58. Establishment and functions of Employment Conditions Commission

 (1) The Employment Conditions Commission is established.

 (2) The functions of the Commission are to advise the Minister-

 (a) on sectoral determinations in terms of Chapter Eight;
 (b) on any matter concerning basic conditions of employment;
 (c)on any matter arising out of the application of this Act;
 (d)on the effect of the policies of government on employment
 (e)on trends in collective bargaining and whether any of those trends undermine the purpose of this Act,
 (f) and the Minister for Welfare and Population Development, on any matter concerning the employment of    children, including the review of section 42;
 (g) and the Minister for the Public Service and Administration, on any matter concerning basic conditions of employment in the public service.

 (4) Subject to the laws governing the public service, the Minister must provide the Commission with the staff that the Minister considers necessary for the performance of its functions.

 (5) The Minister must direct the Director-Generalto undertake research that is required to enable the Commission to perform its functions.

  59. Composition of the Commission

(1)The Minister, after consultation with NEDLAC, must appoint as members of the Commission, three persons who are knowledgeable about the labour market and conditions of employment, including the conditions of employment of vulnerable and unorganised workers, and designate one of them as the Chairperson.

(2) The Minister, in addition, must appoint two more members to the Commission-

(a) one of whom must be nominated by the voting members of NEDLAC representing organised labour;
(b)one of whom must be nominated by the voting members of NEDLAC representing organised business.

(a) must be citizens or permanent residents of the Republic;
(b) must act impartially when performing any function of the Commission;
(c) may not engage in any activity that may undermine the integrity of the Commission; and
(d) must recuse themselves from advising the Ministeron any matter in respect of which they have a direct financial interest or any other conflict of interest.

 (a) the term of office of the chairperson and members of the Commission, which may not be more than three years;
(b) in consultation with the Minister of Finance, the remuneration and allowances to be paid to members of the Commission; and
(c) any other conditions of appointment not provided for in this section.

 (a) the chairperson is absent from the Republicor from duty, or for any reason is temporarily unable to function as chairperson; or
(b) the office of chairperson is vacant.

 (7) The chairperson or a member of the Commissionmay resign in writing.

 (8) The Minister may remove the chairperson or a member of the Commission from office for-

(a) serious misconduct;
(b) permanent incapacity; or
(c) engaging in any activity that may undermine the integrity of the Commission.

 60. Public hearings

 The Commission may hold public hearings at which it may permit members of the public to make oral representations on any matter that the Commission is considering in terms of section 58(2).

  61. Report by the Commission

 (1) The Commission's advice to the Ministermust be in the form of a written report.

 (2) The members of the Commission must endeavour to prepare a unanimous report to the Minister. If the members are not able to prepare a unanimous report, each member is entitled to have his or her views reflected in the report.

 MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS

  PART A

 MONITORING AND ENFORCEMENT

  62. Appointment of labour inspectors

 (1) The Minister may appoint labour inspectorsand may designate any other person to perform any of the functions of a labour inspector.

 (2) Any person appointed in terms of subsection (1) must perform his or her functions in terms of this Chapter, subject to the direction and control of the Minister.

 (3) The Minister must provide each labour inspector with a signed certificate in the prescribed form stating-

(a) that the person is a labour inspector;
(b) which legislation that labour inspectoris empowered to monitor and enforce; and
(c) which of the functions of a labour inspectorthat person is empowered to perform.

(1) A labour inspector appointed in terms of section 62(1) may promote, monitor and enforce compliance with an employment law by-

 (a) advising employees and employers of their rights and obligations in terms of an employment law;
 (b) conducting inspections in terms of this Chapter;
 (c) investigating complaints made to a labour inspector;
(d) endeavouring to secure compliance with an employment law by securing undertakings or issuing compliance orders; and
(e) performing any other prescribed function.

 64. Powers of entry

 (1) In order to monitor or enforce compliance with an employment law, a labour inspector may, without warrant or notice, at any reasonable time, enter-

 (a) any workplace or any other place where an employer carries on business or keeps employment records, that is not a home;
 (b) any premises used for training in terms of the Manpower Training Act, 1981 (Act No. 56 of 1981); or
 (c) any private employment office registered under section 15 of the Guidance and Placement Act, 1981 (Act No. 62 of 1981).

