BASIC CONDITIONS OF EMPLOYMENT BILL 1997

TABLE OF CONTENTS

Chapter One
Purpose and Application of this Act

1. Purpose of this Act
2. Application of this Act
3. Inclusion of provisions in contracts of employment
4. This Act not affected by agreements

Chapter Two
The Regulation of Working Time

5. Application of this Chapter
6. Regulation of working time
7. Interpretation of day
8. Ordinary hours of work
9. Overtime
10. Compressed working week
11. Averaging of hours of work
12. Determination of hours of work by Minister
13. Meal intervals
14. Daily and weekly rest period
15. Pay for work on Sundays
16. Night work
17. Public holidays

Chapter Three
Leave

18. Application of this Chapter
19. Annual leave
20. Pay for annual leave
21. Sick leave
22. Proof of incapacity
23. Application to occupational accidents or diseases
24. Maternity leave
25. Protection of employees before and after birth of a child
26. Family responsibility leave

Chapter Four
Particulars of Employment and Remuneration

27. Application of this Chapter
28. Written particulars of employment
29. Informing employees of their rights
30. Keeping of records
31. Payment of remuneration
32. Information about remuneration
33. Deductions and other acts concerning remuneration
34. Calculation of remuneration and wages

Chapter Five
Termination of Employment

35. Application of this Chapter
36. Notice of termination of employment
37. Payment instead of notice
38. Employees in employer-provided accommodation
39. Payments on termination
40. Severance pay
41. Certificate of service

Chapter Six
Prohibition of Employment of Children and Forced Labour

42. Prohibition of employment of children
43. Employment of children of 15 or older
44. Medical examinations
45. Prohibitions
46. Evidence of age
47. Prohibition of forced labour

Chapter Seven
Variation of Basic Conditions of Employment

48. Variation by agreement
49. Variation by the Minister

Chapter Eight
Sectoral Determinations

50. Sectoral determination
51. Investigation
52. Conduct of investigation
53. Preparation of report
54. Making of sectoral determination
55. Period of operation of sectoral determination
56. Legal effect of sectoral determination
57. Employer to keep a copy of sectoral determination

Chapter Nine
Employment Conditions Commission

58. Establishment and functions of Employment Conditions Commission
59. Composition of the Commission
60. Public hearings
61. Report by the Commission

Chapter Ten
Monitoring, Enforcement and Legal Proceedings

62. Appointment of labour inspectors
63. Functions of labour inspectors
64. Powers of entry
65. Powers to question and inspect
66. Co-operation with labour inspectors
67. Securing an undertaking
68. Compliance order
69. Limitations
70. Objections to compliance order
71. Appeals from order of Director-General
72. Order may be made order of Labour Court
73. Consolidation of proceedings
74. Payment of interest
75. Proof of compliance
76. Jurisdiction of the Labour Court
77. Rights of employees
78 Protection of rights
79. Procedure for disputes
80. Burden of proof

Chapter Eleven
General

81. Temporary employment services
82. Deeming of persons as employees
83. Duration of employment
84. Delegation
85. Regulations
86. Codes of good practice
87. Minister's power to add and change footnotes
88 Representation of employees or employers
89. Confidentiality
90. Answers not to be used in criminal prosecutions
91. Obstruction, undue influence and fraud
92. Penalties
93. This Act binds the State
94. Transitional arrangements and amendment and repeal of laws
95. Definitions
96. Short title and commencement

SCHEDULES

Schedule One: Procedures for Progressive Reduction of Maximum Working Hours
Schedule Two: Maximum Permissible Fines that may be imposed for failure to comply with this Act
Schedule Three: Transitional Provisions
Schedule Four: Laws Amended by Section 97(4)
Schedule Five: Laws Repealed by Section 97(5) 

 CHAPTER ONE   PURPOSE AND APPLICATION OF THIS ACT  

1. Purpose of this Act

The purpose of this Act is to advance economic development and social justice by fulfilling the primary objects of this Act which are-

(a) to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution-

(i) by establishing and enforcing basic conditions of employment; and
(ii) by regulating the variation of basic conditions of employment;

(b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation.

2. Application of this Act

(1) This Act applies to all employees and employers except-

(a) members of the National Defence Force, the National Intelligence Agency and the South African Secret Service; and
(b) unpaid volunteers working for an organisation serving a charitable purpose.

(2) The provisions of this Act apply to persons undergoing vocational training except to the extent that any term or condition of their employment is regulated by the provisions of any other law.

(3) The provisions of this Act, other than section 40, do not apply to persons employed on vessels at sea in respect of which the Merchant Shipping Act, 1951 (Act No. 57 of 1951), applies except to the extent provided for in a sectoral determination.

