LLW2601 - STUDY UNIT 2

THE BASIC CONDITIONS

OF EMPLOYMENT ACT

MM Mulaudzi
 THE BCEA AND NMWA
 The BCEA and the NMWA are closely related to each other and should be
studied together.
 The BCEA sets out the minimum terms and conditions of employment.
 The NMWA provides a minimum wage ang basic statutory rights.
 Section 3 of the BCEA –exception of application the BCEA to certain
employees
 Section 6(3) of the BCEA provides for a ministerial determination that
establishes an annual earning threshold
 VARIATION OF CONDITION OF EMPLOYMENT
The BCEA establishes basic/minimum terms and conditions of employment for employees. An employer is
obliged by the BCEA to give an employee the minimum entitlements/terms and conditions. Generally,
employers and employees may deviate from these minimum conditions to improve them but not to provide
less favourable conditions.

There are two ways in which basic conditions may be varied.

 Section 49(4) of the BCEA establishes a hierarchy of agreements and prescribes the extend to which
these agreements may vary from the basic terms and conditions set by the BCEA.
 Variation by ministerial determination- the Minister of Labour may issue a ministerial determination
varying or excluding a basic condition of employment contained in the BCEA.
 WAGES AND REMUNERATION
Remuneration is defined in section 1 of the BCEA to include payment in money and/or payment in kind; in
respect of the remuneration paid in money, an employee must be paid either weekly, fortnightly, or monthly.

An employer may not deduct from an employee’s remuneration unless permitted by written agreement
between the parties specifying the debt, or a law, or a collective agreement, or a court order or arbitration
award permits the deduction.

 Payment dates and methods – Sections 32 – 35 of the BCEA

 Minimum wages – Sections 4 - 7 of the NMWA
 Payment of contributions to benefit funds and other deductions – Sections 34 – 34A of the BCEA
 Severance payment – Section 41 of the BCEA
 SELF-STUDY pages 46 - 48 para 4.1.1 – 4.1.4 Labour Law Rules! 4ed (2021)
 REGULATION OF WORKING HOURS
Chapter II of the BCEA regulates the minimum conditions for working hours of
employee.

 Ordinary working hours - Section 9 of the BCEA

 Lunch – Section 14 of the BCEA
 Overtime – Section 10 of the BCEA
 Night works - Section 17 of the BCEA
 Rest periods - Section 15 of the BCEA
 Compressed work week - Sections 11 and 12 of the BCEA
 Meal intervals - Section 14 of the BCEA
REGULATION OF WORKING HOURS – Continued
 Work on Sundays – Section 16 of the BCEA
 Work on public holidays – Section 18 of the BCEA
– Randfontein Estate Ltd v National Union of Minorworkers

 SELF-STUDY pages 48 - 51 para 4.2 – 4.2.8 Labour Law Rules! 4ed (2021)
 REGULATED FORMS OF LEAVE
Chapter III of the BCEA regulates the various forms of leave to which an employee is
entitled.

 Annual leave – 21 consecutive days - Sections 20 - 21 of the BCEA

 Sick leave – Days worked in a normal week x six weeks = sick leave over three years -
Sections 22 - 23 of the BCEA
 Family responsibility leave - Section 27 of the BCEA
 Maternity leave - Section 25 of the BCEA
-Four consecutive months’
-Unpaid
 REGULATED FORMS OF LEAVE - CONTINUED

 Parental leave – Section 25A of the BCEA

– MIA v State Information Technology Agency - court found the applicant, a male in a same-sex couple, was
entitled to the same maternity leave as a biological mother.
 Adoptive leave – Section 25B of the BCEA
 Commissioning leave – Section 25C of the BCEA – where a surrogate motherhood agreement
exists, an employee who is commissioning parent, is entitled to ten consecutive weeks- unpaid leave
 Parental leave – Section 25A of the BCEA
 SELF-STUDY pages 51 – 55 para 4.3.1 – 4.3.9 Labour Law Rules! 4ed (2021)
 NOTICE PERIOD
A contract of employment may be terminated by written notice by either party.
Section 37 of the BCEA - provides that a contract of employment may be terminated
by way of a notice period of not less than
- one week, if the employee has been employed for six months or less;
- two weeks, if the employee has been employed for more than six months but less
than a year;
- four weeks, if the employee has been employed for one year or more.

Section 37(3) of the BCEA – parties may agree to a different notice period.

Section 38 of the BCEA - The employee may pay the employee an amount equivalent
to the salary that the employee would have earned during the notice period.
 PROHIBITION OF FORCED LABOUR,
CHILD LABOUR, AND EXPLOITATION OF WORKERS
Section 13 of the Constitution – prohibits forced labour and child labour
Section 48 of the BCEA – prohibits forced labour
Sections 43 – 47 of the BCEA –prohibits child labour
- Section 28 of the Constitution – every child has the right to be protected from
exploitative labour practices
- It is a criminal offence to employ children younger than fifteen years.
- Children older than fifteen years who have left school may be employed but:
• Work must be appropriate for their age
• Work must not risk their health, well-being, education, physical/mental health, or
spiritual/moral/social development.
 THE BCEA
Certificated of service – Section 42 of the BCEA
 SELF-STUDY pages 56 para 4.5 Labour Law Rules! 4ed (2021)

Enforcement of the BCEA and the NMWA

Dispute about non-payment of wages – Sections 74 – 77A of the BCEA
 SELF-STUDY pages 57 – 58 para 6 – 7 Labour Law Rules! 4ed (2021)