave, paid time-off not taken, and so on must be paid.

2. Procedure for terminating employment

A farmworker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. IF an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA.

If a farmworker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the worker to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the farmworker then the employer can terminate his/her services.

The LRA (Act No 66 of 1995) sets out the procedures that must be followed when a person’s services are terminated.

3. Wage/remuneration/payment

As from 1st March 2003 all farmers throughout South Africa will have to pay their workers a minimum wage. There are two rates for the minimum wage which are based on where the farm is located. The two rates are for Area A and Area B.

Area A – The minimum rate for the period 1 March 2004 to 28 February 2005 is R871.58 per month and R4.47 per hour - applies to farms in the municipal areas of :

Bergrivier, Breederivier, Buffalo City, Cape Agulhas, Cederberg, City of Cape Town, City of Johannesburg, City of Tshwane, Drakenstein, Ekurhuleni, Emalahleni, Emfuleni, Ethekwini Central City, Gamagara, George, Hibiscus Coast, Karoo Highland, Kgatelopele, Khara Hais, Knysna, Kungwini, Kouga, Langeberg, Lesedi, Makana, Mangaung, Matzikama, Metsimaholo, Middelburg, Midvaal, Mngeni, Mogale, Mossel Bay, Msunduzi, Mtubatuba, Nama Khoi, Nelson Mandela, Nokeng tsa Taemane, Oudtshoorn, Overstrand, Plettenberg Bay, Potchefstroom, Randfontein, Richtersveld, Saldanha Bay, Sol Plaatjie, Stellenbosch, Swartland, Swellendam, Theewaterskloof, Umdoni, uMhlathuze, Witzenberg

Area B – The minimum rate for the period 1 March 2004 to 28 February 2005 is R713.65 per month and R3.66 per hour– applies to farms in the rest of South Africa

Farmers who can prove that they cannot afford the minimum wage can apply to the Department of Labour for a variation or exemption from this requirement. The Department will consider variations only where the farmer can give good financial reasons for this.

Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration. The total remuneration is the total of the money received by the employee and the payment in kind, which may not be more than 10% each of the wage for food and accommodation.

Remember to use the full wage (total remuneration) when you calculate any of the following:

• overtime pay
• payment for work on Sundays and public holidays
• payment for annual elave and sick leave
• contributions to and benefits from UIF

See Payment in kind
See Sample contract of employment for farmworkers

4. Transport allowance

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties.

5. Hours of work

(a) Normal hours (excluding overtime)

A farmworker cannot work more than:

• 45 hours per week
• 9 hours per day for a five day work week
• 8 hours a day for a six day work week

(b) Extension of ordinary hours of work

Ordinary hours of work can be extended by written agreement but by no more than 5 hours per week for a period of up to four months. The ordinary hours of work should be reduced by the same number of hours during a quiet period in the same twelve month period.

Averaging of working hours during season time

Averaging means workers can collectively agree to work shorter or longer hours than the Sectoral Determination allows. Any agreement to work longer hours means workers must get the same number of extra hours off at a later time. Any agreement regarding longer or shorter working hours must be in writing and should be done with the support of a trade union where possible. Farmworkers can agree to work up to 50 hours a week for their ordinary wages. This can only go on for four months. However, if the parties want to extend this arrangement, they can agree in writing to do this and they must then notify the Department of Labour of this agreement. In return, normal working hours must be reduced by the same amount during the quiet periods.

The employer must pay the farm worker the wage he/she would have received for his/her normal hours worked.

If hours have been extended and not reduced at a later stage, then the hours must be paid as overtime.

(c) Overtime

A farmworker may not work –

• more than 15 hours overtime per week, and
• more than 12 hours on any day, including overtime.

Overtime is paid at one and a half time the employee’s normal wage or an employee may agree to take paid time off.

(d) Daily and weekly rest periods

A farmworker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed;

The daily rest period can be reduced to 10 hours if the parties agree and if the employee lives on the premises and takes a meal interval that lasts for at least 3 hours.

The weekly rest period can by agreement be extended to 60 consecutive hours every two weeks or be reduced to 8 hours in any week if the rest period in the following week is also extended.

(e) Night work

• Night work means work performed after 8 p.m. and before 4.a.m.
• Night work can only happen if the farmworker has agreed to this in writing. The employee must be compensated by an allowance of at least 10% of the ordinary daily wage.

6. Meal intervals

A farmworker is entitled to a one-hour break for a meal after not more than five hours work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then they must be paid for this.

7. Work on Sundays

Farmworkers should be paid for work on Sundays as follows:

A farmworker who does not live on the farm who works on a Sunday must be regarded as having worked at least two hours on that day.

8. Public Holidays

Farmworkers are entitled to all the public holidays in the Public Holidays Act but the parties can agree to other public holidays. Work on a public holiday is voluntary which means a farmworker may not be forced to work.

The official public holidays are:

New Years day
Human rights day
Good Friday
Family Day
Freedom Day
Workers Day
Youth Day
National Woman’s Day
Heritage Day
Day of Reconciliation
Christmas Day
Day of Goodwill

Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement.

If the employee works on a public holiday he/she must be paid double the normal days wage.

9. Annual leave

Full time farmworkers are entitled to 3 weeks leave per year. If the parties agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked.

The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.

10. Sick leave

During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks.

The employer does not have to pay an employee if the employee has been absent from work –

• for more than two days in a row, or
• on more than two occasions during an 8-week period

and does not produce a medical certificate stating that he/she was too sick or injured to work.

11. Maternity leave

A farmworker is entitled to at least 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the parties may agree that the employee will receive part of her whole wage for the time that she is off.

12. Family responsibility leave

Employees who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:

• when the employee’s child is born
• when the employee’s child is sick
• if one of the following people dies: the employee’s husband / wife / life partner / parent /adoptive parent / grandparent/ child/adopted child/ grandchild/ brother or sister

13. Deduction from the remuneration

An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.

There can be a deduction of no more than 10% for food and 10% for accommodation that is provided regularly. In this case, the house must also have a proper roof and it must be waterpfoor. It must have a glass window that can be opened, electricity, water on tap inside the house and a flush toilet or pit latrine inside or close to the house.

Farmers may not deduct money from wages for training, provision of tools or equipment or uniforms.
Farmers may only deduct money from wages if this is for payment to-

• a funeral/pension fund
• a financial institution
• trade union fees

14. Other issues

Other issues that are not dealt with the Sectoral Determination include:

• probationary periods
• right of entry to the employer’s premises
• afternoons / weekends off
• pension schemes
• medial aid
• training/school fees
• funeral benefits/saving accounts

These can all be negotiated between the parties and included in the contract of employment

15. Prohibition of employment

No one under the age of 15 can be required or permitted to work.

16. Other conditions of employment

There is no provision which prevents other conditions of employment being included in a contract of employment but any new conditions may be less favourable than those set by the Sectoral Determination.

17. General administrative requirements

The Sectoral Determination states that farmers must comply with the following administrative processes:

• provide workers with a pay slip which should be kept for a period of 3 years
• provide workers with an employment contract

See www.labour.gov.za for more information

Sample contract of employment for farmworkers

This is a sample contract of employment for a farmworker

Name of employer………

Address of employer …………………..

To

Name of employee ……………………….

1. Commencement of employment

Employment started/will start on ………………………… and continue until terminated in terms of this contract.

