Government Gazette

Vol. 401, No. 19453, 13 November 1998

Regulation Gazette No. 6342

GOVERNMENT NOTICES

No. R. 1438

REGULATIONS

Promulgated terms of the Basic Conditions of Employment Act, No. 75 of 1997, under Government Notice No. R 1438 of 1998 in Government Gazette No. 19453 of 13 November 1998.

The Minister of Labour has, under section 86(1) of the Basic Conditions of Employment Act (Act No. 75 of 1997), and after consulting the Employment Conditions Commission, made the Regulations set out in the Schedule.

CONTENTS OF REGULATIONS

A. INDEX OF GENERAL ADMINISTRATIVE REGULATIONS

Definitions
Informing employees of their rights
Keeping of Records
Record of Employee's Wages
Written Particulars of Employment
Certificate of Service
Ministerial Determination
Subpoenas
Securing an Undertaking
Compliance Order
Objections to Compliance Order
Proof of Service

B. INDEX OF FORMS ANNEXED TO REGULATIONS

GENERAL REGULATIONS

SCHEDULE

1. Definitions

(1) In these regulations any expression that is defined in the Act has that meaning unless the context indicates otherwise -

"the Act" means the Basic Conditions of Employment Act (Act no. 75 of 1997).

"Labour Relations Act" means the Labour Relations Act (Act 66 of 1995).

"form" means a document attached to these regulations.

(2) Whenever the expression "Department of Labour" or "Provincial Director" appears in the Act or in these regulations, it means -

1. in the province of KwaZulu/Natal, the Provincial Director, Department of Labour, P O Box 940, Durban, 4000;
2. in the province of Northern Cape, the Provincial Director, Department of Labour, Private Bag X5012, Kimberley, 8300;
3. in the Northern Province, the Provincial Director, Department of Labour, Private Bag X9368, Pietersburg, 0700;
4. in the province of North-West, the Provincial Director, Department of Labour, Private Bag X2040, Mmabatho, 8681;
5. in the province of Eastern Cape. the Provincial Director, Department of Labour, Private Bag X9005. East London. 5200;
6. in the province of Mpumalanga, the Provincial Director, Department of Labour, Private Bag X7263, Witbank. 1035;
7. in the province of the Free State, the Provincial Director, Department of Labour, P O Box 522. Bloemfontein. 9300:
8. in the province of Gauteng:
   Gauteng-South: - in the Magisterial Districts of Alberton, Boksburg, Brakpan, Germiston. Heidelberg, Johannesburg, Kempton Park, Oberholza, Randburg, Roodepoort, Vanderbijlpark. Vereeniging and Westonaria, The Provincial Director, Department of Labour, P O Box 4560, Johannesburg, 2000; Gauteng North: - in the Magisterial Districts of Benoni, Bronkhorstspruit, Cullinan, Krugersdorp, Nigel, Pretoria, Randfontein, Soshanguve I, Soshanguve 2, Springs and Wonderboom, the Provincial Director, Department of Labour, P O Box 393, Pretoria, 0001; and
9. in the Province of the Western Cape, the Provincial Director, Department of Labour, P O Box 872, Cape Town, 8000.

2. Informing employees of their rights

An employer must keep the statement of employees rights referred to in section 30 of this Act in the form of BCEA I in all official languages.

Form BCEA 1A Form BCEA IB Form BCEA 1C Form BCEA 1D Form BCEA 1E Form BCEA 1F Form BCEA IG Form BCEA 1H Form BCEA 1I Form BCEA 1J Form BCEA 1K

English Afrikaans Sepedi Sesotho Setswana siSwati Tshivenda Xitsonga isiNdebele isiXhosa isiZulu

3. Keeping of Records

(1) The record that an employer is required to keep in terms of section 31 must comprise

1. a wages register in the form of BCEA 2 or some other record that contains the information set out in that form; and
2. an attendance register in the form of BCEA 3 or some other record that contains the information set out in that form.

4. Record of employee's wages

The information about remuneration that an employer is required to give an employee in terms of section 33 of the Act must be given in the form of BCEA 4, or contain the information required by that form.

5. Written particulars of employment

Within six months of the date on which the Act comes into effect, an employer must give an employee who was in employment on that date the written particulars of employment required by Section 29.

6. Certificate of service

The certificate of service that an employer is required to give an employee in terms of section 42 must be given in the form of BCEA 5, or contain the information required by that form.

