BCEA

Chapter 3

©Anri vd Westhuysen
Learning outcomes

 Discuss the objectives of the BCEA;

 Explainto whom the provisions of the BCEA apply
 Critically discuss the concept of a temporary employment service as provided for in
section 1 of the BCEA (also see amendments to s.198 of the LRA);
 Discuss provision regulating working time and working hours, overtime, compressed
working weeks and averaging of hours of work;
 Discuss provision of the Act regulating meal intervals and rest periods;
 Discuss provisions of the Act regulating work on Sundays, public holidays, and night work;
 Discuss provisions of the Act regulating leave;
 Discuss provisions of the Act regulating termination of employment; and
 Discuss how the provisions of the BCEA may be varied.
 Apply to all to a set of facts

©Anri vd Westhuysen
What is the purpose of the BCEA?

 to advance economic development &

 social justice
 by ensuring that working conditions
 of unorganised and vulnerable workers
 meet minimum standards
 that are socially acceptable
 and by removing rigidities and inefficiencies
 from the regulations of minimum employment conditions
 by the promotion of flexibility

©Anri vd Westhuysen
Who does it apply to?
 The Basic Conditions of Employment Act applies to all employers and workers,
but not members of the -
 National Defence Force,
 National Intelligence Agency, or
 South African Secret Service; or
 unpaid volunteers working for charity.
 The section of the Act that regulate working hours does not apply to:
 workers in senior management
 sales staff who travel and regulate their own working hours
 workers who work less than 24 hours in a month
 workers who earn more than R205 433.30 per year
 workers engaged in emergency work are excluded from certain provisions.

©Anri vd Westhuysen
Definitions

 “Domestic worker” - employee who performs domestic work in the home of

her/his or her employer and
 includes a gardener, a person employed by a household as
 a driver of a motor vehicle and a person who takes care of
 the children, the aged, the sick, the frail or the disabled, but
 does not include a farm worker.
 “Employee” means 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 any other person who in any manner assists in carrying
 on or conducting the business of an employer.

©Anri vd Westhuysen
definitions

 “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 on a farm.
 “Senior managerial employee” means an employee who
 has the authority to hire, discipline and dismiss employees
 and to represent the employer internally and externally.

©Anri vd Westhuysen
TES

 A person is an employee in “temporary employment services (TES)” only if:

 the period of service does not exceed three months of employment;
 the work is rendered as a ‘substitute for an employee who is temporarily
absent’; or
 the work falls in any category or is for a period of time which is deemed to
be a temporary service by a bargaining council agreement or sectoral
determination.

©Anri vd Westhuysen
• New amendments Sec 198A, B, C (allows for special protection for low
income employees, those earning below the Ministerial Determination ito
the BCEA.

Old section 198 also amended:

• It protects all labour broker employees, regardless of earnings
• There is a new joint and several liability of the TES and client for specified
contraventions
• TES must be registered with the DoL (non-registration in terms of the
Employment Services Act (new) is not a defence)
• TES must give e/e written particulars of employment to e/e
• TES must comply with regulated employment conditions of the client
• CCMA has power to determine and enforce those conditions

©Anri vd Westhuysen
Sec 198 A (Amendment LRA , Act
6/2014)- TEMPS
This section defines a TS (Temporary Service) which must have ONE of these
characteristics:
1. Employment lasts less than 3 months
2. Replaces an employee who is temporarily absent and who will come back i. e
maternity leave
3. Is a category of work defined as a TS by Ministerial Notice, Sectorial
Determination or Collective agreement

• A TS is not the same as a TES. TS refers to a TEMPORARY SERVICE AND REFERS TO

WORK DONE.
• A TES IS A TEMPORARY EMPLOYMENT SERVICE and is an employer who hires
out employees to client businesses and describes an EMPLOYER.

©Anri vd Westhuysen
 The employment via the TES must be genuinely temporary
 The client is deemed to be the true employer if the work is not genuinely temporary
and if so:
 The worker is employed by the client on an indefinite basis
 And the worker must be treated no less favourably than other of the client’s employees
(unless there are justifiable reasons)
 It deems the employee to have been dismissed if a contract was terminated to avoid the
deeming provision
 Provides for the protections to kick in after 3 months in the case of an employee placed
before the amendments take effect (Effective 1 Jan 2015

©Anri vd Westhuysen
 Employment through labour brokers must be genuinely temp work, then the worker
is the employee of the TES
• If not, the worker is deemed to be the employee of the client, (not the TES) employed on
an indefinite contract.