2. Place of work

3. Job description

- Job title

- Duties:

4. Hours of work

4.1 Normal working hours will be ……… hours per week, made up as follows:

Monday/Tuesday/Wednesday/ Thursday / Friday ………….. a.m. to ………………p.m.
Mal intervals will be from: ……………..to ……………….
Other breaks:………………………

Saturdays: ………………………….a.m. to ………………………p.m
Meal intervals will be from: ……………..to ……………………..
Other breaks

Sundays: …………………………….a.m. to ………………………p.m.
Meal intervals will be from ………………to ……………………..
Other breaks

4.2 Hours of work will be extended with by not more than 5 hours per week during ……………..and reduced by the same hours during ………………..

4.3 Overtime will be worked as agreed from time to time and will be paid at the rate of one and a half times of the total wage as set out in clause 5.2 of this contract.

5. Wage

5.1 The employees wage shall be paid in cash on the last working day of every week/month and shall be: R………….

5.2 The employee shall be entitled to the following allowances/other cash payments in kind:

5.2.1 Accommodation per week/month to the value of R…………..
5.2.2 Food per week/month to the value of R …………

5.3 The following deductions are agreed upon: R………….
…………………………….. R………….

5.4 The total value of the above remuneration shall be : R………………
(the total of clauses 5.1 to 5.2.2
change or delete clauses as needed)

5.5 The employer shall review the employee’s salary/wage on or before 1 March of every year.

6. Termination of employment

Either party can terminate this agreement with one weeks notice during the first six months of employment and with four weeks notice thereafter. Notice must be given in writing except when it is given by an illiterate worker. In the case where the worker is illiterate notice must be explained orally by or on behalf of the employer.

On giving notice the employer is to provide the employer who resides in accommodation that belongs to the farmer accommodation for a period of a month. The employer is also obliged to allow the worker who has standing crops on the land a reasonable time to harvest the crop or the farmer may pay the worker an agreed amount for that crop.

7, Sunday work

Any work on Sunday will be by agreement between parties and will be paid according to the Sectoral Determination.

8. Public Holidays

Any work on holidays will be by agreement and will be paid according to the Sectoral Determination.

9. Annual leave

The employee is entitled to three weeks paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer.

10. Sick leave

10.1 During every sick leave cycle of 36 months the employer will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

10.2 During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked.

10.3 the employee is to notify the employer as soon as possible in case of his/her absence from work through illness.

10.4 A medical certificate is required if absent for more than 2 consecutive days or if absent on more than two occasions during an 8 week period.

11. Maternity leave
(Tick the applicable clauses in the space provided)

The employee will be entitled to ………………… months maternity leave without pay …………..
OR
The employee will be entitled to …………………. Months maternity leave on ……………….pag

12. Family responsibility leave

The employee will be entitled to three days family responsibility leave during each leave cycle if he/she works on at least 4 days a week.

13. Accommodation
(Tick the appropriate box)

13.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer, which shall form part of his/her remuneration package.

13.2 The accommodation may only be occupied by the worker and his/her immediate family, unless by prior arrangement with the employer

13.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employees direct family are visiting, such permission will not be necessary.

14. Clothing
(delete whichever is not applicable)

………………sets of uniforms/protective clothing will be supplied to the employee free of charge by the employer and will remain the property of the employer.

……………..sets of boots will be supplied to the employee free of charge by the employer and will remain the property of the employer.

15. Other conditions of employment or benefits

…………………………………………………..

16. General
Any changes to the written contract will only be valid if agreed by both parties.

…………………………………………………….
Employer

Acknowledgement of receipt by employee

Date:…………………………..

Domestic workers

Domestic workers are covered by the BCEA and the Labour Relations Act. As of November 2002 the employment of domestic workers has been regulated by a Sectoral Determination .

See Sectoral Determinations.

According to the Sectoral Determination Domestic Workers the following are minimum requirements for anyone employing a domestic worker:

• R861.90 minimum monthly salary (R4.43 per hour) in urban areas; R700.05 a month (R3.56 an hour) in rural areas. Domestic workers working 27 hours a week or less are entitled to a slightly higher rate.
• Payment must be made in a sealed envelope, by cash or cheque, and must include a detailed payslip. The employer must keep copies of these payslips for 3 years.
• Wages must increase by at least 8 percent every year in November until 2005.
• There must be a written contract of agreement between the employer and employee.
• A maximum of 45 ‘ordinary’ working hours a week
• Overtime is voluntary and should be paid at one-and –a half times the usual wage.
• Full-time workers are entitled to 21 days annual leave, paid sick leave, five days’ family responsibility leave, and 4 months unpaid maternity leave.
• No compulsory work on public holidays. Those who do agree to work should be paid double the normal hourly rate.

Note:
If an employer was paying their domestic worker more than the minimum wage and then dropped this amount to the minimum wage (after the Sectoral Determination came into force), they would have broken the contract and the employee can refer the case to the CCMA.

Summary of the provisions contained in the Sectoral Determination for domestic workers

1. Notice period and termination of employment

Any party to an employment contract must give written notice, except when an illiterate worker gives it, as follows:

• one week – if employed for 6 months or less
• four weeks - if employed for more than 6 months

Notice must be explained verbally by or on behalf of the employer to a domestic worker if he/she is not able to understand it.

If the domestic worker lives in accommodation provided by the employer then the employer must give him/her one month’s notice to leave the accommodation or until the contract of employment could lawfully have been terminated.

All money that is owing to the domestic worker for example, wages, allowances, pro rata leave, paid time-off not taken, and so on must be paid.

An employer who has to dismiss an employee due to a change in his/her economic, techonoolligca, or structural set-up, called operational requirements in the determination, is responsible for severance pay to the employee.

2. Procedure for terminating employment

A domestic worker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. IF an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA.

If a domestic worker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the worker to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the domestic worker then the employer can terminate his/her services.

The LRA (Act No 66 of 1995) sets out the procedures that must be followed when a person’s services are terminated.

3. Wage/remuneration/payment

All employers of domestic workers throughout South Africa will have to pay their workers a minimum wage. There are two rates for the minimum wage which are based on:

• where the domestic worker works
• the number of hours worked per week

Wages according to areas

Wages are given for two areas, Area A and Area B. These areas are based on municipal boundaries.

Area A:

Bergrivier, Breederivier, Buffalo City, Cape Agulhas, Cederberg, City of Cape Town, City of Johannesburg, City of Tshwane, Drakenstein, Ekurhuleni, Emalahleni, Emfuleni, Ethekwini Central City, Gamagara, George, Hibiscus Coast, Karoo Highland, Kgatelopele, Khara Hais, Knysna, Kungwini, Kouga, Langeberg, Lesedi, Makana, Mangaung, Matzikama, Metsimaholo, Middelburg, Midvaal, Mngeni, Mogale, Mossel Bay, Msunduzi, Mtubatuba, Nama Khoi, Nelson Mandela, Nokeng tsa Taemane, Oudtshoorn, Overstrand, Plettenberg Bay, Potchefstroom, Randfontein, Richtersveld, Saldanha Bay, Sol Plaatjie, Stellenbosch, Swartland, Swellendam, Theewaterskloof, Umdoni, uMhlathuze, Witzenberg

Area B –applies to the rest of South Africa

Wages will be payable according to the number of hours worked per week.

If a domestic worker works for 27 ordinary or less hours per week, he/she will be entitled to slightly higher wage. This is to compensate the worker, as he/she does not have a full-time job.