7. Ministerial determination

An application for a Ministerial determination in terms of Section 50(1)(b) of the Act must be in the form of BCEA 6, or contain the information by that form. A Ministerial determination must be issued in the form of BCEA 7, or contain the information required by that form.

8. Subpoenas

(1) For the purpose of performing the functions referred to in section 66 of the Act, a labour inspector may—

1. subpoena for questioning any person who may be able to give information or whose presence may help the inspector in performing the inspector's functions;
2. subpoena any person who is believed to have possession or control of any book, document or object relevant to an inspection or investigation to appear before the inspector to be questioned or to produce that book, document or object;
3. call, and if necessary subpoena, any expert to appear before the inspector to give evidence relevant to an inspection or investigation;
4. call any person present at an inspection or investigation who was or could have been subpoenaed for any purpose set out in these regulations, to be questioned about any matter relevant to an inspection or investigation;
5. administer an oath or accept an affirmation from any person called to give evidence or be questioned;
6. examine, demand the production of, and seize any book, document or object that is on or in those premises an that is relevant to an inspection or investigation;
7. take a statement in respect of any matter relevant to an inspection of investigation from any person on the premises who is willing to make a statement; and
8. inspect, and retain for a reasonable period, any of the books, documents, or objects that have been produced to, or seized by, the inspector.

(2) A subpoena issued in terms of sub-regulation (1 ) must be made in the form of BCEA 8.

(3) A subpoena issued for any purpose in terms of sub-regulation (1) must be signed by the Director General or a person authorised by the Director-General and must -

1. specifically require the person named in it to appear before the inspector;
2. sufficiently identify the book, document or object to be produced; and
3. state the date, time and place at which the person is to appear.

9. Securing an undertaking

1. Any undertaking secured by a labour inspector in terms of Section 68(2) of the Act must be in the form of BCEA 9 or contain the information required by that form.
2. A receipt for any payment in terms of Section 68(2)(d) of the Act must be in the form of BCEA 10 or contain the information required by that form.
3. A receipt for any record, document, article, substance or machinery removed in terms of Section 66 (3)(b) of the Act must be in the form of BCEA 11 or contain the information required by that form.

10. Compliance order

A compliance order issued by a labour inspector in terms of Section 69 of the Act must be in the form of BCEA 12 or contain the information set out in that form.

11. Objections to compliance order

1. An objection lodged by an employer in terms of Section 71 of the Act must be in the form of BCEA 13 or contain the information set out in that form.
2. The objection must be lodged at any office of the Department of Labour listed in regulation 1(2).

12. Proof of service

Whenever a party is required to satisfy any person that a copy of a referral, objection or other document has been served on another party, that party may do so by providing -

1. a copy of the proof of mailing the referral, objection or other document by registered post to the other party;
2. a copy of the telegram, telex or telefax including proof of transmission, communicating the referral, objection or other document to the other party;
3. a copy of a receipt signed by the other park or on that party's behalf if the copy of the referral, objection or other document was delivered by hand; or
4. a statement confirming service signed by the person who delivered a copy of the referral objection or other party.

BCEA 1A

(Regulation 3)

BASIC CONDITIONS OF EMPLOYMENT ACT, 1997

SUMMARY TO BE KEPT BY AN EMPLOYER IN TERMS OF SECTION 30

The following is a summary of the provisions of the most important sections of the Basic Conditions of Employment Act, 1997.

1. APPLICATION OF THE ACT: SECTION 3

The Act applies to all employees and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for an organisation with a charitable purpose.

The Act takes precedence over any agreement.

2. REGULATION OF WORKING TIME: CHAPTER TWO

2.1 Application

This chapter does not apply to senior managerial employees, employees engaged as sales staff who travel and those employees who work less than 24 hours a month.

2.2 Ordinary hours of work: Section 9

No employer shall require or permit an employee to work more than—

1. 45 hours in any week;
2. nine hours in any day if an employee works for five days or less in a week; or
3. eight hours in any day if an employee works on more than five days in a week.

2.3 Overtime: Section I0

2.3.1 An employer may not require or permit an employee

1. to work overtime except by an agreement;
2. to work more than—
   1. three hours' overtime a day; or
   2. ten hours' overtime a week.

2.3.2 Overtime must be paid at 1.5 times the employee's normal wage or an employee may agree to receive paid time off.

2.4 Compressed working week: Section 11

2.4.1 An employee may agree in writing to work up to 12 hours in a day without receiving overtime pay.

2.4.2 This agreement may not require or permit an employee to work—

1. more than 45 ordinary hours in any week;
2. more than ten hours' overtime in any week: or
3. more than five days in any week.