3. Inclusion of provisions in contracts of employment

A basic condition of employment constitutes a term of any contract of employment except to the extent that-

(a) any other law provides a term that is more favourable to the employee;
(b) the basic condition of employment has been replaced, varied, or excluded in accordance with the provisions of this Act; or
(c) a term of the contract of employment is more favourable to the employee than the basic condition of employment.

4. This Act not affected by agreements

This Act or anything done under it takes precedence over any agreement, whether entered into before or after the commencement of this Act.
 

 CHAPTER TWO   THE REGULATION OF WORKING TIME  

5. Application of this Chapter

(1) The provisions of this Chapter, other than section 6, do not apply to-

(a) senior managerial employees;
(b) employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work;
(c) employees who work less than 24 hours a month for an employer.

(2) Sections 8, 9(1), 13(1), 14(1), 16(2) and 17(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.

(3) The Minister, on the advice of the Commission, must make a determination that excludes the application of this Chapter or any provision of it to any category of employee earning in excess of an amount stated in that determination.

(4) Before the Minister issues a notice in terms of subsection (3), the Minister must-

(a) publish in the Gazette a draft of the proposed notice; and
(b) invite interested persons to submit written representations on the proposed notice within a reasonable period.

6. Regulation of working time

Every employer must regulate the working time of each employee-

(a) in accordance with the provisions of any Act governing occupational health and safety;
(b) with due regard to the health and safety of employees;
(c) with due regard to the Code of Good Practice on the Regulation of Working Time issued in terms of section 86(1)(a); and
(d) with due regard to the family responsibilities of employees.

7. Interpretation of day

For the purposes of sections 8, 9 and 10, "day" means a period of 24 hours measured from when the employee commences work.

8. Ordinary hours of work

(1) Subject to the provisions of this Chapter, an employer may not require or permit an employee to work more than-

(a) 45 hours in any week; and
(b) nine hours on any day if the employee works on five days or fewer in a week; or
(c) eight hours on any day if the employee works on more than five days in a week.

By agreement, an employee's ordinary hours of work in terms of subsection (2) may be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.

Schedule 1, establishes procedures for the progressive reduction of maximum ordinary hours of work to a maximum of 40 ordinary hours of work per week and eight ordinary hours of work per day.

9. Overtime

(1) Subject to the provisions of this Chapter, an employer may not require or permit an employee-

(a) to work overtime except in accordance with an agreement;
(b) to work more than-

(i) three hours' overtime a day; or
(ii) ten hours' overtime a week.

(2) An employer must pay an employee at least one and one-half times the employee's wage for overtime worked.

(3) Despite subsection (2), an agreement may provide for an employer to-

(a) pay an employee not less than the employee's ordinary wage for overtime worked and grant the employee at least 30 minutes' time off on full pay for every hour of overtime worked; or
(b) grant an employee at least 90 minutes' paid time off for each hour of overtime worked.

(4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it; or
(b) A agreement in writing may increase the period contemplated by subparagraph (a) to 12 months.

(5) An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.

10. Compressed working week

(1) An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of section 13, without receiving overtime pay.

(2) An agreement in terms of subsection(1), may not require or permit an employee who is bound by an agreementcontemplated in subsection (1) to work-

(a) more than 45 ordinary hours of work in any week;
(b) more than ten hours' overtime in any week; or
(c) on more than five days in any week.

11. Averaging of hours of work

(1) Despite sections 8(1) and (2) and 9(1)(b), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement.

(2) An employer may not require or permit an employee who is bound by a collective agreement in terms of subsection (1) to work more than-

(a) an average of 45 ordinary hours of work in a week over the agreed period;
(b) an average of five hours' overtime in a week over the agreed period.

(3) A collective agreement in terms of subsection (1) lapses after 12 months.

(4) Subsection (3) only applies to the first two collective agreements concluded in terms of subsection (1).

12. Determination of hours of work by Minister

(1) Despite the provisions of this Chapter, the Minister, on grounds of health and safety may prescribe by regulation the maximum permitted hours of work, including overtime, that any category of employee may work-

(a) daily, weekly or during any other period specified in the regulation; and
(b) during a continuous period without a break.

(2) A regulation in terms of subsection (1) may not prescribe maximum hours in excess of those permitted in sections 8 and 9.

(3) A regulation in terms of subsection (1) may be made only-

(a) on the advice of the chief inspector appointed in terms of section 27 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993) or the chief inspector appointed in terms of section 48 of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996); and
(b) after consulting the Commission.