 And must be treated like other e/e of the e/r, unless there are justifiable reasons to
not do so. (thus award conditions that are on the whole, not less favourable)

 Should the e/r terminate the contract to avoid the DEEMING provisions, it is
automatically unfair and will be adjudicated by the LC, after CCMA conciliation
failed.

©Anri vd Westhuysen
Section 198B- Fixed term contracts

Only applies to employees earning below the threshold, BUT the amendments to section 186LRA,
allows for a new category of dismissals in the fixed term employees may prove a legitimate
expectation to be indefinitely employed. This then applies to ALL employees, irrespective of earnings
• Fixed term contract is defined as one which expires upon the occurrence of a specified event,
specified task or project or on a fixed date (other then normal or agreed to retirement date)

Exclusions from 198B provisions:

i. Those earning in excess of the BCEA threshold

ii. Employed ito a collective agreement, statue, sectoral determination which allows for fixed term
appointments

iii. e/r who employs less than 10 employees

iv. e/r who employs less than 50 employees and whose business has been in operation for less tan 2 years
unless the e/r has more than one business or the business was formed by the division or dissolution for any
reason of an existing business

©Anri vd Westhuysen
Fixed term contracts (FTC)

SUCCESSIVE FIXED TERMS

1. IN GENERAL NOT LONGER THAN 3 MONTHS:

 ONLY LONGER THAN 3 months or successive FTC if:
a. The nature if limited or definite or
b. The e/r can demonstrate any other justifiable reason for fixing the term of
contract

Justifiable reasons (see the act):

replacements, temp increase of work (no longer than 12 months), student or graduate, limited
duration project, non citizen who has been granted a work permit, seasonal work, public
works or job creation scheme, project funded by outside sources, e/e has reached the normal
or agreed retirement age.

©Anri vd Westhuysen
• A breach of s 198(B) leads to employees being regarded as:
• permanent
• on an indefinite contract.

FTC must be:

– in wiring and

– state the reasons for fixing the time

FTC longer than 3 months:

e/e should not be treated less favourably than those on a permanent basis performing the same or similar work ( unless there are justifiable
reasons)

E/R must provide such employees ( longer TFC than 3 months) equal access to opportunities to apply for vacancies.

FTC for longer than 24 months

Entitled to severance pay (one week for each completed year of service), BUT should the e/r offer employment or procure a
same or similar job for the e/e, he or she will not be entitled to severance pay

Collective agreement could provide for non payment of this type of severance pay.

©Anri vd Westhuysen
S 198C (amendments- defines Part
Time employees)
• Part time employees are defined as employees who are remunerated wholly or
partly
• by reference to the actual time worked and
• who works less than comparable full time employees.

Exclusions:
1. Those earning in excess of the BCEA amount
2. During the first 3 months of employment
3. Employees who ordinarily work less than 24 hours
4. e/r employs less than 10 e/e
5. e/r employs more than 50 employees and business has been in operation for less than
2 years , unless the e/r operates more than one business or the business was formed by
the division or dissolution for any reason of an existing business

©Anri vd Westhuysen
S 198C- Justifiable reasons for treating part
time e/e differently if doing the same or
similar work
 Seniority
 Merit
 Quality or quantity of work
 Any other criteria s along as not prohibited by the EEA
 AFFORDABILITY IN ITSELF IS NOT A JUSTIFIABLE REASON

©Anri vd Westhuysen
Ordinary working hours Overtime Compressed working
week
Max 45h per week only by agreement Written agreement-may
(valid for one year); allow max 12h per day
5 days or less a week- No daily limit-max May not work more than
max 9h per day working hours a day is 12 10h overtime & 45h/pw
More than 5-max 8h 10h max per week e.g. only work 3-4 days
Collective agreement e.g. nurse
may increase overtime
to 15h/pw-only allowed
for 2 months annually.
1.5 rate/time off or
normal rate plus 0.5 off.
Sunday=overtime unless
ee normally works(2x)