How do the wages work?

Area A
If a worker works less than 27 ordinary hours per week his/her hourly wage is R4.87 per hour
If a worker works more than 27 ordinary hours per week, his/her hourly wage is R4.43 per hour

Area B
If a worker works 27 ordinary hours or less per week his/her hourly wage is R3.95 per hour
If a worker works more than 27 ordinary hours or less per week, his/her hourly wage is R3.60 per hour

Guaranteed minimum rate

Some domestic workers might work less than 4 hours per day. IF this is the case, he/she should be paid for 4 hours worked.

Annual increase

Wages will go up by 8% on 1 November 2003 and another 8% on 1 November 2004. If the inflation rate is higher than 10% then the wage increase of 8% will be adjusted by the Department of Labour.

Calculating the minimum wages

Employers who cannot afford to pay the minimum wage can choose to reduce the number of hours to be worked instead of retrenching the employee. However, it is against the law to pay less than the minimum hourly rate. If an employer pays more than the prescribed hourly rate, they cannot reduce the rate because it will be an unfair labour practice.

Example of calculating a domestic workers wage

Sarah is a domestic worker who works 6 hours a day from Monday to Friday for an employer who lives in Soweto. How much should Sarah be paid according to the Sectoral Determination?

6 hours per day x 5 days = 30 hours worked per week
She must be paid at the rate prescribed for AREA A.

30 hours per week x R4.43 (rate for Area A for an employee working more than 27 hours per week)
= R132.90 per week

Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration. The total remuneration is the total of the money received by the employee and the payment in kind, which may not be more than 10% each of the wage for food and accommodation.

See Payment in kind
See Sample contract of employment for domestic workers

4. Transport allowance

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties.

5. Hours of work

(a) Normal hours (excluding overtime)

A domestic worker cannot work more than:

• 45 hours per week
• 9 hours per day for a five day work week
• 8 hours a day for a six day work week

(b) Overtime

A domestic worker may not work –

• more than 15 hours overtime per week, and
• more than 12 hours on any day, including overtime.

Overtime is paid at one and a half times the employee’s normal wage or an employee may agree to take paid time off.

(c) Daily and weekly rest periods

A domestic worker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed;

The daily rest period can be reduced to 10 hours if the parties agree and if the employee lives on the premises and takes a meal interval that lasts for at least 3 hours.

The weekly rest period can by agreement be extended to 60 consecutive hours every two weeks or be reduced to 8 hours in any week if the rest period in the following week is also extended.

(d) Standby

Standby means any period between 8 p.m. and 6 a.m. when a domestic worker is need to be at the workplace and is allowed to rest or sleep but must be available to work if necessary:

This may only be done if the parties have agreed in writing and not more than 5 times per month. An allowance of R20 per shift must be paid for standby.

(e) Night work

• Night work means work performed after 6 p.m. and before 6.a.m.
• Night work is allowed only if the domestic worker has agreed to this in writing. The employee must be compensated by an allowance of at least 10% of the ordinary daily wage.

6. Meal intervals

A domestic worker is entitled to a one-hour break for a meal after not more than five hours work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then they must be paid for this.

7. Work on Sundays

Work on Sundays is voluntary and a domestic worker can not be forced to work on a Sunday.

A domestic worker who works on a Sunday must be paid double the daily wage.

If the employee ordinarily works on a Sunday he/she should be paid one and a half times the wage for every hour worked. If the parties agree, the worker can be paid for time off.

8. Public Holidays

Domestic workers are entitled to all the public holidays in the Public Holidays Act but the parties can agree to other public holidays. Work on a public holiday is voluntary which means a domestic worker may not be forced to work.

The official public holidays are:

New Years day
Human rights day
Good Friday
Family Day
Freedom Day
Workers Day
Youth Day
National Woman’s Day
Heritage Day
Day of Reconciliation
Christmas Day
Day of Goodwill

Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement.

If the employee works on a public holiday he/she must be paid double the normal days wage.

9. Annual leave

Full time domestic workers are entitled to 3 weeks leave per year. If the parties agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked.

The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.

10. Sick leave

During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks.

The employer does not have to pay an employee if the employee has been absent from work –

• for more than two days in a row, or
• on more than two occasions during an 8-week period

and does not produce a medical certificate stating that he/she was too sick or injured to work.

11. Maternity leave

A domestic worker is entitled to at least 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the parties may agree that the employee will receive part of her whole wage for the time that she is off.

12. Family responsibility leave

Employees who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:

• 5 when the employee’s child is born
• 6 when the employee’s child is sick
• 7 if one of the following people dies: the employee’s husband / wife / life partner / parent /adoptive parent / grandparent/ child/adopted child/ grandchild/ brother or sister

13. Deduction from the remuneration

An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.

There can be a deduction of no more than 10% for food and 10% for accommodation that is provided regularly. In this case, the house must also have a proper roof and it must be waterpfoor. It must have a glass window that can be opened, electricity, water on tap inside the house and a flush toilet or pit latrine inside or close to the house.

14. Other issues

Other issues that are not dealt with the Sectoral Determination include:

8 probationary periods
9 right of entry to the employer’s premises
10 afternoons / weekends off
11 pension schemes
12 medial aid
13 training/school fees
14 funeral benefits/saving acocunts

These can all be negotiated between the parties and included in the contract of employment

15. Prohibition of employment

No one under the age of 15 can be required or permitted to work.

16. Other conditions of employment

There is no provision which prevents other conditions of employment being included in a contract of employment but any new conditions may be less favourable than those set by the Sectoral Determination.

17. General administrative requirements

The Sectoral Determination states that employers must comply with the following administrative processes:

• provide workers with a pay slip which should be kept for a period of 3 years
• provide workers with an employment contract

See www.labour.gov.za and click on Sectoral Determination for domestic workers for more information.

Sample contract of employment for domestic workers

This is a sample contract of employment for a domestic worker

Name of employer………

Address of employer …………………..

To

Name of employee ……………………….

1. Commencement of employment

Employment started/will start on ………………………… and continue until terminated in terms of this contract.

2. Place of work ………………………………….

3. Job description

- Job title

- Duties:

4. Hours of work

4.1 Normal working hours will be ……… hours per week, made up as follows:

Monday/Tuesday/Wednesday/ Thursday / Friday ………….. a.m. to ………………p.m.
Mal intervals will be from: ……………..to ……………….
Other breaks:………………………

Saturdays: ………………………….a.m. to ………………………p.m
Meal intervals will be from: ……………..to ……………………..
Other breaks

Sundays: …………………………….a.m. to ………………………p.m.
Meal intervals will be from ………………to ……………………..
Other breaks

4.2 Hours of work will be extended with by not more than 5 hours per week during ……………..and reduced by the same hours during ………………..

4.3 Overtime will be worked as agreed from time to time and will be paid at the rate of one and a half times of the total wage as set out in clause 5.2 of this contract.

4.4 Standby will only be done if agreed from time to time whereby an allowance wil be paid of at least R20,00 per standby shift.