 (a) with the consent of the owner or occupier; or
 (b) if authorised to do so in writing.

 (4) If it is practicable to do so, the employer and a trade union representative must be notified that the labour inspector is present at a workplace and of the reason for the inspection.

 65. Powers to question and inspect

 (1) In order to monitor or enforce compliance with an employment law, a labour inspector may-

 (a) require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on a matter to which an employment law relates, and require that the disclosure be under oath or affirmation;
 (b) inspect, and question a person about, any record or document to which an employment law relates;
(c) copy any record or document referred to in paragraph (b) or remove these to make copies or extracts;
 (d) require a person to produce or deliver to a place specified by the labour inspector any record or document referred to in paragraph (b) for inspection;
 (e) inspect, question a person about, and if necessary remove, any article, substance or machinery present at a place referred to in section 64;
 (f) inspect or question a person about any work performed; and
(g) perform any other prescribed function necessary for monitoring or enforcing compliance with an employment law.

 (3) A labour inspector must-

 (a) produce on request the certificate referred to in section 62(3);
 (b) provide a receipt for any record or document removed in terms of subsection (1)(e); and
 (c) return any removed record, document or item within a reasonable period of time.

  66. Co-operation with labour inspectors

 (1) Any person who is questioned by a labour inspectorin terms of section 65 must answer all relevant questions lawfully put to that person truthfully and to the best of his or her ability.

 (2) Every employer and each employee must provide any facility at a workplace that is reasonably required by a labour inspector to perform effectively the labour inspector'sfunctions.

  67. Securing an undertaking

 (1) A labour inspector who has reasonable grounds to believe that an employer has not complied with any provision of this Act must endeavour to secure a written undertaking by the employer to comply with the provision.

 (2) In endeavouring to secure the undertaking, the labour inspector-

 (a) may seek to obtain agreement between the employer and employee as to any amount owed to the employee in terms of the provisions of this Act;
 (b) may arrange for payment to an employeeof any amount paid as a result of an undertaking;
 (c) at the written request of an employee, receive payment on behalf of the employee; and
 (d) must provide a receipt for any payment received in terms of paragraph (c).

 (1) A labour inspector who has reasonable grounds to believe that an employer has not complied with a provision of this Act may issue a compliance order.

(2) A compliance order must set out-

 (a) the name of the employer, and the location of every workplace, to which it applies;
 (b) the provision of this Act that the employer has not complied with, and details of the conduct constituting non-compliance;
 (c) any amount that the employer is required to pay to an employee;
 (d) any written undertaking by the employer in terms of section 67(1) and any failure by the employer to comply with a written undertaking;
 (e) any steps that the employer is required to take including, if necessary, the cessation of the contravention in question and the period within which those steps must be taken; and
 (f) the maximum fine that may be imposed upon the employer in accordance with Schedule Two for a failure to comply with a provision of this Act.

 (4) The employer must display a copy of the compliance order prominently at a place accessible to the affected employeesat each workplace named in it.

 (5) An employer must comply with the compliance order within the time period stated in the order unless the employer objects in terms of section 70.

  69. Limitations

 A labour inspector may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with a provision of this Act if-

 (a) the employee is covered by a collective agreement that provides for resolution by arbitration of disputesconcerning amounts owing in terms of this Act;
 (b) the employee is employed in a category of employment listed in section 5(1)(a) or in respect of which a notice has been issued in terms of section 5(3);
 (c) any proceedings have been instituted for the recovery of that amount or, if proceedings have been instituted, those proceedings have been withdrawn; or
(d) that amount has been payable for longer than 12 months.

 (1) An employer may, object to a compliance orderby making representations in writing to the Director-General within 21 days of receipt of that order.

 (2) If the employer shows good cause at any time, the Director-General may permit the employer to object after the time limit of 21 days has expired.

 (3) The Director-General after considering any representations by the employer and any other relevant information-

 (a) may confirm, modify or cancel an order or any part of an order; and
 (b) must specify the period within which the employer must comply with any part of an order that is confirmed or modified.