©Anri vd Westhuysen
Ave hours of work Resting periods Meal intervals
Collective agreement Daily resting period of 1h-after 5 continuous
can change ordinary h 12h between ending & hours
and overtime for max 4 starting work.
months

Max Ave work time 45h Weekly rest period-36h May be reduced to
Overtime max-10h must include Sunday 30min or taken away if
unless otherwise agreed ee works less than 6h

Daily rest can be Meal interval is unpaid-

reduced to 10h if ee lives unless ee has to work or
on premises & meal is excess of 75min
3h+

©Anri vd Westhuysen
Sundays Public Holidays Night Work
Normally work-1.5 rate Only by agreement Between 18h and 6h
Not normally-2x 2x daily rate ER must pay allowance-
can be less hours or shift
allowance
Ordinary day or rates Normal rate + actual Transportation between
referred to-whichever is time worked-whichever ee home and work
greater is greater
Agree on ordinary rate + ER who requires ee to
time off regularly work night,
must inform him of
health & safety hazards.
If shift falls on 2 days,
whole shift will be seen
as Sunday, unless the
biggest part falls on
other day
©Anri vd Westhuysen
 Annual leave Sick leave Maternity Leave Family Responsibility

Full pay Full pay Unpaid Full pay

12 month cycle 36 month cycle May claim UIF 12 month
21 consecutive days Days=normal days 4 consecutive 3 days
worked in 6 weeks months
1 day for ever 17 1st 6 months- 1 day Commences Birth, illness, death of
days or 1h per 17h for every 26 days anytime from 4 child
worked works before due
date or from date
required due to
child or mother
health
Leave extended After 6months- May not work for 6 Death of spouse,
with 1 day for every entitled to full weeks after birth- partner,(grand)
public holiday within amount unless doctor agrees parent/child, sibling
Remuneration on Increase days for Miscarrage-3rd Must work 4+ days
last day of work or less pay-no less than trimester or stillborn- per week
as per agreement 75% of normal rate 6 weeks maternity
©Anri vd Westhuysen
on usual pay day leave
 Annual leave Sick leave Maternity Leave Family Responsibility

Must be granted Sick certificate due EE must inform ER 4 At least employed

within 6months after after 2days or twice weeks before leave for 4 months
completion of leave in 8 weeks in writing of start
cycle date and return date

Not traded for If no proof is ER may ask for proof

money-except on submitted- no pay e.g. birth/death
termination certificate

May not run Unused days do not

concurrently with accrue
any other leave

©Anri vd Westhuysen
BCEA (MATERNITY LEAVE II)
• Labour Laws Amendment Bill:
 o Parental leave (sec 25A)
 Parent of child.
 10 consecutive days.
 Birth/adoption.
 1 month’s notice.
 o Adoption leave (sec 25B)
 Child < 2
 10 consecutive weeks / parental leave.
 1 month’s notice.
 One parent: adoption leave. 2nd parent: parental leave.
 o Commissioning parental leave (sec 25C)
 Surrogate motherhood agreement.
 10 consecutive weeks / parental leave.
 1 month’s notice.
 One parent: commissioning parental leave. 2nd parent: parental leave.

©Anri vd Westhuysen
Particulars of E-ment and remuneration

 An er is required to provide in writing the following information to an

employee upon appointment:
 Particulars of the employer and employee,
 The employee’s occupation and place of work;
 The date of commencement of duties;
 Ordinary hours and days of work;
 Wages;
 Overtime pay;
 Any payment in kind and the value thereof;

©Anri vd Westhuysen
 The intervals of payment of remuneration;
 Deductions from remuneration;
 Leave,
 Notice period;
 If employment is for a specified period, the date when employment is to
terminate;
 Council or sectoral determinations applicable ( not applicable to
employers with less than 5 employees); and
 Any other documents that form part of the contract of employment ( not
applicable to employers with less than 5 employees)

©Anri vd Westhuysen
 ER must keep record of:
 Each employee’s name;
 occupation;
 time worked;
 remuneration paid and
 the date of birth of any employee under 18 years of age.
 This information must be kept for a period of three years from the date of
the last entry in the record.
 Does not apply if less than 5 employees.