5. Wage

5.1 The employees wage shall be paid in cash on the last working day of every week/month and shall be: R………….

5.2 The employee shall be entitled to the following allowances/other cash payments in kind:

5.2.1 Accommodation per week/month to the value of R…………..
5.2.2 a weekly/monthly transport allowance to the value of R …………

5.3 The following deductions are agreed upon: R………….
…………………………….. R………….

5.4 The total value of the above remuneration shall be : R………………
(the total of clauses 5.1 to 5.2.2
change or delete clauses as needed)

5.5 The employer shall review the employee’s salary/wage on or before 1 November of every year.

6. Termination of employment

Either party can terminate this agreement with one weeks notice during the first six months of employment and with four weeks notice thereafter. Notice must be given in writing except when it is given by an illiterate worker. In the case where the worker is illiterate notice must be explained orally by or on behalf of the employer.

On giving notice the employer is to provide the employer who resides in accommodation that belongs to the employer accommodation for a period of a month.

7, Sunday work

Any work on Sunday will be by agreement between parties and will be paid according to the Sectoral Determination.

8. Public Holidays

Any work on holidays will be by agreement and will be paid according to the Sectoral Determination.

9. Annual leave

The employee is entitled to three weeks paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer.

10. Sick leave

10.1 During every sick leave cycle of 36 months the employer will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

10.2 During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked.

10.3 the employee is to notify the employer as soon as possible in case of his/her absence from work through illness.

10.4 A medical certificate is required if absent for more than 2 consecutive days or if absent on more than two occasions during an 8 week period.

11. Maternity leave
(Tick the applicable clauses in the space provided)

The employee will be entitled to ………………… months maternity leave without pay …………..
OR
The employee will be entitled to …………………. Months maternity leave on ……………….pag

12. Family responsibility leave

The employee will be entitled to three days family responsibility leave during each leave cycle if he/she works on at least 4 days a week.

13. Accommodation
(Tick the appropriate box)

13.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer, which shall form part of his/her remuneration package.

13.2 The accommodation may only be occupied by the worker and his/her immediate family, unless by prior arrangement with the employer

13.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employees direct family are visiting, such permission will not be necessary.

14. Clothing
(delete is not applicable)

………………sets of uniforms/protective clothing will be supplied to the employee free of charge by the employer and will remain the property of the employer.

15. Other conditions of employment or benefits

…………………………………………………..

16. General

Any changes to the written contract will only be valid if agreed by both parties.

…………………………………………………….
Employer

Acknowledgement of receipt by employee

Date:…………………………..

See Payment in kind

Prohibited employment

Child labour

• Children below the age of 15 years may not be required or permitted to work.
• Children between the ages of 15 and 18 may not perform work that places their well-being, education, or physical and mental health at risk.

The Department of Labour and state prosecutor will be primarily responsible for enforcing the rules about child labour. To employ children is a criminal offence.

Forced labour

No-one may force employees to work (for example, an employee was unfairly dismissed and was also not paid leave pay). This is a criminal offence.

Enforcement of the BCEA

If you are helping a worker with a problem who is covered by the BCEA, then you refer the problem to the Department of Labour if you have tried and cannot solve the problem with the employer on your own.

The Department of Labour is responsible for enforcing the BCEA. The Department appoints inspectors who have wide powers to make sure employers obey the Act.

A worker whose employer is not obeying the BCEA can complain to the Department of Labour. A Labour inspector will investigate. If the inspector decides the employer is breaking the law, he or she will try to get a written promise from the employer to obey the BCEA. The inspector may issue a 'compliance order' to employers who do not obey the BCEA. If the employer ignores the compliance order, the Department of Labour must refer the matter to the Labour Court to force the employer to obey. Employers are also entitled to appeal against compliance orders to the Director General of Labour or the Labour Court.

Workers can also make their own civil case in the Magistrates Court and the Small Claims Court, to get money that is owing to them.

The Department of Labour will only make a criminal case against an employer for employment of child labour.

Workers whose employer is not obeying the BCEA must take the matter to the Department of Labour, not to the CCMA.

But if the worker and employer are in a dispute about a matter covered by the Labour Relations Act, and they are busy trying to resolve the dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA), then the CCMA can also order the employer to pay money that is owed to the worker because of the worker's BCEA rights. For example, where a dismissal is being contested at the CCMA, the CCMA will be able to order an employer to pay outstanding money owed to the worker. The law is made like this just to simplify procedures and to avoid the matter having to go to both the Department of Labour and the CCMA (and possibly the courts!).

Summary of BCEA conditions of employment

Working times and pay

• The maximum hours of work is 45 hours per week for ordinary pay.

• The maximum length of a working day is 9 hours if the worker works a 5-day week, but 8 hours a day if the worker works a 6-day week. Where the working week is compressed (squashed) into fewer days, then shifts of longer hours may be introduced with the employee’s consent. For example, an employee can agree to work shifts of 12 hours over 4 working days.
• Overtime is voluntary. No worker may work more than 10 hours of overtime per week. Overtime must be paid per hour of overtime worked, at a rate of one and a half times the worker’s ordinary hourly wage. In addition, no employee may work more than 12 hours in any day (including overtime on that day).

Even though overtime is voluntary, if the employee agreed in the original contract to work over time when necessary, then this overtime must be worked. If the employee refuses to work overtime then he/she is in breach of the contract and the employer can take disciplinary action against the employee.

An employer who is employing less than 10 employees only needs to pay overtime at time and a third of the normal wage. The employer can also agree with the employee to work up to 15 hours overtime during a week as against the normal ten hours.

Note: While individual overtime is voluntary (subject to an agreement) a joint refusal by a number of employees to work normal overtime, will probably constitute a strike or industrial action.

• Payment for Sunday work must be the greater of:

• Double the normal hourly rate for the amount of Sunday hours worked,

Or

• one full day’s pay.

If it is normally part of a worker’s job to work on a Sunday, then s/he must be paid at a rate of time and a half his/her normal hourly rate.

• Workers are entitled to be paid for public holidays which fall on a day that they normally would have worked - even though they will be off and not working on the public holiday. A worker can agree to work on a public holiday, but this is voluntary. If a worker does agree to work on a public holiday, they must get a normal working day off in exchange or they must be paid double the normal hourly rate for the amount of hours worked on the public holiday.

The public holidays are:

1 January	New Year's Day
21 March	Human Rights Day
	Good Friday
	Family Day
27 April	Freedom Day
1 May	Workers' Day
16 June	Youth Day
9 August	National Women's Day
24 September	Heritage Day
16 December	Day of Reconciliation
25 December	Christmas Day
26 December	Day of Goodwill

• Night work after 6 p.m. and before 6 a.m. is voluntary. Workers must be paid an extra allowance or have their working hours reduced. Transport must be available for the workers to get from their homes to work and back. The law is unclear as to who must ‘provide or pay’ for such transport.

Flexibility in working hours

The BCEA allows for some flexibility in the arrangement of working hours, by agreement between the employer and workers (collective agreement) or one worker (individual agreement):

• Compressed working week by collective or individual agreement:
  Employees can work up to 12 hours of normal work on any day without receiving overtime pay. But the employees may still not work more than 45 normal hours per week and may not work on more than 5 days in a week. Any time worked beyond 45 hours in the week should be paid at overtime rates.
• Averaging of working hours by collective agreement only:
  Averaging means workers can agree to work longer hours than the BCEA usually allows, if they get the same number of extra hours off at a later time. This would for example mean that workers could agree to work longer hours in one week for normal pay, if they work reduced hours for normal pay the following week. But the workers may still not work more than an average of 45 ordinary hours per week during this period. Also the agreement cannot go on for longer than 4 months. Where reference is made to a collective agreement, then this an agreement should be made through the employees’ trade union.’

