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Chapter 6 - Labour Law

Laws about terms and conditions of employment

There are different laws about conditions of employment. Employees' 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 (See Summary of provisions in the BCEA, page 171)

The Merchant Shipping Act covers conditions of employment for employees who are at sea within South Africa's territorial waters while 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 employees’ rights in health and safety at work.

Wage regulating measures

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. They contain different conditions of employment for different employees in different sectors. 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 employees, including casual employees.
  
• Remuneration: - describes minimum wages for different categories of employees and includes monies received by the employee excluding ex gratia payments or bonuses to assist employees.
  
• Payment of remuneration - how employees should be paid their wages
  
• Deductions - from an employee’s wage
  
• Hours of work and pay – this includes public holidays, Sundays, etc
  
• Annual leave and sick leave
  
• Piece work and commission work:
  Piece-work means that an employee is paid for the number of items produced and not for the hours worked.
  
• Termination of contract of employment - how much notice an employer must give
  
• Prohibition of employment – for example, pregnant women and children may not be allowed to do certain work,
  
• Dispute resolution - the Labour Relations Act allows employees and employers to collectively agree to dispute resolution procedures that differ from those in the Act.

If there are any particular terms or conditions of employment that are not specified by a Bargaining Council Agreement or a sectoral determination, then those terms or conditions of employment in the Basic Conditions of Employment Act will apply to employees.

How do you know which law applies to a worker?

All employees will fall under one of the above laws about conditions of employment. Many employees 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 an employee, then that Agreement applies to that employee. 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, unless they are specifically excluded by the BCEA. .

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 which are identified in the Basic Conditions of Employment Act.

CHART: Finding out an employee's terms & conditions of employment