13. Meal intervals

(1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.

(2) During a meal interval, the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee.

(3) An employee must be remunerated-

(a) for a meal interval in which the employee is required to work or is required to be available for work; and
(b) for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.

(4) For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes.

(5) An agreement in writing may-

(a) reduce the meal interval to not less than 30 minutes;
(b) dispense with a meal interval for an employee who works fewer than six hours on a day.

14. Daily and weekly rest period

(1) An employer must allow an employee-

(a) a daily rest period of at least twelve consecutive hours between ending and recommencing work; and
(b) a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday.

(2) By written agreement, a daily rest period in terms of subsection (1)(a) may be reduced to 10 hours for an employee-

(a) who lives on the premises at which the workplace is situated; and
(b) whose meal interval lasts for at least three hours.

(3) Despite subsection (1)(b), an agreement in writing may provide for-

(a) a rest period of at least 60 consecutive hours every two weeks; or
(b) an employee's weekly rest period to be reduced by up to eight hours in any week if the rest period in the following weekis extended equivalently.

15. Pay for work on Sundays

(1) An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one- half times the employee's wage for each hour worked.

(2) If an employee works less than the employee's ordinary shift on a Sunday and the payment that the employee is entitled to in terms of subsection (1) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage.

(3) Despite subsections (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subsections (1) and (2).

(4) Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of section 8(1) and (2), but is taken into account in calculating the overtime worked by the employee in terms of section 9(1)(b).

(5) If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day.

(6) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it;
(b) An agreement in writing may increase the period contemplated by subparagraph (a) to 12 months.

16. Night work

(1) In this section, "night work" means work performed after 18:00 and before 06:00 the next day.

(2) An employer may only require or permit an employee to perform night work, if so agreed, and if-

(a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
(b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.

(3) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must-

(a) inform the employee of any health and safety hazards associated with the work that the employee is required to perform;
(b) at the request of the employee, enable the employee to undergo a medical examination concerning those hazards-

(i) before the employee starts, or within a reasonable period of the employee starting, such work; and
(ii) at appropriate intervals while the employee continues to perform such work; and

(c) transfer the employee to suitable day work within a reasonable time if-

(i) the employee suffers from a health condition associated with the performance of night work; and
(ii) it is practicable for the employer to do so.

(4) For the purposes of subsection (3) an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year.

(5) The Minister, after consulting the Commission, may make regulations relating to the conduct of medical examinations for employees who perform night work.

Public holidays

An employer may not require an employee to work on a public holiday except in accordance with an agreement.

If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay-

(a)an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;
(b)an employee who does work on the a public holiday-

(i)at least double the amount referred to in paragraph (a); or
(ii)if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.

If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to-

(a)the employee's ordinary daily wage; plus
(b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.

(4) An employer must pay an employee for a public holiday on the employee's usual pay day.

(5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.

CHAPTER THREE   LEAVE

18. Application of this Chapter

(1) The provisions of this Chapter do not apply to an employee who works less than 24 hours a month for an employer.

(2) Unless an agreement provides otherwise, the provisions of this Chapter do not apply to leave granted to an employee in excess of the employee's entitlement under this Chapter.

19. Annual leave

(1) In this Chapter, "annual leave cycle" means the period of 12 months' employment with the same employer immediately following-

(a) an employee's commencement of employment; or
(b) the completion of that employee's prior leave cycle.

(2) An employer must grant an employee at least-

(a) 21 consecutive days' annual leave on full remuneration in respect of each annual leave cycle; or
(b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid.
(c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.

(3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection (2) on consecutive days.

(4) An employer must grant annual leave not later than six months after the end of the annual leave cycle.

(5) An employer may not require or permit an employee to take annual leave during-

(a) any other period of leave to which the employee is entitled in terms of this Chapter; or
(b) any period of notice of termination of employment.

(6) Despite subsection (5), at the employee's written request, an employer must permit an employee to take leave during a period of unpaid leave.

(7) An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave on full remunerationgranted to the employee at the employee's request in that leave cycle.

(8) An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee's annual leave on which the employee would ordinarily have worked.

(9) An employer may not require or permit an employee to work for the employer during any period of annual leave.

(10) Annual leave must be taken-

(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.

(11) An employer may not pay an employee instead of granting paid leave in terms of this section except-

(a) on termination of employment; and
(b) in accordance with section 39(b) and (c).

20. Pay for annual leave

(1) An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated-

(a) at the employee's rate of remunerationimmediately before the beginning of the period of annual leave; and
(b) in accordance with section 34.

(2) An employer must pay an employee leave pay-

(a) before the beginning of the period of leave; or
(b) by agreement, on the employee's usual pay day.