Payment in kind

Wages can be paid partly in kind. This means that if the worker and the employer agree that wages will be paid partly in kind then the employer can pay the worker his or her wage through giving him or her housing or use of land, or rations (food), as well as cash. This has been common with farmworkers and domestic workers.

The law says how much the payment in kind is worth. So, to calculate a farmworker's full wage, you must add the following:

cash wage + payment in kind

It is often very difficult to work out the value of payment in kind. So the law says that the value of the payment in kind must be worked out as follows:

EITHER R100 per month
OR 1/3 of the cash wage
WHICHEVER IS HIGHER

The employer and worker can also agree on what the real value of the payment in kind is. They can only do this if the value that they agree upon is more than what the law says. This agreement must be in writing.

When you want to calculate any of the following:

• overtime pay
• payment for work on Sundays and public holidays
• payment for annual leave and sick leave
• contributions to and benefits from UIF

you must use the full wage which is the cash wage plus the payment in kind.

Deductions

Deductions from wages (other than those required by law) are not permitted without the written consent of the worker.

The deductions required by law which an employer makes from the wages of a worker are as follows:

• Unemployment Insurance Fund (UIF)
• SITE (tax)
• any deduction ordered by a court

The lawful deductions which an employer can make from the wages of a worker, if the worker instructs the employer in writing to make the deduction, are as follows:

• trade union subscriptions
• medical aid contributions
• pension or provident fund
• money to pay back a housing loan or other loan from the employer
• money for food and accommodation
• For loss or damages suffered at work provided the employee has been given a hearing to explain the facts.

The amount that can be deducted can be equal to (but not more than) 25% of the normal wage to offset losses.

Often employers also make unlawful deductions from workers' wages. Examples are when:

• the employer says there were shortages in a till and the worker has to pay back the shortages
• the worker breaks something at work
• the worker owes the employer money, but did not agree that the amount owing should be deducted
• the worker is off sick and the employer deducts money for the days not worked
• the worker is absent from work without leave (permission to take annual, family responsibility or maternity leave, or being sick)

If an employer wants to deduct a fine from a worker's wage, to compensate the employer for loss or damage, the employer can only deduct the fine if:

• the loss/damage happened during the 'course and scope of employment'
• the worker was at fault
• a fair hearing was held to give the worker a chance to state her or his case
• the employer does not deduct more than the actual value of the loss or damage
• the total amount deducted is no more than 25% of the employee’s wages
• the worker gives consent in writing

REMEMBER: Fines may not be deducted from wages. The employer can only deduct from a worker's wage if the worker has agreed to this or if a court has ordered this, and if the employer follows the rules above.

Daily and weekly rest periods

• No employee’s hours of work may be spread over more than 12 hours per day. ‘Spread over’ means from the start of work to the end of work, including any breaks for meals or rest and any overtime.
• No worker's hours of work may be spread over more than 12 hours per day. ('Spread over' means from the start of work to the end of work, including any breaks for meals or rest and any overtime.) 
• A rest period of 1 hour is required after every 5 hours worked. This can be reduced to 30 minutes, if the worker and employer agree in writing. 
• Every worker is entitled to a daily rest period of 12 hours from the end of work on one day to the start of work on the following day. This rest period can be reduced to 10 hours if a worker lives on the premises and gets a meal break of at least 3 hours (this may be relevant to domestic workers, caretakers, farmworkers, and so on). 
• Every worker is entitled to a weekly rest period of 36 continuous hours. For many workers, this is over the weekend.
• An agreement in writing between the employer and employee may reduce the meal interval to not less than 30 minutes or do away with a meal interval if the employee works less than 6 hours on a day.

The agreement can also provide for a rest period of at least 60 consecutive hours (hours in a row) every two weeks.

Leave

Leave can be annual (yearly) leave, sick leave, maternity leave, family responsibility leave, or unpaid leave.

Annual leave

• Every worker is entitled to 21 consecutive days paid leave per year. This is the equivalent of three weeks time off.
• The worker is entitled to take 21 days all in one go, but can choose to use the annual leave to take occasional days off work. The employer then deducts these days of occasional leave that a worker took during the year from the annual leave. 
• Annual leave must be taken within 6 months of the end of an annual leave cycle (a year's work). 
• If the worker is off work on any other kind of leave, these days do not count as part of annual leave. Another way of saying this is that annual leave cannot be taken at the same time as sick leave, family responsibility leave or maternity leave. 
• If the leave period covers a public holiday, then the public holiday does not count as part of the worker's leave. (Paid public holidays are: 1 January New Year's Day, 21 March Human Rights Day, Good Friday, Family Day, 27 April Freedom Day, 1 May Workers' Day, 16 June Youth Day, 9 August National Women's Day, 24 September Heritage Day, 16 December Day of Reconciliation, 25 December Christmas Day, 26 December Day of Goodwill.) 
• Annual leave cannot be taken at the same time as the notice period. 
• Leave pay is not a bonus on top of normal pay. It simply means that a worker gets a holiday every year, and gets normal pay for those days. If a worker doesn't take leave, or all the leave, the employer will not pay out leave pay instead of leave. 
• If a worker leaves a job without having taken all the leave that is due to them, the worker must be paid for the days of leave that they have not taken. This is called pro rata leave pay.

Sick leave

• A permanent worker is entitled to paid sick leave of 30 days over any 3-year cycle (36 days if the worker works a 6-day week). During the first 6 months that a worker works for an employer, she or he gets 1 day paid sick leave for every 26 days worked. Once all these paid sick leave days are used up, the employer does not have to pay the worker when he or she is off sick. An employee who works more than 24 hours during any month earns one days leave for every 26 days worked.’
• Seasonal or temporary workers are entitled to 1 day's sick leave for every 26 days worked over the first 6-month cycle. 
• Workers who are sick for more than 2 days may be required to produce a doctor's certificate. If a worker lives on the premises and it is difficult for them to get to a doctor (for example, in rural areas), the worker does not have to produce a certificate unless the employer gives the worker reasonable assistance to get the certificate. 
• Sick leave pay is not a bonus on top of normal pay. It simply means that if a worker is genuinely sick and has to take time off work, the employer must pay the worker up to a certain number of days. For example, if a waitress in a restaurant only took 3 days sick leave this year, the employer does not owe her the money for the remaining sick leave days at the end of the year.

Family responsibility leave

• Every worker with more than 4 months service with an employer, and who works on more than 4 days a week, is entitled to 3 days paid family responsibility leave per year. This can be taken if a direct family member dies, or when a child is born or ill. A total of three days is allocated for this kind of leave and not three days for each event.

Maternity leave

• Women workers are entitled to 4 months unpaid maternity leave. During this time, the worker may draw maternity benefits from the Unemployment Insurance Fund.

A Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child has been published.

Unpaid leave

An employer may agree to let a worker take extra days of annual leave, or the worker may be sick for longer than the paid sick leave. Then the employer does not have to pay the worker for these days.

Absent without leave

If a worker takes leave without getting permission from the employer and is not sick, the employer does not have to pay the worker for the time taken off. If the worker takes off many days in a row without permission (normally more than 4 consecutive days), or often takes time off without permission, the employer may presume that the worker has deserted (left without giving notice) his or her employment. The employer may employ someone else to do the job. In this case the employer does not give the worker notice. But if the worker returns, fair dismissal rules must be followed.

