UNIT 3:LABOUR

LEGISLATION UNIT
INTRODUCTION
• This unit focuses on the various labour legislations in South Africa.
• The Basic Conditions of Employment Act (BCEA) shall be extensively
expanded on.
• The role of the Labour inspectors to monitor and enforce compliance
orders
• Dispute resolution and affirmative action will also be delved into
UNIT 3: LABOUR
LEGISLATION
1. Discuss the purpose of the Basic Conditions of
Employment Act (BCEA)

2. Describe the minimum conditions of

employment as provided in the BCEA

3. Discuss the variations of the BCEA

4. Deliberate on the role of the Labour inspectors

to monitor and enforce compliance orders

5. Explain the purpose of the Occupational

Health and Safety Act 85 of 1993

6. Discuss the purpose and application of the

Employment Equity Act (EEA)
UNIT 3: LABOUR
LEGISLATION

7. Explain the implementation of affirmative

action

8. Examine the dispute resolution procedures as

provided in the EEA

9. Discuss the purpose and application of the

LRA

10. Discuss the framework of the LRA

11. Summary
 INTRODUCTIO
Nany right to basic conditions of employment
 Employees were not given
in terms of our common law

 This created a situation where employees entered into contracts of

employment that contained either conditions of employment that
where to their detriment or contained no conditions of employment
at all.

 Our Constitution in section 23 stipulates that all employees are

entitled to fair labour practices, which include minimum conditions of
employment.

 The Basic Conditions of Employment Act 75 of 1997(BCEA) was

enacted to provide for minimum terms and conditions for all
employees.
 THE PURPOSE AND IMPACT OF THE
BCEA
The BCEA
economic
was written for a specific purpose, which was to advance

development and social justice by fulfilling the primary objectives of the

Act.

The Primary of objectives of the Act are:

 To give effect to and regulate the right to fair labour practices

conferred by section 23(1) of the Constitution

 By establishing and enforcing basic conditions of employment; and

 By regulating the variation of basic conditions of employment

 To give effect to obligations incurred by the Republic as member state

of the International Labour Organisation
 MINIMUM CONDITIONS OF
E MPLOYMENT
The BCEA regulates the basic conditions of employment such as working hours, leave, particulars
of employment, notice periods at termination of contract and the variation of basic conditions.

 Regulation of working time

 Overtime

 Compressed working week and averaging of hours

 Meal intervals and weekly rest periods

 Daily and weekly rest periods

 Night work

 Public holidays
 LEAV
E
 Annual leave: leave with full pay. Minimum of
21 consecutive days’ leave in a 12 month
leave cycle

 Maternity leave: An employee is entitled to at

least 4 consecutive months’ unpaid maternity
leave

 Family responsibility leave: only employees

who has been employed for longer than 4
months and who works for an employer for
at least 4 days a week is entitled to paid
family responsibility leave
 PARTICULARS OF EMPLOYMENT
This section is not applicable to employees who work less than 24
hours in a month. An employee is entitled to certain written
particular of employment when employment commences

The information contained in written particulars can include:

 Information of employer and employee
 Employee’s occupation and place of work
 The date of commencement of duties
 Ordinary hours and days of work
 Remuneration including overtime pay and payment in kind and the value thereof
 Intervals of payment (per week, per month)
 Deductions from remuneration
 Leave
 Notice period
 With fixed term contract the date of termination of employment
 Council or sectorial determinations applicable and
 List of any other documents that form part of the contract of employment
 TERMINATION OF
EMPLOYMENT
 Chapter 5 of the BCEA on termination of employment does not apply to an employee
who works less than 24 hours per month for an employer.

 Take note that adhering to these notice periods will not mean that the dismissal is
automatically fair; fairness will still need to be proven by the employer with reference
to fair reason and fair procedure followed.

The minimum periods of notice to terminate services are as follows:

 1 weeks’ notice if the employee < 6 months or less
 2 weeks’ notice if the employee > 6 months, but less than a year
 4 weeks’ notice if the employee has been employed > 1 year or more
 Notice to domestic and farm workers will be 4 weeks once they have completed 6
months of employment
 Notice period for employees who have worked for more than 1 year may be shortened
by
collective agreement to no less than 2 weeks’ notice

Notice must be given in writing unless the employee is illiterate, in which case the notice
must
be explained in an official language.
 MONITORING AND ENFORCEMENT OF
LEGAL PROVISIONS

 Promotion, monitoring and enforcement of the provisions of the BCEA is ensured by

investing Labour inspectors with wide powers to issue compliance orders against
employers who fail to comply

 Labour inspectors may enter and investigate the workplace without notice or a
warrant at any reasonable time however this does not apply to a private dwelling.