21. Sick leave

(1) In this Chapter, "sick leave cycle" means the period of 36 months' employment with the same employer immediately following-

(a) an employee's commencement of employment;
(b) the completion of that employee's prior sick leave cycle.

(2) During every sick leave cycle, an employee is 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.

(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked.

(4) During an employee's first sick leave cycle, an employer may reduce the employee's entitlement to sick leave in terms of subsection (2) by the number of days' sick leave taken in terms of subsection (3).

(5) Subject to section 22, an employer must pay an employee for a day's sick leave----

(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee's usual pay day.

(6) An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this section if-

(a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and
(b) the employee's entitlement to pay-

(i) for any day's sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and
(ii) over the sick leave cycle is at least equivalent to the employee's entitlement in terms of subsection (2).

22. Proof of incapacity

(1) An employer is not required to pay an employee in terms of section 21 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury.

(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.

(3) If it is not reasonably practicable for an employee who lives on the employer's premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.

23. Application to occupational accidents or diseases

Sections 21 and 22 do not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), or the Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973), except in respect of any period during which no compensation is payable in terms of those Acts.

24. Maternity leave

(1) An employee is entitled to at least four consecutive months' maternity leave.

(2) An employee may commence maternity leave-

(a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or
(b) on a date from which a medical practitioner or midwife certifies that it is necessary for the employee's health or that of her unborn child.

(3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so.

(4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or still birth.

(5) An employee must notify an employer of the date on which the employee intends to -

(a) commence maternity leave; and
(b) return to work after maternity leave.

(6) Notification in terms of subsection (5) must be given-

(a) at least four weeks before the employee intends to commence maternity leave; or
(b) if it is not reasonably practicable to do so, as soon as is reasonably practicable;
(c) in writing unless the employee is unable to do so.

25. Protection of employees before and after birth of a child

(1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.

(2) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if-

(a) the employee is required to perform night work, as defined in section 16(1) or her work poses a danger to her health or safety or that of her child; and
(b) it is practicable for the employer to do so.

26. Family responsibility leave

(1) This section applies to an employee-

(a) who has been in employment with an employer for longer than four months; and
(b) who works on at least four days a week for that employer.

(2) During each annual leave cycle, an employer, at the request of an employee, must grant the employee three days' paid leave, which the employee is entitled to take-

(a) when the employee's child is born;
(b) when the employee's child is sick; or
(c) in the event of the death of-

(i) the employee's spouse or life partner; or
(ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

(3) Subject to subsection (3), an employer must pay an employee for a day's family responsibility leave-

(a) the wage the employee would ordinarily have received for work on that day; and
(b) on the employee's usual pay day.

(4) An employee may take family responsibility leave in respect of the whole or a part of a day.

(5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection (1) for which the leave was required.

(6) An employee's unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues.

(7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section.

CHAPTER FOUR   PARTICULARS OF EMPLOYMENT AND REMUNERATION  

27. Application of this Chapter

(1) The provisions of this Chapter do not apply to an employee who works less than 24 hours a month for an employer.

(2) The provisions of sections 28(1)(n), (o) and (p), 29, 30 and 32 do not apply to -

(a) an employer who employs fewer than five employees;and
(b) the employment of a domestic worker.

28. Written particulars of employment

(1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing-

(a) the full name and address of the employer;
(b) the name and occupation of the employee, or a brief description of the work for which the employee is employed;
(c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this;
(d) the date on which the employment began;
(e) the employee's ordinary hours of workand days of work;
(f) the employee's wage or the rate and method of calculating wages;
(g) the rate of pay for overtime work;
(h) any other cash payments that the employee is entitled to;
(i) any payment in kind that the employee is entitled to and the value of the payment in kind;
(j) how frequently remuneration will be paid;
(k) any deductions to be made from the employee's remuneration;
(l) the leave to which the employee is entitled;
(m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate;
(n) a description of any council or sectoral determination which covers the employer's business;
(o) any period of employment with a previous employer that counts towards the employee's period of employment;
(p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

(2) When any matter listed in subsection (1) changes-

(a) the written particulars must be revised to reflect the change; and
(b) the employee must be supplied with a copy of the document reflecting the change.

(3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language the employee understands.

(4) Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment.

29. Informing employees of their rights

An employer must display at the workplace where it can be read by employees a statement in the prescribed form of the employee's rights under this Act in the official languages which are spoken in the workplace.

30. Keeping of records

(1) Every employer must keep a record containing at least the following information-

(a) the employee's name and occupation;
(b) the time worked by each employee;
(c) the remuneration paid to each employee;
(d) the date of birth of any employee under 18 years of age; and
(e) any other prescribed information.

