Chapter 6 - Labour Law
All employees are covered by the BCEA (No 75 of 1997), except:
People earning above a certain amount
If a person is earning a gross salary of more than R172,000 per year (or R14,333 per month) then the following sections of the BCEA will not apply to them:
Part-time, casual and temporary employees:
A part-time employee is permanently employed, but only works part of a working day or working week.
A casual employee is employed on a short term basis, 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 and Sunday rates.
A temporary employee is not permanently employed, but only works for a specific length of time or until a specific job is completed. This is often referred to as a ‘fixed term contract’ of employment.
In most cases, part-time, casual and temporary employees will be entitled to the same benefits as other employees, but on a pro rata basis. They are excluded from some provisions of the BCEA, for example, they are not entitled to family responsibility leave.
Generally the temporary or casual employee will be entitled to one days annual leave for every 17 days worked and one days sicl leave for every 26 days worked for the3 same employer.
Piece work means that an employee is not paid according to the hours that he or she works. The employee is paid for the number of items produced. For example, seasonal farmworkers may be paid for the amount of fruit they pick provided they earn at least the minimum wage laid down for that industry or sector.
Freelance or out-sourcing
An employer may pay someone who is not an employee in the company, to do work. This person is not an employee, but is running their own small business and is often referred to as an independent contractor. The contractor is generally paid for producing an agreed level of work or providing a service and is not supervised or controlled by the employer. The independent contractor is not covered by the BCEA. 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 Sakumsi does not have to make sure that Trevor's pay and working conditions are according to the BCEA.
Certain rights in the BCEA are fundamental and will not be able to be varied (for example, the prohibition on employing child labour).
In a collective agreement, for example a Bargaining Council Agreement, workers may agree to conditions that are different 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 an employee’s annual leave (to less than 2 weeks), maternity leave or sick leave.
Employees 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:
So a employee who is covered by the BCEA has the conditions of employment as specified in the Act, unless:
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.
The BCEA and the Labour Relations Act aim to promote collective bargaining, and therefore allow variation of certain specified conditions through collective bargaining between an employer and employees 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 employee 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 , employees may agree to conditions that are different to the BCEA conditions. This may be because in exchange they gained something else they wanted more.
The BCEA provides for the establishment of an Employment Conditions Commission. They investigate conditions in a particular industry or sector and make recommendations to the Minister of Labour. When the Minister approves a recommendation from the Commission, this is published in the Government Gazette as a Wage determination or Sectoral determination.
The Minister of Labour may override the provisions of the BCEA for particular groups of employees
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.
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.
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.
An employee whose employer is not obeying the BCEA can complain to the Department of Labour (not the CCMA). 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. This is known as an ‘Undertaking’ from the employer.
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.
If an employee 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 employee in terms of the employee's BCEA rights. For example, if a dismissal is being contested at the CCMA, the CCMA will be able to order an employer to pay outstanding leave owed to the employee. The law is made like this just to simplify procedures and to avoid the matter having to go to both the Department of Labour, the CCMA or the courts.
Employees can also make their own civil case in the Magistrates Court and the Small Claims Court to get money that is owing to them.