 (a) any evidence concerning the employer's compliance record;
 (b) the likelihood that the employer was aware of the relevant provision; and
 (c) the steps taken by the employer to ensure compliance with the relevant provision.

 (6) If the Director-General confirms or modifies the order or any part of the order, the employer must comply with that order within the time period specified in that order.

  71. Appeals from order of Director-General

 (1) An employer may appeal to the Labour Courtagainst an order of the Director-General within 21 days of receipt of that order.

 (2) The order is suspended pending the final determination of the appeal by the Labour Court or any appeal from the Labour Court.

 (3) If the employer shows good cause at any time, the Labour Court may permit the employer to appeal after the time limit of 21 days has expired.

  72. Order may be made order of Labour Court

 (1) The Director-General may apply to the Labour Court for an order of a labour inspector in terms of section 68 to be made an order of the Labour Court in terms of section 158(1)(c) of the Labour Relations Act if the employer has not complied with the order and has not lodged an objection against the order in terms of section 70(1).

 (2) The Director-General may apply to the Labour Court for an order of the Director-General in terms of section 70(3) to be made an order of the Labour Court in terms of section 158(1)(c) of the Labour Relations Act if the employer has not complied with the order and has not appealed against the order in terms of section 71(1).

 (3) For the purposes of section 158(1)(c) of the Labour Relations Act, an order in terms of section 68(5) or section 70(3) is deemed to be an arbitration award.

 
PART B

 LEGAL PROCEEDINGS

  73. Consolidation of proceedings

 (1) A dispute concerning a contravention of this Act may be instituted jointly with proceedings instituted by an employee under Part C of this Chapter.

  (2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act if-

 (a) the claim is referred in compliance with section 191 of the Labour Relations Act;
 (b) the amendment has not been owing to the employeefor longer than one year; and
 (c) no compliance order has been made and no other legal proceedings have been instituted to recover the amount.

 74. Payment of interest

 An employer must pay interest on any amount due and payable in terms of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), to any person to whom a payment should have been made.

  75. Proof of compliance

 (1) In any proceedings concerning a contravention of this Act or any sectoral determination it is for an employer-

 (a) to prove that a record maintained by or for that employer is valid and accurate;
 (b) who has failed to keep any record required by this Act that is relevant to those proceedings, to prove compliance with any provision of this Act.

 (1) Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Actprovides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act, except in respect of a criminal offence specified in sections 42, 43, 45, 47, 89 and 91.

 (2) The Labour Court may review the performance or purported performance of any function provided for in this Actor any act or omission of any person in terms of this Act on any grounds that are permissible in law.

 (3) The Labour Court has concurrent jurisdiction to hear and determine any matter concerning a contract of employment irrespective of whether any basic condition of employment constitutes a term of that contract.

 (4) Subsection (1) does not prevent any person relyingupon a provision of this Act to establish that a basic condition of employment constitutes a term of a contract of employment in any proceedings in a civil court or an arbitration held in terms of an agreement.

 (5) If proceedings concerning any matter contemplated in terms of subsection (1) are instituted in a court that does not have jurisdiction in respect of that matter, that court may at any stage during proceedings refer that matter to the Labour Court.

 
PART C

 PROTECTION OF EMPLOYEES AGAINST DISCRIMINATION

 77. Rights of employees

 (1) Every employee has the right to-

 (a) make a complaint to a trade union representativeor trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act;
 (b) discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person;
 (c) refuse to comply with an instruction that is contrary to this Act or any sectoral determination;
 (d) refuse to agree to any term or condition of employment that is contrary to this Act or any sectoral determination;
 (e) inspect any record kept in terms of this Actthat relates to the employment of that employee;
 (f) participate in proceedings in terms of this Act;
 (g) request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee.

 78. Protection of rights

 (1) In this section, "employee" includes a former employee or an applicant for employment.