(2) A record in terms of subsection (1) must be kept by the employer for a period of three years from the date of the last entry in the record.

(3) No person may make a false entry in a record maintained in terms of subsection (1).

(4) An employer who keeps a record in terms of this section is not required to keep any other record of time worked and remunerationpaid as required by any other employment law.

31. Payment of remuneration

(1) An employer must pay to an employee any remuneration that is paid in money-

(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee-

(a) at the workplace or at a place agreed to by the employee;
(b) during the employee's working hours or within 15 minutes of the commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration no later than seven days after-

(a) the completion of the period for which the remunerationis payable; or
(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

32. Information about remuneration

(1) An employer must give an employee the following information in writing on each day the employee is paid -

(a) the employer's name and address;
(b) the employee's name and occupation;
(c) the period for which the payment is made;
(d) the employee's remuneration in money;
(e) the amount and purpose of any deduction made from the remuneration;
(f) the actual amount paid to the employee; and
(g) if relevant to the calculation of that employee'sremuneration-

(i) the employee's rate of remunerationand overtime rate;
(ii) the number of ordinary and overtime hours worked by the employee during the period for which the payment is made;
(iii) the number of hours worked by the employeeon a Sunday or public holiday during that period; and
(iv) if an agreement to average working time has been concluded in terms of section 11, the total number of ordinary and overtime hours worked by the employee in the period of averaging.

(2) The written information required in terms of subsection (1) must be given to each employee-

(a) at the workplace or at a place agreed to by the employee; and
(b) during the employee's ordinary working hours or within 15 minutes of the commencement or conclusion of those hours.

 33. Deductions and other acts concerning remuneration

(1) An employer may not make any deduction from an employee's remuneration unless-

(a) the employee gives prior written agreement, subject to subsection (2), to the deduction in respect of a debt specified in the agreement; or
(b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award.

(2) A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if-

(a) the loss or damage occurred in the course of employment and was due to the fault of the employee;
(b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made;
(c) the total amount of the debt does not exceed the actual amount of the loss or damage; and
(d) the total deductions from the employee's remuneration in terms of this subsection do not exceed one-quarter of the employee'sremuneration in money.

(3) A deduction in terms of subsection 1(a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods.

(4) An employer who deducts an amount from an employee'sremuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award.

(5) An employer may not require or permit an employee to-

(a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration; or
(b) acknowledge receipt of an amount greater than the remuneration actually received.

34. Calculation of remuneration and wages

(1) An employee's wage is calculated by reference to the number of hours an employee ordinarily works.

(2) For the purposes of calculating the wageof an employee by time, an employee is deemed ordinarily to work-

(a) 45 hours in a week

unless
 the employee ordinarily works a lesser number of hours in a week;
(b) (i) nine hours on a day, or seven and a half hours in the case of an employee who works on more than five days a week, or the number of hours that an employee works in a day in terms of an agreement concluded in accordance with section 10; unless
(ii) the employee ordinarily works a lesser number of hours on a day.

(3) An employee's monthly remunerationor wage is four and one-third times the employee's weekly remuneration or wage, respectively.

(4) If an employee's remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee's remuneration or wage fluctuates significantly from period to period, any payment to that employee in terms of this Act must be calculated by reference to the employee'sremuneration or wage during-

(a) the preceding 13 weeks; or
(b) if the employee has been in employment for a shorter period, that period.

(5) For the purpose of calculating an employee'sannual leave pay in terms of section 20, notice pay in terms of section 37 or severance pay in terms of section 40, an employee's remuneration-

(a) includes the cash value of any payment in kind that forms part of the employee's remuneration unless the employeereceives that payment in kind; but
(b) excludes-

(i) gratuities;
(ii) allowances paid to an employee for the purposes of enabling an employee to work; and
(iii) any discretionary payments not related to the employee's hours of work or work performance.

CHAPTER FIVE   TERMINATION OF EMPLOYMENT  

35. Application of this Chapter

The provisions of this Chapter do not apply to an employee who works less than four hours a week for an employer.

36. Notice of termination of employment

(1) Subject to section 37, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-

(a) one week, if the employee has been employed for four weeks or less;
(b) two weeks, if the employee has been employed for more than four weeks but not more than one year;
(c) one month, if the employee-

(i) has been employed for one year or more; or
(ii) is a farm worker or domestic workerwho has been employed for more than four weeks.

(2) A collective agreement may permit a notice period shorter than that required by subsection (1).

(3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer.

(4) (a) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee.

