BASIC CONDITIONS OF EMPLOYMENT BILL REVISED ISSUE

The Basic Conditions of Employment Bill proposes to establish and enforce a new set of minimum employment conditions, in line with South Africa's obligations as a member state of the International Labour Organisation.

The Main Points of the Bill

The Bill proposes contracts of employment for all employees (except members of the SANDF, National Intelligence Agency, South African Secret Service and unpaid charitable workers) which guarantee a set of basic employment conditions (with a few permissible exceptions). These basic conditions are proposed to protect employees against exploitation and abuse, and to safeguard their health and safety. The key points include:

Working Time

• working time must be arranged so as not to endanger employees' health and safety
• a maximum working week of 45 hours a week (a Schedule to the Bill introduces procedures for the progressive achievement of a 40-hour week)
• a maximum working day of nine hours a day
• a maximum of three hours' overtime a day, and ten hours' overtime a week
• within the maximum working week, employees may be permitted, by agreement, to work for up to 12 hours in a day, without receiving overtime pay
• by collective agreement, hours of work of an employee may be averaged over four months, subject to a weekly average of 45 ordinary hours and five hours' overtime
• employees must have a daily rest period of at least 12 consecutive hours and a weekly rest period of at least 36 consecutive hours (60 per fortnight by agreement)
• an employee working five hours must have a meal break of at least 60 minutes (though by agreement, this may be reduced to 30 minutes)
• employees required to remain on premises or be available for work during mealtimes must be paid
• senior managers, travelling sales persons and employees earning above a certain amount excluded from the working time provisions.

Leave

• employees who work at least 24 hours per month are entitled to three weeks' paid leave after every 12 months of continuous service (one day's leave per 17 days of employment, or one hour's leave for each 17 hours of employment)
• an employer must not pay an employee instead of granting annual leave
• employees are entitled to six weeks' paid sick leave for every 36 months of continuous employment (but only one day's paid sick leave for every 26 days worked for the first six months of employment)
• a pregnant employee is entitled to four months' maternity leave, which may begin up to four weeks before the expected date of birth
• an employee working four or more days per week is entitled to three days' family responsibility leave, after having been employed by the employer for at least four months.

Written Particulars and Information

• Most employers must give employees written particulars of employment when employment starts and provide information on remuneration, deductions and time worked.

Wages, Deductions, Compensation and Notice

• No unauthorised deductions may be made by an employer from an employee's pay
• Sunday work must be paid at double the normal wage (or by 1.5 times if an employee normally works on Sunday)
• work on public holidays must be paid at double the normal rate, and no employee can be required to work on a public holiday, unless by agreement
• overtime work must be paid at 1.5 times the employee's normal wage, or, by agreement, employees must be given paid time off in lieu
• night work must be compensated by either an allowance or by reduced working hours, and transport must be available to employees
• Employment may be terminated with one week's notice within the first four weeks of employment; two weeks during the remainder of the first year; and 30 days' notice thereafter (one month for a farm worker or domestic worker with more than four weeks' service)
• employees occupying employer-provided accommodation may remain for the duration of the notice period

Child and Forced Labour

• No person may employ a child under 15, and no child under 18 can be employed to do work which either puts them at risk or is inappropriate for their age
• Forced labour is prohibited (unless permitted by any other law).

Variations to Basic Conditions

• Basic conditions may be varied by individual or collective agreement, with the exception of conditions regarding:
1. arrangement of working time with due regard to employees' health & safety
2. child labour, forced labour and maternity leave
3. sick leave
• Basic conditions may be varied by the Minister of Labour.

Protection of Employees

• Employees may not be discriminated against for exercising any right under the proposed Bill including:
1. complaining to a trade union representative or fellow employee
2. refusing to comply with an unlawful instruction or condition of employment
3. participating in any proceedings in terms of the Bill
4. inspecting, or requesting a trade union representative to inspect, any record kept in terms of the Bill.

Enforcement and Monitoring

• The Minister of Labour may appoint inspectors to promote, monitor or enforce compliance with employment laws
• Inspectors will have the power to enter and inspect most premises, without notice or a warrant, and question any person and inspect, copy and remove documents and other relevant items
• Inspectors may issue compliance orders to employers, stating what provision is not being complied with and indicating the steps the employer must take to comply with the provision
• Maximum penalties for failure to comply are:
• - R20,000 for contraventions not involving underpayment (Maximum for a first offence is only R100 per worker, up to a maximum of R4,000)
• - 200 per cent of the amount due for contraventions involving underpayment
• - three years' imprisonment for criminal offences.