©Anri vd Westhuysen
 EE’s rights must be displayed in all official language spoke in workplace-not
if less than 5 ee’s.
 Section 34 prohibits deductions from an employee’s wage or salary, unless
 s/he agrees thereto or
 unless a deduction is required or permitted by law,
 a collective agreement,
 A court order or
 an arbitration award

©Anri vd Westhuysen
Termination of employment

Less than 6 months 6 months-1 year 1 year plus

1 week 2 weeks 4 weeks

• Domestic or farmworkers notice may not be less than 4 weeks after 6

months work
• Collective agreement can lower notice for 1 year plus workers, but to no
less than 2 weeks-and not for farm or domestic workers

©Anri vd Westhuysen
ER must pay EE on termination:

 For unpaid overtime;

 Remuneration of outstanding annual leave
 Notice pay if the notice period is not worked (if notice is applicable);
 Any outstanding wages/salary; and
 Termination due to operational requirements or Er’s insolvency- severance
pay must be paid.
 Severance pay- 1 week’s salary/wage for every completed & continuous
year of service.

©Anri vd Westhuysen
Certificate of service

 Upon termination the ER must provide the EE with such a certificate.

 The certificate must contain:
 Employee’s full name;
 Name and address of the employer;
 A description of any council or sectoral employment standard by which the
employer’s business is covered;
 Date of commencement and date of termination of employment;
 The title of the job or a brief description of the work for which the employee was
employed at date of termination;
 The remuneration at date of termination; and
 If the employee so requests, the reasons for termination of employment.
 This is NOT a reference. You do not have to provide the EE with a reference.

©Anri vd Westhuysen
Variation of conditions of employment

 1) Variation by agreements
 2) Ministerial determination
 3) Sectoral determination

©Anri vd Westhuysen
Variation by agreements

 Bargaining council (BC) agreement may

 vary,replace or exclude any condition of employment but
 may not affect the core rights.
 Other collective agreements may
 replace or exclude any condition of employment
 to the extent permitted by the BCEA or a sectoral determination.
 Individual agreements may vary conditions of employment within limits

©Anri vd Westhuysen
Ministerial determination

 The Minister may make a determination to

 replace or exclude any basic condition of employment contained in the
BCEA.
 A ministerial determination in respect of ordinary hours of work may be
made only if the employees’
 ordinary working hours, overtime, meal intervals, rest periods and annual
leave are on the whole
 More favourable than the provisions contained in the act
 and if the determination has been agreed to in a collective agreement
and if it is necessitated by the operational circumstances of the sector.

©Anri vd Westhuysen
Sectoral determination

 This is where the Minister may establish basic conditions of employment and
minimum wages for employees in a particular sector and area.
 Minister may not make a sectoral determination in respect of employers
and employees who are bound by a bargaining council collective
agreement.
 In terms of the new section 55(8) the Minister may make a sectoral
determination that will apply to employers and employees not covered by
any other sectoral determination.

©Anri vd Westhuysen
Monitoring and enforcement of legal
provisions
 WRITTEN UNDERTAKING:
 A Labour Inspector who has reasonable grounds to believe that an
employer has not complied with any provision of the Act may endeavour
to secure from the employer a written undertaking to comply;
 In terms of section 68(3) the Director-General may apply to the Labour
Court for an order directing the employer to comply with a Written
undertaking should the employer fail tov comply, fully or in part, with that
undertaking.

©Anri vd Westhuysen
Compliance order

 A labour inspector - reasonable grounds to believe that ER- not complied with a provision of
the Act may issue a compliance order, which must set out:
 1. The name of the employer and the location of every workplace to which the order applies;
 2. Any provision the employer has failed to comply with and the conduct that constitutes no-
compliance;
 3. Any amount that the employer is required to pay to an employee;
 4. Any steps that the employer is required to take, including the cessation of the contravention
in question and the period within which those steps must be taken;
 5. The maximum fine that may be imposed upon the employer’s failure to comply;
 6. The date by which the employer should serve any representations it may wish to make with
the Department and the Labour Court.; and
 7. The date on which, should the employer not comply with the order, application may be made
without further notice to the employer to have the compliance order made an order of the
Labour Court

©Anri vd Westhuysen