(b) If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands.

(5) Notice of termination of a contract of employment given by an employer must-

(a) not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and
(b) not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three, except sick leave.

(6) Nothing in this section affects the right-

(a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act or any other law; and
(b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law.

37. Payment instead of notice

(1) Instead of giving an employee notice in terms of section 36, an employer may pay the employee the remunerationthe employee would have received, calculated in accordance with section 34, if the employee had worked during the notice period.

(2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise.

38. Employees in employer-provided accommodation

(1) If the employer of an employee who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer terminates the contract of employment of that employee-

(a) before the date on which the employer was entitled to do so in terms of section 36; or
(b) in terms of section 37; the employer is required to provide the employee with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated.

(2) If an employee elects to remain in accommodation in terms of subsection (1) after the employer has terminated the employee'scontract of employment in terms of section 37, the remunerationthat the employer is required to pay in terms of section 37 is reduced by that portion of the remuneration that represents the agreed value of the accommodation for the period that the employee remains in the accommodation.

39. Payments on termination

On termination of employment, an employer must pay an employee-

(a) for any paid time off that the employee is entitled to in terms of section 9(3) or 15(3) that the employee has not taken;
(b) remuneration calculated in accordance with section 20(1) for any period of annual leave due in terms of section 19(2) that the employee has not taken; and
(c) if the employee has been in employment longer than four months, in respect of the employee's annual leave entitlement during an incomplete annual leave cycle as defined in section 19(1)-

(i) one day's remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or
(ii) remuneration calculated on any basis that is at least as favourable to the employee as that calculated in terms of sub-paragraph (i).

40. Severance pay

(1) For the purposes of this section, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer.

(2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with section 34.

(3) The Minister, after consulting NEDLACand the Public Service Co-ordinating Bargaining Council, may vary the amount of severance pay in terms of subsection (2) by notice in the Gazette.

(4) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer is not entitled to severance pay in terms of subsection (2).

(5) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law.

(6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to-

(a) a council, if the parties to the disputefall within the registered scope of that council; or
(b) the CCMA, if no council has jurisdiction.

(7) The employee who refers the disputeto the council or the CCMA must satisfy it that a copy of the referral has been served on all the other parties to the dispute.

(8) The council or the CCMA must attempt to resolve the dispute through conciliation.

(9) If the dispute remains unresolved, the employee may refer it to arbitration.

(10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount.

41. Certificate of service

On termination of employment an employee is entitled to a certificate of service stating-

(a) the employee's full name;
(b) the name and address of the employer;
(c) a description of any council or sectoral employment standard by which the employer's business is covered;
(d) the date of commencement and date of termination of employment;
(e) the title of the job or a brief description of the work for which the employee was employed at date of termination;
(f) the remuneration at date of termination; and
(g) if the employee requests it, the reason for termination of employment.

CHAPTER SIX   PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR  

42. Prohibition of employment of children

(1) No person may employ a child-

(a) who is under 15 years of age; or
(b) who is under the minimum school-leaving age in terms of any law, if this is 15 or older.

(2) A person who employs a child in contravention of subsection (1) commits an offence.

43. Employment of children of 15 or older

(1) No person may employ a child in employment-

(a) that is inappropriate for a person of that age;
(b) that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development.

(2) Subject to subsection (1), the Minister, on the advice of the Commission, may make regulations to prohibit or place conditions on the employment of children who are at least 15 years of age and no longer subject to compulsory schooling in terms of any law.

(3) A person who employs a child in contravention of subsection (1) or (2) commits an offence.

44. Medical examinations

The Minister, after consulting the Commission, may make regulations relating to the conduct of medical examinations of children in employment.

45. Prohibitions

It is an offence to-

(a) assist an employer to employ a child in contravention of this Act; or
(b) discriminate against a person who refuses to permit a child to be employed in contravention of this Act.

46. Evidence of age

In any proceedings in terms of this Act, if the age of an employee is a relevant factor for which insufficient evidence is available, it is for the party who alleges that the employment complied with the provisions of this Chapter to prove that it was reasonable for that party to believe, after investigation, that the person was not below the permitted age in terms of section 42 or 43.

47. Prohibition of forced labour

(1) Subject to the Constitution, all forced labour is prohibited.

(2) No person may for his or her own benefit or for the benefit of someone else, cause, demand or impose forced labour in contravention of subsection (1).

(3) A person who contravenes subsection (1) or (2) commits an offence.