 (2) No person may discriminate against an employeefor exercising a right conferred by this Part and no person may do, or threaten to do, any of the following-

 (a) require an employee not to exercise a right conferred by this Part;
 (b) prevent an employee from exercising a right conferred by this Part; or
 (c) prejudice an employee because of a past, present or anticipated-
(i) failure or refusal to do anything that an employer may not lawfully permit or require an employee to do;
(ii) disclosure of information that the employeeis lawfully entitled or required to give to another person; or
(iii) exercise of a right conferred by this Part.

  79. Procedure for disputes

 (1) If there is a dispute about the interpretation or application of this Part, any party to the dispute 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.

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

 (4) If a dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.

 (5) In respect of a dispute in terms of this Part, the relevant provisions of Part C of Chapter VII of the Labour Relations Act apply, with the changes required by context.

  80. Burden of proof

 In any proceeding in terms of this Part-

 (a) an employee who alleges that a right or protection conferred by this Part has been infringed must prove the facts of the conduct said to constitute such infringement; and
 (b) the party who engaged in the conduct in question must then prove that the conduct did not infringe any provision of this Part.

 CHAPTER ELEVEN

 
81. Temporary employment services

 (1) For the purposes of this Act, a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer.

 (2) Despite subsection (1), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person.

 (3) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any employee who provides services to that client, does not comply with this Act or a sectoral determination.

  82. Deeming of persons as employees

 (1) The Minister, on the advice of the Commissionand by notice in the Gazette, may deem any category of person specified in the notice to be employees for purposes of this Act or any sectoral determination.

 (2) Before the Minister issues a notice in terms of subsection (1), 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.

 For the purpose of determining the length of an employee'semployment with an employer for any provision of this Act, previous employment with the same employer must be taken into account if the break between the periods of employment is less than one year: Provided that any previous payment of severance pay in terms of section 40 must be taken into account in determining the employee's entitlement to severance pay.

  84. Delegation

 (1) The Minister, in writing, may delegate to the Director-General or any employee in the public service of the rank of assistant director or of a higher rank, any power, function or duty conferred or imposed upon the Minister in terms of this Act, except the Minister's powers in terms of sections 5(3), 54(1), 59, 82, 86 and 94(2) and the Minister'spower to make regulations.

 (2) A delegation in terms of subsection (1) does not limit or restrict the Minister's authority to exercise or perform the delegated power, function or duty.

 (3) Any person to whom a power, function or duty is delegated in terms of subsection (1) must exercise or perform that power, function or duty subject to the direction of the Minister.

 (4) At any time, the Minister may-

 (a) withdraw a delegation made in terms of subsection (1); and
 (b) withdraw or amend any decision made by a person exercising a power, function or duty delegated in terms of subsection (1).

 (6) Subsections (2), (3) and (4) apply with the changes required by the context to any delegations by the Director-Generalin terms of subsection (5).

  85. Regulations

 (1) In terms of this Act, the Minister, after consulting the Commission, by notice in the Gazette, may make regulations regarding any matter that-

 (a) may or must be prescribed; and
 (b) may be necessary or expedient to prescribe or have governed by regulations in order to achieve the objects of this Act.

  86. Codes of good practice

 (1) The Minister, after consulting NEDLAC-

 (a) must issue a Code of Good Practice on the Arrangement of Working Time;
 (b) must issue a Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child;
 (c) may issue other codes of good practice; and
 (d) may change or replace any code of good practice.

 (3) Any person interpreting or applying this Actmust take into account relevant codes of good practice.

  87. Minister's power to add and change footnotes

 The Minister, by notice in the Gazette, may add to, change or replace any footnote in the published version of this Act.

  88. Representation of employees or employers

 (1) A registered trade union or registeredemployers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party-

 (a) in its own interest;
 (b) on behalf of any of its members;
 (c) in the interest of any of its members.

89. Confidentiality

 (1) It is an offence for any person to disclose information which that person acquired while exercising or performing any power, function or duty in terms of this Act and which relates to the financial or business affairs of any other person, except if the information is disclosed in compliance with the provisions of any law-

 (a) to enable a person to perform a function or exercise a power in terms of an employment law;
 (b) for the purposes of the proper administration of this Act;
 (c) for the purposes of the administration of justice.