Notice

• During the first six months of employment, workers will be entitled to at least 1 week's notice of the termination of their services.
• After the first six months, but during the first year of employment, workers will be entitled to 2 week's notice.
• If they have worked for more than one year, workers are entitled to 4 week's notice.
• If an employment contract has a longer period of notice than the BCEA, the longer notice must be given.
• Notice works both ways! If a worker resigns without giving the employer the correct amount of notice, for example one week, the employer can claim one week's pay from the worker.
• Notice must be in writing.
• Neither the employer nor the worker can give notice while the worker is on leave.
• Farmworkers and domestic workers who have been employed for more than 6 months are entitled to 4 weeks notice.

All workers are entitled to a written certificate of service when the worker stops working for that employer. The certificate of service sets out the full name of the employer and the worker, the job/s that the worker was doing, the date that the worker began working and the date that the worker ended work, and the wage at the time that the job ended, including payment in kind.

Administration

Except for domestic workers or workers who work less than 24 hours a month:

Before the job starts, the employer must give the worker written particulars about the job, including:

• a description of the job
• the hours that the worker will be expected to work
• ordinary and overtime rates of payment, including payment in kind and its value
• any deductions to be made
• how much leave the worker will get
• the notice period

This document is like a contract of employment, but the worker doesn't have to sign it. If a worker can't read, the particulars must be explained in a language the worker understands. An employer who employs fewer than 5 employees does not have to provide the above details.

The BCEA says an employer must hand the worker his or her wages with certain details on a payslip, including:

• the period for which the worker is being paid
• the number of overtime hours worked
• the number of hours worked on a Sunday or public holiday
• the wages due to the worker (both normal and overtime)
• the amount and reason for any deductions made for tax, pension, UIF and so on
• the actual amount paid

The BCEA says the employers must keep the following records:

• the time worked by each worker
• the wages paid to each worker

Prohibition of victimisation and exploitation

The employer is not allowed to victimise a worker who refuses to do something that is against the BCEA. For example, if a worker says she cannot work overtime because her baby is sick at home, the employer cannot dismiss her, because the BCEA says that an employer cannot make a worker work overtime without the worker's consent.

Collective agreements

Collective bargaining is workers and employer/s negotiating with each other about terms and conditions of employment, to reach a collective agreement. The collective agreement may have different conditions to those in the Basic Conditions of Employment Act (BCEA).

A collective agreement overrides any individual contract of employment.

Collective agreements can be of two kinds:

• The Basic Conditions of Employment Act (BCEA) allows variation of certain specified conditions in the BCEA through collective bargaining between a group of workers represented by a registered union working of the same employer (usually at one workplace) and the employer.
• The Labour Relations Act allows centralised collective bargaining. Groups of workers in the same industry or sector bargain with the employers in that industry or sector. The Act also allows for a Collective Agreement to be entered within an organisation between a trade union and the employer.

Workplace-based collective agreements

A group of workers working for the same employer (usually at one workplace) and the employer negotiate and make a collective agreement. The collective agreement covers terms and conditions of employment for that category of workers working for that employer.

The BCEA says what things workers and employers are free to make collective agreements about. For example, workers and their employer cannot collectively agree that child labour will be allowed. Certain core rights cannot be altered. These include normal working hours (45 hours) maternity leave, night work provisions etc.

A workplace-based agreement may have different conditions to those in the BCEA, as long as they are more favourable to the worker than the BCEA. The BCEA sets out the minimum conditions of employment. Any agreement must at least comply with all the provisions of the BCEA. If an agreement breaks any part of the BCEA, it is not enforcable and the BCEA conditions override the conditions in the agreement.

If the collective agreement does not cover certain terms and conditions of employment, then those terms and conditions in the BCEA apply to the workers.

Notice to terminate a collective agreement must be given in writing.

A collective agreement can be made mandatory for all employees in a bargaining unit (in other words, non-union members) if the union is a majority union and the agreement specifies those employees to be covered by such agreement.

Enforcement of a workplace-based collective agreement

If you are helping a worker with a problem who is covered by a collective agreement under the BCEA, then you refer the problem to the CCMA or Bargaining council if you have failed to solve the problem with the employer on your own. If there is disagreement over an interpretation of a collective agreement or how it is being applied, then this can also be referred to the CCMA or appropriate bargaining council for conciliation and final arbitration.

Bargaining Council Agreements

A Bargaining Council Agreement is the outcome of centralised collective bargaining under the Labour Relations Act.

A Bargaining Council Agreement sets out terms and conditions of employment for a particular industry in a particular area. The Agreement covers things like minimum wages (the lowest wages that an employer can pay a worker) and conditions of work (notice, annual leave, sick leave, and so on), in a particular industry in a particular area.

The conditions in the collective agreement may be better for workers than those in the BCEA. OR workers may agree to conditions less favourable than the BCEA provided they do not affect certain core rights (see section 49 of the BCEA).

How are Bargaining Council Agreements made?

Bargaining Councils are permanent structures. They are made up of representatives of employers on the one hand and of trade unions on the other. The Labour Relations Act sets out conditions for setting up Bargaining Councils. (Note: existing Industrial Councils are changed into Bargaining Councils by the LRA.)

The two sides (also called parties) to a Bargaining Council negotiate together to make a Bargaining Council Agreement. Bargaining Council Agreements are put in the Government Gazette.

A bargaining council may ask the Minister of Labour in writing to extend a collective agreement to any non-parties to the agreement, who are within the ’scope’ of the council.

If there is no Bargaining Council in a sector, unions or employer organisations can apply to establish a Statutory Council under the Labour Relations Act. The workers' unions must represent 30% or more of workers in the sector, and the employers' organisation must represent 30% or more of employers in the sector. Statutory Councils can negotiate education and training, benefit funds and dispute resolution in the sector. In Statutory Councils, employers are not forced to negotiate over wages and conditions of employment. A Statutory Council may become a Bargaining Council later.

Up to 2002 only one statutory council has been established in South Africa.

Enforcement of a Bargaining Council Agreement

If you are helping a worker with a problem who is covered by a Bargaining Council Agreement, then you refer the problem to the Bargaining Council if you have tried and cannot solve the problem with the employer on your own.

After the Bargaining Council Agreement has been published in the Government Gazette, it is an offence for an employer or worker (in that industry and in that area) not to obey the terms of the agreement. Any problems about any of the working conditions in the Agreement must be referred to the Bargaining Council for investigation.

The Bargaining Council’s powers to enforce agreements have now been extended. The council’s agents now have powers of inspection similar to Labour Inspectors in terms of the BCEA. Such agents can provide compliance orders where employers are in breach of the council agreement.

Settling disputes under a Bargaining Council

It is also the Bargaining Council's job to assist with settling disputes, such as an unfair labour practice or an unfair dismissal.

Disputes must first be referred to the relevant Bargaining Council for conciliation. The Council acts as a mediator to help the two parties negotiate a solution. If the conciliation does not resolve the dispute, either of the parties may refer the matter for arbitration by the Commission for Conciliation, Mediation and Arbitration (CCMA), unless the Bargaining Council has its own accredited arbitrators. Then the Bargaining Council decides what the solution must be and makes a ruling. The Bargaining Council dispute resolution procedure is similar to the CCMA dispute resolution procedure.

