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Chapter 6 - Labour Law

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.

• Employees 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. Where a public holiday falls on a Sunday, the following Monday, is regarded as a public holiday.
  

The public holidays are:

1 January	New Year's Day
21 March Variable	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 if the law provides for this. Payment in kind means that an employer pays an employee his or her wage through giving him or her housing, use of land or food, as well as money.

However, this can only be done if the Minister of Labour decides that payment in kind should apply to a certain sector. The Minister will also decide what formula to use to determine the value of 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 employeer gives consent in writing

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.)
  
• A rest period of 1 hour is required after every 5 hours worked. This can be reduced to 30 minutes, if the employee and employer agree in writing.
  
• Every employee 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 an employee 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 employee is entitled to a weekly rest period of 36 continuous hours. For many employees, 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 employee is entitled to 21 consecutive days paid leave per year. This is the equivalent of three weeks time off.
  
• The employee 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 an employee 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 employee 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 employee’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 Employees' 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 an employee gets a holiday every year, and gets normal pay for those days. If an employee doesn't take leave, or all the leave, the employer will not pay out leave pay instead of leave.
  
• If an employee leaves a job without having taken all the leave that is due to them, the employee must be paid for the days of leave that they have not taken. This is called pro rata leave pay.

Sick leave

• A permanent employee is entitled to paid sick leave of 30 days over any 3-year cycle (36 days if the employee works a 6-day week). During the first 6 months that an employee 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 employee 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 employees are entitled to 1 day's sick leave for every 26 days worked over the first 6-month cycle.
  
• Employees who are sick for more than 2 days may be required to produce a doctor's certificate. If an employee lives on the premises and it is difficult for them to get to a doctor (for example, in rural areas), the employee does not have to produce a certificate unless the employer gives the employee reasonable assistance to get the certificate.
  
• Sick leave pay is not a bonus on top of normal pay. It simply means that if an employee is genuinely sick and has to take time off work, the employer must pay the employee 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 employee 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 employees are entitled to 4 months unpaid maternity leave. During this time, the employee may draw maternity benefits from the Unemployment Insurance Fund.

See UIF Maternity benefits.

Unpaid leave

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

Absent without leave

If a employee takes leave without getting permission from the employer and is not sick, the employer does not have to pay the employee for the time taken off. If the employee 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 employee 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 employee notice. But if the worker returns, fair dismissal rules must be followed.

Notice

• During the first six months of employment, employees 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, employees will be entitled to 2 week's notice.
  
• If they have worked for more than one year, employees 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 an employee resigns without giving the employer the correct amount of notice, for example one week, the employer can claim one week's pay from the employee.
  
• Notice must be in writing.
  
• Neither the employer nor the employee can give notice while the employee is on annual leave.

See Problem 2: Employee wants to claim notice pay and leave pay.

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

Administration

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

Before the job starts, the employer must give the employee 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 employee will get
• the notice period

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

Prohibition of victimisation and exploitation

The employer is not allowed to victimise a employee who refuses to do something that is against the BCEA. For example, if a employee 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 employee work overtime without the employee's consent.