2.5 Averaging of hours of work: Section 12

2.5.1 A collective agreement may permit the hours of work to be averaged over a period of up to four months.

2.5.2 An employee who is bound by a collective agreement may not work more than—

1. an average of 45 ordinary hours in a week over the agreed period;
2. an average of five hours overtime in a week over the agreed period.

2.6 Meal intervals: Section 14

2.6.1 An employee must have a meal interval of 60 minutes after five hours work.

2.6.2 A written agreement may—

1. reduce the meal interval to 30 minutes;
2. dispense with the meal interval if worked fewer than six hours on a day.

2.7 Daily and weekly rest period: Section 15

An employee must have a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which, unless otherwise agreed, must include Sunday.

2.8 Pay for work on Sundays: Section 16

2.8.1 An employee who occasionally works on a Sunday must receive double pay. 2.8.2 An employee who ordinarily works on a Sunday must be paid at 1.5 times the normal wage. 2.8.3 Paid time off in return for working on a Sunday may be agreed upon.

2.9 Night work: Section 17

2.9.1 Employees who work at night between 18:00 and 06:00 must be compensated by payment of an allowance or by a reduction of working hours and transport must be available.

2.9.2 Employees who work regularly after 23:00 and before 06:00 the next day must be informed

1. of any health and safety hazards; and
2. the right to undergo a medical examination.

2.10 Public holidays: Section 18

2.10.1 Employees must be paid for any public holiday that falls on a working day.

2.10.2 Work on a public holiday is by agreement and paid at double the rate.

2.10.3 A public holiday is exchangeable by agreement.

3. LEAVE: CHAPTER THREE

3.1 Application

The chapter on leave does not apply to an employee who worlds less than 24 hours a month for an employer and if an agreement provides for leave in excess of the leave entitlement under this chapter.

3.2 Annual leave: Sections 20 & 21

3.2.1 Employees are entitled to 21 consecutive days' annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.

3.2.2 Leave must be granted not later than six months after the end of the leave cycle.

3.2.3 An employer must not pay an employee instead of granting leave except on termination of employment.

3.3 Sick leave: Sections 22 - 24

3.3.1 An employee is entitled to six weeks' paid sick leave in a period of 36 months.

3.3.2 During the first six months an employee is entitled to one day's paid sick; leave for every 26 days worked.

3.3.3 An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.

3.4 Maternity leave: Sections 25 & 26

3.4.1 A pregnant employee is entitled to four consecutive months' maternity leave.

3.4.2 A pregnant employee or employee nursing her child is not allowed to perform work that is hazardous to her or her child.

3.5 Family responsibility leave: Section 27

3.5.1 Full time employees are entitled to three days paid family responsibility leave per year, on request. when the employee's child is born or sick, or in the event of the death of the employee's spouse or life partner, or the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

3.5.2 An employer may require reasonable proof.

4. PARTICULARS OF EMPLOYMENT AND REMUNERATION: CHAPTER FOUR

4.1 Application

This chapter does not apply to an employee who works less than 24 hours a month for an employer.

4.2 Written particulars of employment: Section 29

4.2.1 An employer must supply an employee when the employee commences employment, with the following particulars in writing:

1. full name and address of the employer;
2. name and occupation of the employee, or a brief description of the work;
3. various places of work;
4. date of employment;
5. ordinary hours of work and days of work;
6. wage or the rate and method of calculating;
7. rate for overtime work;
8. any other cash payments;
9. any payment in kind and the value thereof;
10. frequency of remuneration;
11. any deductions;
12. leave entitlement;
13. period of notice or period of contract;
14. description of any council or sectoral determination which covers the employer's business;
15. period of employment with a previous employer that counts towards the period of employment:
16. list of any other documents that form part of the contract, indicating a place where a copy of each may be obtained.

4.2.2 Particulars must be revised if the terms of employment change.

4.3 Informing employees of their rights: Section 30

A statement of employees' rights must be displayed at the workplace in official languages used at the workplace.

4.4 Keeping of records: Section 31

Every employer must keep a record containing the following information:

1. employee's name and occupation;
2. time worked;
3. remuneration paid;
4. date of birth if under 18 years of age; and
5. any other prescribed information.