Some Bargaining Councils do not have their own dispute resolution procedures in place. They may refer disputes within that industry to the CCMA for mediation and arbitration.

The powers of bargaining council agents have been increased in line with the Department of Labour’s inspector’s jurisdiction.

A bargaining council arbitrator may make an award ordering the employer to pay an amount owing, or impose a fine, or an appropriate award.

Sectoral determinations

A sectoral determination controls the terms and conditions of employment for workers in that particular sector. It may set minimum wages in sectors, regulate payment in kind, regulate pension and medical aid schemes, prohibit or regulate piece work, set minimum standards for housing for workers who live on the employer's premises, and so on.

Sectoral determinations will be set in sectors where there is no centralised collective bargaining, and which require detailed and specific regulations (e.g. the agricultural sector).

Sectoral determinations may have different conditions to those in the Basic Conditions of Employment Act (BCEA). The conditions in the sectoral determinations will override the conditions in the BCEA.

How are sectoral determinations made?

The 1957 Wage Act allows for the establishment of Wage Boards. The Basic Conditions of Employment Act (BCEA) provides for the establishment of an Employment Conditions Commission. (Employment Conditions Commission may replace Wage Boards over time.)

The Wage Board or Employment Conditions Commission investigates conditions in a particular industry or sector. The Wage Board holds meetings in each main area in South Africa. The dates and times for the meetings are advertised in the Government Gazette. Anyone who is interested in the particular industry - for example companies, workers, unions - can attend these meetings and have a say in front of the Board.

When the Wage Board or Employment Conditions Commission has heard all the information, it makes recommendations to the Minister of Labour. Once the Minister approves the recommendations, they are published in the Government Gazette as a Wage Determination or sectoral determination. Every now and then the determination is amended. This means the government changes the wages or conditions of work.

Enforcement of a sectoral determination

If you are helping a worker who is covered by a sectoral determination or Wage Determination, then you refer the problem to the Department of Labour if you have tried and cannot solve the problem with the employer on your own.

It is the Department of Labour's job to make sure that all employers and workers obey the conditions of employment laid out in sectoral determinations and Wage Determinations.

Settling disputes under a sectoral determination

It is also the Department of Labour's job to help with the settling of disputes.

General summary of a wage regulating measure

Collective agreements, Bargaining Council Agreements (BCAs), Wage Determinations and sectoral determinations (S/WDs) which regulate terms and conditions of employment are commonly called wage regulating measures.

It is important to remember that the conditions and wages usually differ from one BCA or S/WD to the next. In other words all these Agreements and Determinations talk about a period of notice, but in one Wage Determination the notice period may be one week while in another it may be two weeks.

Below is a list of the more common aspects relating to conditions of employment which appear in all wage regulating measures:

• Area and scope: 
  defines the geographical area where the BCA or S/WD applies, and describes the type of work covered by the BCA or S/WD. 
• Definitions:
  defines the different categories of workers, including casual workers. 
• Remuneration:
  This tells you what wage each of the different categories of workers must be paid. Workers from the same category who work in different areas may be paid different wages. For example, one worker who works in Cape Town, an urban area, and another worker who works in Worcester, a rural area, may be paid different wages according to the wage regulating measure. 
• Payment of remuneration:
  how workers should be paid their wages. An employer must hand the worker his or her wages with certain details on a payslip. 
• Deductions:
  the deductions which an employer may make from the wages of a worker. 
• Hours of work and pay:

This section tells you exactly how many hours of work the employer can expect the worker to work, either ordinary time or overtime, or Sundays and public holidays. The section also says how much extra the worker must get paid for ordinary overtime or Sundays and public holidays.

• Annual leave and sick leave:

This section tells you exactly how much leave workers can take every year, and how much they should be paid when they take this leave. The section also says how much workers who worked for less than a year should be paid when they leave their work.

The BCA or S/WD also says exactly how many days a worker can be paid for being off sick. In most cases the worker must produce a medical certificate if he or she was sick for more than two days (check this out in the relevant BCA or S/WD).

• Piece work and commission work:
  Piece-work means that a worker is not paid for the hours that he or she works. The worker is paid for the number of items produced. A worker should not get less than the minimum wage set for that sector/industry if paid on a piece-work basis. 
• Termination of contract of employment:
  The relevant BCA or S/WD will say how much notice an employer must give. In some industries it is only one week's notice. In other industries it may be two weeks. 
• Prohibition of employment:
  The BCA or S/WD may say who is not allowed to do this work, for example pregnant women. The Basic Conditions of Employment Act says children between the ages of 15 and 18 may not perform work that places their well-being, education, or physical and mental health at risk. The BCA or S/WD may say that this work does place these children at risk and so is only suitable for people over the age of 18. 
• Dispute resolution:
  The Labour Relations Act allows workers and employers to collectively agree to dispute resolution procedures that differ from those in the Act. This affects BCAs and other collective agreements.

The BCA or S/WD will have other sections, for example what uniforms, overalls and protective clothing workers must wear, what records employers must keep, and so on.

If there are any particular terms or conditions of employment that are not specified by the BCA or S/WD, then those terms or conditions of employment in the Basic Conditions of Employment Act apply to workers.

Motor vehicle accidents at work

If a motor vehicle accident happens while you are at work doing your job, then you can get compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA).

But if you are injured in a motor vehicle accident caused by someone else's negligent or unlawful driving, even if this is on the job, then you can also make a third party claim from the Road Accident Fund.

The money that you get from the COIDA will be taken off the third party payment. For example, if the Road Accident Fund agrees to pay damages of R15 000, but the COIDA has already paid R10 000, then you will only get R5 000 damages from the Fund.

Note that COIDA says that you cannot sue your employer for damages if you are injured on the job. (But if your employer caused injury to you while you were not on the job, you can sue him or her.) So if a motor vehicle accident happens when you are at work, you cannot sue your employer in a civil court case.

Deregulation

Deregulation means removing laws and regulations so that there is less restriction and 'red-tape' for people who want to operate in an area. Deregulation sometimes has a positive effect - for example the lifting of regulations that control the granting of hawkers' licences. This means that more people can work as hawkers or street traders because the laws about getting a hawker's licence aren't so strict.

But in other cases deregulation can be a bad thing for workers.

Examples of 'negative' deregulation are:

• when some industries can apply to be exempt from Bargaining Council Agreements.
• when some businesses are exempted from some of the provisions of the Basic Conditions of Employment Act, for example being allowed to have continuous working hours.
• when some small businesses are exempted from the laws in Wage Determinations. For example, most Wage Determinations say that the provisions of the Wage Determinations do not apply to businesses operating in their first year, as long as there is only one such business. This means that for the first twelve months that a business operates, the business doesn't have to pay minimum wages, or follow any of the conditions laid down in the Wage Determination. In the second year, these businesses only have to pay workers 90% of the wage set out in the Determination. The Wage Determinations also exempt any business that has less than a certain number of workers, or businesses with a certain turnover.
• where 'industrial hives' are created. These are set areas where wage regulating laws will not apply. But these industrial hives must be specifically proclaimed. In other words it must be made law that a specific area is excluded from the provisions of certain protective laws.

Deregulation CAN override the Basic Conditions of Employment Act.

The Occupational Health and Safety Act of (No 85 of 1993)

The 1994 Occupational Health and Safety Act (OHSA) replaced the 1983 Machinery and Occupational Safety Act.