CHAPTER SEVEN

VARIATION OF BASIC CONDITIONS OF EMPLOYMENT
 
 

48. Variation by agreement

(1) A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment in so far as the provision of the collective agreement by which that is to be done, does not-

(a) conflict with the provisions of sections 6 and 16(3) and (4), Chapter Six and any regulation made in terms of section 12;
(b) reduce employees' annual leave to less than two weeks;
(c) adversely affects any provision of this Act regulating maternity leave, or, except to the extent permitted by this Act, any provision regulating sick leave.

(2) A collective agreement, other than an agreement contemplated in subsection (1), may replace or exclude a basic condition of employment, to the extent permitted by this Actor a sectoral determination.

(3) An employer and an employee may agree to replace or exclude a basic condition of employment to the extent permitted by this Act or a sectoral determination.

 No provision in this Act or a sectoral determination may be interpreted as permitting-

(a) contract of employment or agreement between an employer and an employee contrary to the provisions of a collective agreement;
(b) collective agreement contrary to the provisions of a collective agreement concluded in a bargaining council.

49.Variation by the Minister

1. If it is consistent with the purpose of this Act, the Minister, may make a determination to replace or exclude any basic condition of employment provided for in this Act in respect of-

(a)any category of employees or category of employers; or
(b)any employer or employee in respect of whom an application is made by-

(i)any employer;
(ii)any registered employers' organisation;
(iii)any employer and any registered employers' organisation.

2. A determination in terms of subsection (1) may not be made in respect of sections 43 and 47.

The Minister may request the Commission-

(a) to advise on any application made in terms of subsection (1);
(b) to prepare guidelines for the consideration of applications made in terms of subsection (1).

A determination in terms of subsection (1) that applies to the public service must be made by the Minister in consultation with the Minister for the Public Service and Administration.

2.If a determination in terms of subsection (1) concerns the employment of children, the Minister must consult with the Minister of Welfare and Population Development before making the determination.

3. A determination in terms of subsection (1) may not be issued unless:

1. the application has the consent of any registered trade union that represents the employees in respect of whom the determination is to apply; or
2. if no consent has been obtained in terms of paragraph (a)¾
1. the employer or employers' organisation has served a copy of the application, together with a notice stating that representations may be made to the Minister, on any registered trade union that represents employees affected by the application; and
2. the employer or every employer on behalf of whom an employers' organisation has made an application in terms of subsection (1), has displayed a copy of the application in a conspicuous place accessible to employees at each workplace affected by the application.

(7) A determination made in terms of subsection (1)-

(a) may be issued on any conditions and for a period determined by the Minister;
(b) may take effect on a date earlier than the date on which the determination is given, but not earlier than the date on which application was made;
(c) must be issued in a notice in the prescribed form if the determination is made in respect of an application made by an employer;
(d) must be published in a notice in the Gazetteif the determination is made in respect of an application made by an employers' organisation.

(8) (a) On application by any affected party and after allowing other affected parties a reasonable opportunity to make representations, the Minister may amend or withdraw a determination issued in terms of subsection (1).

(b) For the purposes of subparagraph (a), an affected party is-

(i) the employer or employers' organisation that made the application;
(ii) a registered trade union representing employees covered by the determination, or an employee covered by the determination who is not a member of a registered trade union.

(9) An employer in respect of whom a determination has been made must-

(a) display a copy of the notice conspicuously at the workplace where it can be read by the employees to whom the determination applies;
(b) notify each employee in writing of the fact of the determination and of where a copy of the notice has been displayed; and
(c) give a copy of the notice to-

(i) any registered trade union representing those employees;
(ii) any trade union representative representing those employees; and
(iii) any employee who requests a copy.

CHAPTER EIGHT   SECTORAL DETERMINATIONS  
 

50. Sectoral determination

(1) The Minister may make a sectoral determinationestablishing basic conditions of employment for employeesin a sector and area.

(2) A sectoral determination must be made in accordance with the provisions of this Chapter and by notice in the Gazette.

51. Investigation

(1) Before making a sectoral determination, the Minister must direct the Director-General to investigate conditions of employment in the sector and area concerned.

 (2) The Minister must determine terms of reference for the investigation, which must include-

 (a) the sector and area to be investigated;
 (b) the categories or classes of employeesto be included in the investigation; and
 (c) the matters to be investigated, which may include any matter listed in section 54(2).

 (3) The Minister must publish a notice in the Gazette setting out the terms of reference of the investigation and inviting written representations by members of the public.

 (4) If an organisation representing employers or employees in a sector and area makes a written request to the Minister to investigate conditions of employment in that sector and area, the Minister must either-

 (a) direct the Director-General to conduct an investigation; or
 (b) request the Commission to advise the Ministeron whether the requested investigation ought to be conducted.