 (3) The record of any medical examination performed in terms of this Act must be kept confidential and may be made available only-

 (a) in accordance with the ethics of medical practice;
 (b) if required by law or court order; or
 (c) if the employee has consented, in writing, to the release of that information.

 No answer by any person to a question by a person conducting an investigation in terms of section 52 or by a labour inspectorin terms of section 65 may be used against that person in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement.

  91. Obstruction, undue influence and fraud

 (1) It is an offence to-

 (a) obstruct or attempt to influence improperly a person who is performing a function in terms of this Act;
 (b) obtain or attempt to obtain any prescribeddocument by means of fraud, false pretences, or by presenting or submitting a false or forged document;
 (c) pretend to be a labour inspector or any other person performing a function in terms of this Act;
 (d) refuse or fail to answer fully any lawful question put by a labour inspector or any other person performing a function in terms of this Act;
 (e) refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of this Act;
 (f) hinder or obstruct a labour inspectoror any other person performing a function in terms of this Act.

 (1) Any magistrates' court has jurisdiction to impose a penalty for an offence provided for in this Act.

 (2) Any person convicted of an offence in terms of any section mentioned in the first column of the table below may be sentenced to a fine or imprisonment for a period not longer than the period mentioned in the second column of that table opposite the number of that section.

 CRIMINAL OFFENCES AND PENALTIES

93. This Act binds the State

 This Act binds the State except insofar as criminal liability is concerned.

  94. Transitional arrangements and amendment and repeal of laws

 (1) The provisions of Schedule Three apply to the transition from other laws to this Act.

 (2) The Minister may for the purpose of regulating the transition from any law to this Act add to or change Schedule Three.

 (3) Any addition or change to Schedule Three must be tabled in the National Assembly and takes effect-

 (a) if the National Assembly does not pass a resolution that the addition or change is not binding within 14 days of the date of the tabling; and
 (b) on publication in the Gazette.

 (5) The laws mentioned in the first two columns of Schedule Five are each repealed to the extent indicated opposite that law in the third column of that Schedule.

 (6) The repeal of any law in terms of subsection (5) does not affect any transitional arrangement provided for in Schedule Three.

  95. Definitions

 In this Act, unless the context indicates otherwise-

 "agreement" includes a collective agreement;

 "area" includes any number of areas, whether or not contiguous;

 "bargaining council" means a bargaining councilregistered in terms of the Labour Relations Act and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act;

 "basic condition of employment" means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment;

 "CCMA" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act;

 "child" means a person who is under 18 years of age;

 "code of good practice" means a code of good practice issued by the Minister in terms of section 86 of this Act;

 "collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

 (a) one or more employers;
 (b) one or more registered employers' organisations; or
 (c) one or more employers and one or more registered employers' organisations;

 "compliance order" means a compliance order issued by a labour inspector in terms of section 68(1);

 "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

 "council" includes a bargaining council and a statutory council;

 "Department" means the Department of Labour;

 "Director-General" means the Director-General of Labour;

 "dispute" includes an alleged dispute;

 "domestic worker" means an employee who performs domestic work in the home of his or her employer and includes-

 (a) a gardener;
 (b) a person employed by a household as driver of a motor vehicle; and
 (c) a person who takes care of children, the aged, the sick, the frail or the disabled,

 "employee" means-

 (a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
 (b) any other person who in any manner assists in carrying on or conducting the business of an employer,

 "employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;

 "employment law" includes this Act and any of the following Acts-

 (a) Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
 (b) Manpower Training Act, 1981 (Act No. 56 of 1981);
 (c) Guidance and Placement Act, 1981 (Act No. 62 of 1981);
 (d) Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993);
 (e) Occupational Health and Safety Act, 1993 (Act No. 85 of 1993);
 (f) any other Act, the administration of which has been assigned to the Minister;

 "Gazette" means the Government Gazette;

 "Labour Appeal Court" means the Labour Appeal Court established in terms of section 167 of the Labour Relations Act;

 "Labour Court" means the Labour Court established in terms of section 151 of the Labour Relations Act;

 "labour inspector" means a labour inspector appointed in terms of section 62 and includes, within the terms of that designation, any person designated by the Minister in terms of section 62 to perform any function of a labour inspector;