The OHSA gives workers some rights in health and safety at work. It tells management to set up safety representatives and safety committees in the workplace. The regulations in the Act give guidelines on things like toilets, change rooms, first aid, drinking water, washing facilities, protective clothing, machinery, stacking and packing, ladders, fire, ventilation, lighting, temperature, noise, asbestos. Inspectors have wide powers in terms of the Act to make sure that employers and workers follow the Act.

As a paralegal, you may want your own copy of the Occupational Health and Safety Act. You can get a summary of this Act from the Department of Labour.

See the following website for an easy guide to OHSA and the Regulations: www.labour.gov.za/docs/legislation/ohsa/ohsbooklet.html

Who does the OHSA cover?

The Act excludes workers in mines and on ships, where other laws apply. The OHSA covers all other workers, including farmworkers, domestic workers and state workers.

The workers' duties

Workers must take reasonable precautions over their own health and safety at work. They must follow any precautions and rules about safety and health. They must report any unsafe circumstances or accident as soon as possible to the safety representative. Anyone who acts in a reckless way or damages any safety measures can be charged. Also, if the worker does this damage on purpose, then the employer can claim damages from her or him.

The employer's duties

The employer must make sure that the workplace is safe and healthy, and must not allow any worker to do work which is potentially dangerous. The worker must know what the dangers of the work are. But it is always employer who decide on what is a threat to workers' safety.

The general duties of the employer are to:

• choose safety representatives
• consult with the workers' organisation about the safety representatives
• inform workers of the dangers in the workplace
• reduce any dangers to a minimum before issuing protective clothing
• issue protective clothing where necessary
• give necessary training to workers who use dangerous machines or materials, to make sure they know the safety precautions
• prevent workers from using or working with dangerous materials or machines, unless all the necessary safety rules have been followed
• ensure that dangerous machines are in good working order and are safe to work with
• make sure that dangerous machines carry warnings and notices
• make sure that someone who knows the work is supervising the operations to ensure the safety of the workers
• keep the workplace open so that workers can escape from danger if necessary
• not move any evidence of an accident before an inspector has given permission, unless someone has been badly injured and needs treatment

The Chief Inspector can ask any employer for a report of the safety precautions.

An employer cannot take action against any workers who do the following:

• give information about their conditions at work or that the Act says they have to give
• give evidence in court
• respond to any request of an inspector
• refuse to do anything that is against the law

Reporting accidents or incidents

The employer must keep a report of all accidents and safety or health incidents in the workplace. The employer must report certain accidents or incidents to the safety representative and to the Department of Labour. For example, the release of any dangerous materials that are normally kept under cover.

Safety Representatives and safety committees

The employer must appoint one safety representative for every 20 workers. There must be at least one representative for every 50 workers. The employer must explain to the workers' organisation what responsibilities the safety representatives will have and how the representatives will be selected.

In every workplace where there are two or more safety representatives there must also be a safety committee. This committee must meet at least every three months. The committee must deal with all safety and health issues that affect workers. The safety committees have certain functions and powers. You can find out more about these in the Act or by contacting the Department of Labour.

Enforcement of the OHSA

OHSA falls under the administration of the Department of Labour. Inspectors from the Department have wide powers to search the workplace, question people, ask for explanations from an employer, and so on.

An inspector can fine a person for breaking the Act. If that person wants to appeal against the inspector's decision, they can appeal to the Chief Inspector. They can appeal against the Chief Inspector's decision in the Labour Court.

If a worker is hurt at work as a result of the employer not following a safety regulation, then that employer can be fined up to R100 000 and /or two years in prison.

Disputes and ways of settling disputes

What is a dispute?

A dispute is any serious disagreement between two sides (these sides are also called the 'parties' to the dispute). For example, there could be a dispute over a problem of discipline in the workplace, over complaints (also called 'grievances') which workers have, or over dismissals. There can also be disputes over wages and other working conditions.

There are different kinds of disputes. You can have a dispute about making new rights, for example workers wanting to get paid higher wages or the employer bringing in a new pension or provident fund scheme that workers must belong to. These disputes are also called disputes of interest (in other words, disputes about workers and employers having different interests). Advice offices do not often deal with disputes of interest. These disputes are usually handled by a union and are the subject of negotiation and possibly industrial action.

The Labour Relations Act (No 66 of 1995) describes structures and processes which can be used to resolve disputes of interest. The Act also governs the procedures for taking industrial action.

You will often deal with disputes over rights which already exist in contract, law, agreement or in custom and practice.. These kinds of disputes are also called disputes of right. They usually involve an unfair labour practice (such as racial or sexual discrimination in the workplace, sexual harassment, and so on) or an unfair dismissal (for example retrenching workers without consulting with the workers and union).

The Labour Relations Act sets out how disputes over rights in the workplace must be handled.

The Employment Equity Act (No 55 of 1998) (EEA) aims to create an environment of equality and non-discrimination in the workplace. It sets out how discrimination will be dealt with in the workplace.

A dispute of right can also happen when an employer or worker doesn't obey employment terms and conditions, for example in the Basic Conditions of Employment Act, a Bargaining Council Agreement or other collective agreement, or a Wage Determination or sectoral determination, or a Ministerial exemption. An example of such a dispute is if an employer doesn't give proper notice to a dismissed worker or if leave pay is not paid out. Then it is a matter of enforcing the relevant law.

Enforcement and disputes about terms and conditions of employment that fall under these laws are covered in the section called LAWS ABOUT TERMS AND CONDITIONS OF EMPOLYMENT.

Solving labour problems as a paralegal

If the worker belongs to a union, always inform the union. The union may take the matter forward, or the union at least needs to know about the matter.

If the worker does not belong to a union, the worker may want to join an appropriate union if one exists, or a union which organises in the sector the worker is in may be willing to take the case up.

Dispute of rights (about legal rights which workers already have)

If it is a matter of enforcing a right under:

• the Basic Conditions of Employment Act (BCEA)
• a collective agreement under the BCEA
• a sectoral determination or a Wage Determination
• the Occupational Health and Safety Act
• Approach the employer directly to try to get the employer to give the worker the right.
• If the employer refuses to give the worker the right, complain to the Department of Labour and the Department will enforce the law.
• A complaint should be sent directly to an inspector of the Department. A request for a ‘Compliance order’ should be sent to the Department.

If it is a dispute of rights under:

• the Basic Conditions of Employment Act (BCEA)
• a collective agreement under the BCEA
• a sectoral determination or a Wage Determination
• the Occupational Health and Safety Act
• Approach the employer directly. You may be able to negotiate an agreement between the worker and the employer.

• If you have no success, refer the dispute to the Department of Labour.

If it is a matter of enforcing a Bargaining Council Agreement or it is a dispute of rights under a Bargaining Council Agreement:

• Approach the employer directly. You may be able toget the employer to comply with the terms of the Agreement, or resolve the dispute by negotiating between the worker and the employer.
• If you have no success, refer the problem to the Bargaining Council for enforcement or dispute resolution.

If it is a matter of enforcing a right or a dispute of rights under the Labour Relations Act (LRA) where no bargaining council exists in that sector:

• Approach the employer directly. You may be able toget the employer to comply with the LRA, or resolve the dispute by negotiating between the worker and the employer.
• If you have no success, refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. The CCMA was set up to help employers and workers to resolve disputes quickly, without having to go to court or take industrial action. Clearly, where there is a Bargaining Council with an established conciliation structure, the dispute must b