  52. Conduct of investigation

 (1) For the purposes of conducting an investigation in terms of section 51(1) the Director-General may-

 (a) question any person who may be able to provide information relevant to any investigation; or
 (b) require, in writing, any employer or employee in a sector and area that is being investigated or any other person to furnish any information, book, document or object that is material to the investigation within a specified period, which must be reasonable.

 (2) A person may not refuse to answer any relevant question by the Director-General that he or she is legally obliged to answer.

 53. Preparation of report

 (1) On completion of an investigation, and after considering any representations made by members of the public, the Director-Generalmust prepare a report.

 (2) A copy of the report must be submitted to the Commission for its consideration.

 (3) When advising the Minister on the publication of a sectoral determination, the Commission must consider in respect of the sector and area concerned-

 (a) the report prepared in terms of section 53(1);
 (b) the ability of employers to carry on their business successfully;
 (c) the operation of small, medium or micro-enterprises, and new enterprises;
 (d) the cost of living;
 (e) the alleviation of poverty;
 (f) conditions of employment;
 (g) wage differentials and inequality;
 (h) the likely impact of any proposed condition of employment on current employment or the creation of employment;
 (i) the possible impact of any proposed condition of employment on the health, safety or welfare of employees.
 (j) any other relevant information made available to the Commission.

 (4) The Commission must prepare a report for the Minister containing recommendations on what matters should be included in a sectoral determination for the relevant sectorand area.

  54. Making of sectoral determination

 (1) After considering the report and the report and recommendations of the Commission, the Minister may make a sectoral determination for one or more sector and area.

 (2) If the Minister does not accept a recommendation of the Commission made in terms of section 62(3), the Ministermust refer the matter to the Commission for its reconsideration indicating the matters on which the Minister disagrees with the Commission.

 (3) After considering the further report and recommendations of the Commission, the Minister may make a sectoral determination.

 (3) A sectoral determination may in respect to the sector and area concerned-

 (a) set minimum terms and conditions of employment, including minimum rates of remuneration;
 (b) provide for the adjustment of minimum rates of remuneration;
 (c) regulate the manner, timing and other conditions of payment of remuneration;
 (d) prohibit or regulate payment of remuneration in kind;
 (e) require employers to keep employment records;
 (f) require employers to provide records to their employees;
 (g) prohibit or regulate task-based work, piecework, home work and contract work;
 (h) set minimum standards for housing and sanitation for employees who reside on their employers' premises;
 (i) regulate payment of travelling and other work-related allowances;
 (j) specify minimum conditions of employment for trainees;
 (k) specify minimum conditions of employment for persons other than employees;
 (l) regulate training and education schemes;
 (m) regulate pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds; and
 (n) regulate any other matter concerning remunerationor other terms or conditions of employment.

 (3) Any provision of a sectoral determinationmay apply to all or some of the employers and employees in the sectorand area concerned.

 (4) The Minister may not publish a sectoral determination -

 (a) covering employees and employers who are bound by a collective agreement concluded at a bargaining council;
 (b) regulating any matter in a sector and area in which a statutory council is established and in respect of which that statutory council has concluded a collective agreement;
 (c) regulating any matter regulated by a sectoral determination for a sector and area which has been in effect for less than 12 months.

  55. Period of operation of sectoral determination

 (1) The provisions of a sectoral determinationremain binding until they are amended or superseded by a new or amended sectoral determination, or they are cancelled or suspended by the Minister.

 (2) If a collective agreement contemplated by section 54(5)(a) or (b) is concluded, the provisions of a sectoral determination cease to be binding upon employers and employeescovered by the agreement.

 (3) The Minister, by notice in the Gazette, may-

 (a) cancel or suspend any provision of a sectoral determination, either in the sector and area as a whole or in part of the sector or in a specific area; or
 (b) correct or clarify the meaning of any provision of a sectoral determination as previously published.

 (4) Before publishing a notice of cancellation or suspension in terms of subsection (3)(a) the Minister, by notice in the Gazette, must announce the intention to do so, and allow an opportunity for public comment.

 56. Legal effect of sectoral determination

 If a matter regulated in this Act is also regulated in terms of a sectoral determination, the provision in the sectoral determination prevails.

  57. Employer to keep a copy of sectoral determination

 Unless a sectoral determination provides otherwise, every employer on whom the sectoral determinationis binding must-

 (a) keep a copy of that sectoral determinationavailable in the workplace at all times;
 (b) make that copy available for inspection by an employee; and
 (c) give a copy of that sectoral determination-

(i) to an employee who has paid the prescribedfee; and
(ii) free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum

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