 "Labour Relations Act" means the Labour Relations Act, 1995 (Act No. 66 of 1995);

 "medical practitioner" means a person entitled to practice as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);

 "midwife" means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978);

 "Minister" means the Minister of Labour;

 "month" means a calendar month;

 "NEDLAC" means the National Economic Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994);

 "ordinary hours of work" means the hours of work permitted in terms of section 8 or in terms of any agreement in terms of sections 10 or 11;

 "overtime" means the time that an employee works during a day or a week in excess of ordinary hours of work;

 "prescribe" means to prescribe by regulation in terms of section 85 and "prescribed" has a corresponding meaning;

 "public holiday" means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994);

 "public service" means the public service referred to in section 1(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes any organisational component contemplated in section 7(4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding-

 (a) the members of the National Defence Force;
 (b) the National Intelligence Agency; and
 (c) the South African Secret Service;

 "registered employers' organisation" means an employers' organisation that has been registered in terms of section 96 of the Labour Relations Act;

 "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning;

 "Republic" means the Republic of South Africa as defined in the Constitution;

 "sector" means an industry or a service or a part of an industry or service;

 "sectoral determination" means a sectoral determination made in terms of Chapter Eight;

 "senior managerial employee" means an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally;

 "statutory council" means a council established in terms of Part E of Chapter III of the Labour Relations Act;

 "temporary employment service" means any person who, for reward, procures for or provides to a client other persons-

 (a) who render services to, or perform work for, the client; and
 (b) who are remunerated by the temporary employment service;

 "trade union" means an association of employeeswhose principal purpose is to regulate relations between employeesand employers, including any employers' organisations;

 "trade union official" includes an official of a federation of trade unions;

 "trade union representative" means a trade unionrepresentative who is entitled to exercise the rights contemplated in section 14 of the Labour Relations Act;

 "wage" means the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week;

 "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls;

 "workplace" means any place where employees work; and

 "workplace forum" means a workplace forum established in terms of Chapter V of the Labour Relations Act.

  96. Short title and commencement

 This Act is called the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be fixed by the President by proclamation in the Gazette.
 

(1) This Schedule records the procedures to be adopted to reduce the working hours of employees to the goal of a 40 hour working week and an eight hour working day-

1. through collective bargaining and the publication of sectoral determinations; and
2. having due regard to the impact of a reduction of working hours on existing employment and opportunities for employment creation, economic efficiency and the health, safety and welfare of employees.

 When during negotiations on terms and conditions of employment, a party to the negotiations introduces the reduction of maximum working hours as a subject for negotiation, the parties must negotiate on that issue.

 (3) Role of Employment Conditions Commission

 The Commission may investigate the possibility of reducing working hours in a particular sector and area and make recommendation to the Minister thereon.

(4) Investigation by Department of Labou

1. The Department of Labour, in consultation with the Commission, must conduct an investigation as to how the reduction of weekly working hours to a level of 40 hours per week may be adcieved.
2. The investigation must be completed and the report submitted to the Minister not later than 18-months after the Act has come into operation.

The Department of Labour, in consultation with the Commission, must-

1. monitor and review progress made in reducing working hours.
2. prepare and publish a report for the Minister on the progress made in the reduction of working hours.

The reports must be tabled in Parliament by the Minister.
 
The Minister may prescribe the returns to be submitted by employers, trade unions and councils on any matter concerning this Schedule.
                   

 
(1) This schedule sets out the maximum fine that may be imposed in terms of Chapter Ten for a failure to comply with a provision of this Act.

 (2) The maximum fine that may be imposed-

 (a) for a failure to comply with a provision of this Act not involving a failure to pay an amount due to an employee in terms of any basic condition of employment, is the fine determined in terms of Table One;
 (b) involving a failure to pay an amount due to an employee, is the greater of the amount determined in terms of Table One or Table Two.