4.5 Information about remuneration: Section 33

The following information must be given in writing when the employee is paid:

1. employer's name and address;
2. employee's name and occupation;
3. period of payment;
4. remuneration in money;
5. any deduction made from the remuneration;
6. the actual amount paid; and
7. if relevant to the calculation of that employee's remuneration
   1. employee's rate of remuneration and overtime rate;
   2. number of ordinary and overtime hours worked during the period of payment;
   3. number of hours worked on a Sunday or public holiday during that period: and
   4. if an agreement to average working time has been concluded, the total number of ordinary anti overtime hours worked in the period of averaging.

4.6 Deductions and other acts concerning remuneration: Section 34

No unlawful deductions may be made unless agreed to in writing.

4.7 Calculation of remuneration and savages: Section 35

4.7.1 Wages are calculated by the number of hours ordinarily worked.

4.7.2 Monthly remuneration or wage is four and one-third times the weekly wage.

4.7.3 If calculated on a basis other than time, or if the employee's remuneration or wage fluctuate significantly from period to period, any payment must be calculated by reference to wage during—

1. the preceding 13 weeks; or
2. if employed for a shorter period, that period.

5. TERMINATION OF EMPLOYMENT: CHAPTER FIVE

5.1 Application

This chapter does not apply to an employee who works less than 24 hours in a month for an employer.

5.2 Notice of termination of employment: Section 37

5.2.1 A contract of employment may be terminated only on notice of not less than—

1. one week, if employed for four weeks or less;
2. two weeks, if employed for more than four weeks but not more than one year;
3. four weeks, if employed for one year or more, or is a farm worker or a domestic worker we has been employed for more than four weeks.

5.2.2 Notice must be given in writing except when it is given by an illiterate employee.

5.2.3 The notice on termination of employment by an employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal in terms of the Labour Relations Act., 1995, or any other law.

5.3 Severance pay: Section 41

An employee, dismissed for operational requirements is entitled to one weeks'; s severance pay for every ! year of service.

5.4 Certificate of service: Section 42

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

6. PROHIBITION OF EMPLOYMENT OF CHILDREN AND FORCED LABOUR: SECTIONS 43 - 48

6.1 It is a criminal offence to employ a child under 15 years of age.

6.2 Children under 18 may not be employed to do work inappropriate for their age or that places them at risk.

6.3 Forced labour is a criminal offence.

7. VARIATION OF BASIC CONDITIONS OF EMPLOYMENT: SECTIONS 49 - 50

7.1 A collective agreement concluded by a bargaining council may replace or exclude any basic condition of employment except the following:

1. the duty to arrange working time with regard to the health and safety and family responsibility of employees (S.7,9 and 13);
2. reduce the protection afforded to employees who perform night work(S. 17(3) and (4);
3. reduce annual leave to less than two weeks (S. 20);
4. reduce entitlement to maternity leave (S 25);
5. reduce entitlement to sick leave to the extent permitted (S. 22-24); and
6. prohibition of child and forced labour (S.48).

7.2 Collective agreements and individual agreements may only replace or exclude basic conditions of employment to the extent permitted by the Act or a sectoral determination (S.49).

7.3 The Minister of Labour may make a determination to vary or exclude a basic condition of employment. This can also be done on application by an employer or employer organisation (S. 50).

7.4 A determination may not be granted unless a trade union representing the employees has consented to the variation or has had the opportunity to make representations to the Minister. A copy of any determination must be displayed by the employer at the work place and must be made available to employee's (S.50).

8. SECTORAL DETERMINATIONS: SECTION 51

Sectoral determinations may be made to establish basic conditions for employees in a sector and area.

9. MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS: SECTIONS 63 - 81

9.1 Labour inspectors must advise employees and employers on their rights and obligations in terms of employment laws. They conduct inspections, investigate complaints and may question persons and inspect, copy and remove records and other relevant documents (S. 64 - 66).

9.2 An inspector may serve a compliance order on an employer who is not complying with a provision of the Act. The employer may object against the order to the Director-General: Labour, who after receiving representations, may confirm, modify or set aside an order. This decision is subject to appeal to the Labour Court (S. 68 - 73).

9.3 Employees may not be discriminated against for exercising their rights in terms of the Act (S. 78 - 81):

10. GENERAL

It is an offence to—

1. obstruct or attempt to influence improperly a person who is performing a function in terms of the Act;
2. obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document;
3. pretend to be a labour inspector or any other person performing a function in terms of the Act;
4. refuse or fail to answer fully any lawful question put by a labour inspector or any other person performing a function in terms of the Act;
5. 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 the Act;
6. hinder or obstruct a labour inspector or any other person performing a function in terms of the Act. (S. 92)