 Labour inspectors may endeavour to secure compliance with employment laws by

securing undertakings from employers or issuing compliance orders.

 The labour inspector can secure a written undertaking and may also issue a compliance
order
 HEALTH AND
SAFETY
 Employers have the duty to take care of the health
and safety of their employees

 Health and safety legislation in the form of the

Occupational Health and Safety Act 85 of
1993 (OHASA) mandates the common law
duty of the employer

 Common law position

 Compensation for Injuries and Diseases Act 130 of 1993

(COIDA) makes provision for compensation for injuries
suffered or sustained by employees at workplace.

 Scope of OHASA covers private and public sector

 PURPOSE AND APPLICATION OF
THE

EMPLOYMENT EQUITY ACT
The Employment Equity Act 55 of 1998 gives effect to section 9 of the
(EEA)
Constitution regarding equality.

 Section 9 of the Constitution consists of 5 subsections

 Section 9(1) : equality

 Section 9(2) : affirmative action measures
 Section 9(4) : unfair discrimination
 Section 9(5) :presumption of unfairness

 The EEA core purpose is to highlight need for anti-discriminatory and

affirmative action measures to provide for equality and the illumination of
discrimination in the workplace. The principle objective of the EEA is to attain
equity in employment through promoting equal opportunities and fair
employment practices.
 UNFAIR DISCRIMINATION AND
AFFIRMATIVE ACTION

 Section 6 (1) of the EEA prohibits unfair discrimination in

South African workplaces.

 Only unfair discriminating is prohibited not

discrimination per se
 Direct and indirect unfair discrimination is prohibited
 It only prohibits unfair discrimination in employment
policies and practices
 The provision contains a list of twenty grounds on which
discrimination is prohibited (not a closed list as can also
include arbitrary grounds)
 The EEA has also declared harassment to be discrimination
and that unequal pay for equal work will also be seen as a
form of unfair discrimination.
 Test for unfair discrimination
 DIRECT AND INDIRECT
DISCRIMINATION
 The Constitution and the EEA prohibits direct and indirect unfair discrimination

 Direct discrimination : Where a person (employee) is treated differently because he or she belongs to
a specific category or group and treating that person differently on that criterion is to their
disadvantage.

 Indirect discrimination arises where the employer uses seemingly neutral criteria to differentiate
between people (employees), but these supposed objective criteria nonetheless have a
discriminatory effect on the group or individual.

 Application of unfair discrimination : Section 6 of the EEA protects all employees against unfair
discrimination except those specifically excluded. The EEA and therefore unfair discrimination
also apply to job applicants

 Grounds for discrimination

 AFFIRMATIVE
ACTION
 Affirmative action measures are measures designed to ensure that suitably qualified
persons from designated groups have equal employment opportunities and are equitably
represented at all occupational levels.

 Only people from designated groups may benefit

 Affirmative action measures are measures that are aimed in general to ensure equal
employment opportunities and equitable representation of suitably qualified people from
designated groups in all occupational categories and levels in the workforce.

 Employment equity plan : the EEA provides for the procedures for
the
implementation of affirmative action through employment equity plans.
PURPOSE AND APPLICATION OF THE
LABOUR RELATIONS ACT
legislation enacted(LRA)
 The Labour Relations Act is the primary labour
to give effect to section 23 of the
Constitution.

 The main objectives of the LRA are to

 advance economic development

 social justice
 labour peace
 democratisation of the workplace.

 To achieve these goals, the LRA further stipulate

primary objectives that if furthered will mean that
the main objective is reached.
 FRAMEWORK OF THE
LRA

CCMA,
Bargainin Labour
g and Trade Workplac Court and
statutory unions e Labour
councils Forums appeal
court
 SUMMA
RY
 There are labour
legislation
various which have been
enacted to regulate the
employment relationship.

 They are the main or

primary legislation that has
been written to give effect to
fair labour practices and
equality as contained in our
Constitution.

 Our is at the
Constitution
forefront of all legislation
which has been enacted