UNDERPAYMENT
 

No previous failure to comply	R100 per employee in respect of whom the failure to comply occurs, up to a maximum of R4 000
A previous failure to comply in respect of the same provision	R200 per employee in respect of whom the failure to comply occurs, up to a maximum of R8 000
A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provision within three years	R300 per employee in respect of whom the failure to comply occurs, up to a maximum of R12 000
Three previous failures to comply in respect of the same provision within three years	R400 per employee in respect of whom the failure to comply occurs, up to a maximum of R16 000
Four previous failures to comply in respect of the same provision within three years	R500 per employee in respect of whom the failure to comply occurs, up to a maximum of R20 000

 

TABLE TWO: MAXIMUM PERMISSIBLE FINE FOR A FAILURE TO

COMPLY INVOLVING UNDERPAYMENT
 

No previous failure to comply	25% of the amount due, including any interest owing on the amount at the date of the order
A previous failure to comply in respect of the same provision within three years	50% of the amount due, including any interest owing on the amount at the date of the order
A previous failure to comply in respect of the same provision within a year, or two previous failures to comply in respect of the same provision within three years	75% of the amount due, including any interest owing on the amount at the date of the order
Three previous failures to comply in respect of the same provision within three years	100% of the amount due, including any interest owing on the amount at the date of the order
Four or more previous failures to comply in respect of the same provision within three years	200% of the amount due, including any interest owing on the amount at the date of the order

 
 

 
1. Definitions-

 For the purposes of this schedule-

 "Basic Conditions of Employment Act"means the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983);

 "domestic worker" means an employee defined as a "domestic servant" in section 1(1) of the Basic Conditions of Employment Act;

 "farm worker" means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work in a home premises on a farm;

 "mineworker" means an employee employed at a mine whose hours of work are prescribed in terms of the regulations to the Mine Health and Safety Act, 1996 (Act No. 29 of 1996);

 "security guard" means an employee defined as a "guard" or a "security guard" in terms of the Basic Conditions of Employment Act;

 "this Act" means the Basic Conditions of Employment Act, 1997;

 "Wage Act" means the Wage Act, 1957 (Act No. 5 of 1957); and

 "wage determination" means a wage determination made in terms of section 14 of the Wage Act.

 2. Application to public service

 The provisions of this Act, other than section 40, do not apply to the public service for 18 months after the commencement of this Act unless a bargaining council concludes a collective agreement that a provision of this Act will apply from an earlier date.

 3. Application to farm workers

 Sections 6A, 10(2A) and 14(4A) of the Basic Conditions of Employment Act continue to apply to the employment of a farm worker until such time as the matters regulated by those provisions are regulated by a sectoral determination applicable to that farm worker.

   4. Payment in kind for domestic workers and farm workers

 (1) The definition of "wage" in section 1(1) of the Basic Conditions of Employment Act and the definition of "payment in kind" in the regulations published under the Basic Conditions of Employment Act continue to apply to the employment of domestic workers and farm workers, until regulated by a sectoral determination.

 (2) The Minister, by notice in the Gazette, may amend any cash amount prescribed in the definition of "payment in kind" in accordance with section 37 of the Basic Conditions of Employment Act, as if that section had not been repealed.

  5. Ordinary hours of work

 An employer may require or permit an employee who is employed as a farm worker, a mineworker or a security guard to work ordinary hours of work in excess of those prescribed by section 8(1) and (2) for the period specified in column two of Table Two: Provided that--

 (a) any condition in column two of Table Two is complied with;
 (b) the employee's hours of work do not exceed any limit on hours of work in any law or any wage regulating measure applicable to that category of employee immediately before this Act came into effect;
 (c) the employee and his or her employer do not conclude an agreement in terms of section 10 or 11.

 (1) The entitlement in terms of section 19(2) of an employee employed continuously before and after commencement of this Act takes effect on the date on which, but for the enactment of this Act, the employee would next have commenced a leave cycle in terms of section 12 of the Basic Conditions of Employment Act or any wage determination.

 (2) Any accrued leave to which an employee was entitled in terms of section 12 of the Basic Conditions of Employment Act,or a wage determination, but which has not been granted by the date section 19(2) takes effect with respect to that employee, must be added to the paid leave earned by that employee in terms of this Act.

 (3) The provisions of section 21(3) do not apply to any leave earned by the employee in respect of any period prior to the date on which this Act takes effect.

  7. Pay for sick leave

 (1) Table Three applies in respect of any employee, as defined in the Basic Conditions of Employment Act, in employment at the commencement of this Act.

 (2) An employee listed in column one who was in continuous employment before the commencement of this Act for the period set out in column two becomes entitled to the rights under section 21(2) on the date listed in column three and section 21(3) on the date listed in column four.
 

TABLE TWO

TRANSITIONAL ARRANGEMENTS IN RELATION TO SICK LEAVE
 

Employees as defined in the Basic Conditions of Employment Act	Period of continuous employment before commencement date of this Act	Date of entitlement to six weeks' paid sick leave over 36-month sick leave cycle in terms of section 21(2)	Date of entitlement to one day's paid sick leave every 26 days worked during the first six consecutive months of employment in terms of section 21(3)
Employees and regular day workers	Less than six months	Six months after commencement date of employment	Date on which employee began employment
Casual employees	Less than six months	Six months after commencement date of this Act	Commencement date ofthis Act
Regular day workers and casual employees	More than six months	Commencement date of this Act	Not applicable
Employees (other than casual workers and regular day workers)	Between six and 12 months	Commencement date ofthis Act	Not applicable
Employees	More than 12 months	At conclusion of current sick leave cycle in terms of section 13(1) of the Basic Conditions of Employment Act	Not applicable

 
(3) Any period of paid sick leave granted to an employee in accordance with Table Two, may be deducted from that employee's entitlement in terms of either section 21(2) or (3) if-

 (a) it was taken before the commencement of this Act; or
 (b) it was taken during the period that the relevant section was in effect with respect to that employee.

 Any exemption granted under section 34 of the Basic Conditions of Employment Act in force immediately before the commencement of this Act remains in force for a period of six months after the commencement of this Act unless it expires or it is withdrawn by the Minister, as if the provisions of that Act had not been repealed, before the end of that period.

 9. Wage determinations

 Any wage determination and any amendment to a wage determination made in terms of section 15 of the Wage Act in force immediately before the commencement of this Actremains in force for the period of its operation in terms of section 18 of that Act, and may be extended as if the provision of that Act had not been repealed.

 10. Exemptions to wage determination

 Any licence of exemption granted to a wage determinationin terms of section 19 of the Wage Act in force immediately before the commencement of this Act remains in force for the period of operation of the determination, or until withdrawn in terms of section 19(5) of that Act, as if that Act had not been repealed.

 11. Agreements

 (1) Any agreement entered into before the commencement of this Act which is permitted by this Actremains valid and binding.

 (2) Any provision in a collective agreement concluded in a bargaining council that was in force immediately before this Act came into effect shall remain in effect for-

 (a) six months after the commencement date of this Act in the case of a provision contemplated by section 48(1)(a) to (b); and
 (b) 18 months after the commencement date of this Act in the case of a provision contemplated by section 48(1)(c).

 
LABOUR RELATIONS ACT, 1995 (ACT NO. 66 OF 1995)

  1. Amend section 186(c) of Act 66 of 1995

 (c) an employer refused to allow an employeeto resume work after she- [i] took maternity leave in terms of any law, collective agreement or her contract of employment; [or

 (ii) was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;].

 

Number and year of law	Short title	Extent of repeal
Act No. 5 of 1957   Act No. 48 of 1981   Act No. 3 of 1983    Act No. 26 of 1984   Act No. 27 of 1984    Act No. 104 of 1992    Act No. 137 of 1993    Act No. 147 of 1993   Act No. 50 of 1994    Act No. 66 of 1995	Wage Act, 1957   Wage Amendment Act, 1981   Basic Conditions of Employment Amendment Act, 1983   Wage Amendment Act, 1984   Basic Conditions of Employment Amendment Act, 1984   Basic Conditions of Employment Amendment Act, 1992   Basic Conditions of Employment Amendment Act, 1993   Agricultural Labour Act, 1993   Agricultural Labour Amendment Act, 1994   Labour Relations Act, 1995	The whole   The whole   The whole    The whole   The whole    The whole    The whole    Chapter 2   Section 2    Section 196