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Basic Conditions of Employment Act Amendments

by , 18 September 2014
ACT
To amend the Basic Conditions of Employment Act, 1997, so as to substitute certain definitions; to prohibit employers from requiring employees to make payments to secure employment and from requiring employees to purchase goods, services or products; to prohibit anyone from requiring or permitting a child under the age of 15 years to work; to make it an offence for anyone to require or permit a child to perform any work or provide any services that place at risk the child's well-being; to provide for the Minister to publish a sectoral determination for employees and employers who are not covered by any other sectoral determination; to provide for the Director-General to apply to the Labour Court for an employer to comply with a written undertaking by the employer; to provide for a compliance order; to delete certain obsolete provisions; to provide the Labour Court with exclusive jurisdiction in respect of certain matters; to provide for certain offences and penalties; to increase the penalties for certain offences; and to provide for matters connected therewith


BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-
 
 
Amendment of section 1of Act 75 of 1997, as amended by section 40 of Act 65 of 2002, section 26 of Act 68 of 2002 and section 25 of Act 52 of 2003
 
1.  Section 1 of the Basic Conditions of Employment Act, 1997 (hereinafter referred to        5
as the principal Act) is hereby amended-
(a)    by the substitution for the definition of "sector" of the following definition: " 'sector' means an industry or a service or part of an industry or a service and, in respect of a sectoral determination  made in terms of
section  55(8),  means  the  employers  and  employees covered  by  that   10
determination;"; and
(b)    by the substitution for the definition of "serve" of the following definition:  " 'serve' means to send by electronic mail, registered post, telegram, [telex,] telefax or deliver by hand or any prescribed method of service;".
 
Insertion of section 33A in Act 75 of 1997
 
2.  The following section is hereby inserted in the principal Act after section 33: "Prohibited  conduct  by  employer
33A. (I ) An employer must not-
(a)    require or accept any payment by or on behalf  of an employee or         5 potential employee in respect of the employment of, or the allocation
of work to, any employee; or
(b)    require an employee or potential employee to purchase any goods, products or services from the employer or from any business or person nominated by the employer.                                                                                                      I0
(2) Subsection  (l )(b)  does not  preclude  a provision  in  a contract  of employment or collective  agreement in terms of which an employee is required to participate in a scheme involving the purchase of specific goods, products or services, if the purchase is not prohibited by any other statute and-                                15
(a)   the employee receives a financial benefit from participating in the scheme; or
(b)   the price of any goods, products  or services provided  through  the scheme is fair and reasonable.".
Substitution of section 43 of Act 75 of 1997                                                                           20
3.  The following section is hereby substituted for section 43 of the principal Act: "Prohibition of [employment  of)  work  by  children
43.(I ) [No] Subject to section 50(2)(b), a person [may employ] must not require or permit a child to work, if the child-
(a)    [who] is under 15 years of age; or                                                              25
(b)    [who] is under the minimum school-leaving age in terms of any law[,
if this is 15 or older].
(2)    [No]     person [may employ] must not require or permit a child  [in employment] to perform  any work or provide any services-
(a)    that [is] are inappropriate for a person of that age;                                     30
(b)    that [places] place at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development.
(3)    A person  who  [employs] requires  or permits  a child  to work in contravention of subsection (I ) or (2) commits an offence.".
 
Substitution of section 44 of Act 75 of 1997                                                                           35
 
4.  The following section is hereby substituted for section 44 of the principal Act:
 
"[Employment of) Regulations  on work by children  [of 15 years or older]
 
44. (I ) Subject to section 43(2), the Minister may, on the advice of the Commission,  make  regulations  to prohibit  or place  conditions  on  [the       40
employment of) work by children who are at least 15 years of age and are no longer subject to compulsory schooling in terms of any law.
(IA)  The  Minister  may,  on  the  advice  of  the  Commission,  make regulations to give effect to South Africa's international  law obligations dealing with work by children.                                                                                        45
(2) A person who [employs] requires or permits a child to work in contravention of [subsection (1)] any regulation made in terms of this section commits an offence.".
 
 
Substitution of section 45 of Act 75 of 1997
 
5.  The following section is hereby substituted for section 45 of the principal Act: ''Medical   examinations
45. The Minister may, after consulting the Commission, make regula­  tions  relating  to  the  conduct  of  medical  examinations  of  children  [in                   5 employment] who perform   work.".
 
Amendment of section 46 of Act 75 of 1997
 
6.    Section  46  of  the  principal  Act  is  hereby  amended  by  the  substitution  for paragraphs (a) and (b) of the following paragraphs, respectively:
"(a) assist [an employer to employ] any person  to require  or permit a child !Q    10 work in contravention of this Act; or
(b)   discriminate against a person who refuses to permit a child to [be employed] work in contravention of this Act.".
 
Substitution of section 47 of Act 75 of 1997
7.  The following section is hereby substituted for section 47 of the principal Act:            15
"Evidence of age
47. In any proceedings in terms of this Act, if the age of[an employee] any person is a relevant factor for which insufficient evidence is available, it is for the party who alleges that the [employment] work by  that person
complied with the provisions of this Chapter to prove that it was reasonable      20
for that party to believe, after investigation, that the person was not below the permitted age in terms of section 43 or 44.".
 
Amendment of section 55 of Act 75 of 1997, as amended by section 11of Act of 2002
 
8.  Section 55 of the principal Act is hereby amended-
(a)    by the substitution for subsection (1) of the following subsection:                       25
"(I) After considering the report and recommendations of the Commission contemplated in section 54(4), the Minister may make a sectoral determination for one or more sector and area or as contemplated by subsection (8).";
(b)    by  the  substitution  in  subsection  (4)  for paragraph  (b) of  the  following     30
paragraph:
"(b) provide for the adjustment of remuneration by way of­
ill minimum rates [of remuneration]; or
(ii)  minimum increases;";
(c)    by  the  substitution  in  subsection  (4)  for paragraph  (g) of  the  following     35
paragraph:
"(g) prohibit or regulate task-based work, piecework, home work, sub-contracting and contract work;";
(d)    by the deletion of the word "and" at the end of paragraph (m) and the addition
of the following paragraphs:                                                                                    40
"(o) taking into account the provisions of section 21(8) of the Labour Relations Act, 1995, set a threshold of representativeness at which a trade union will automatically have the organisational rights contemplated in sections 12 and 13 of the Labour Relations Act,
1995,  in  respect   of  all  workplaces   covered  by   the  sectoral      45
determination; and
(p) establish one or more methods for determining the conditions of service for labour tenants who has a right to occupy and to use a part of a farm as contemplated in section 3 of the Land Reform (Labour
Tenants) Act, 1996 (Act No. 3 of 1996), for the purpose of section     50
4(3);";
 


This gazette is also available free online at www.gpwonline.co.za

 

(e)    by  the  substitution  in  subsection  (7) for  paragraph  (b) of  the  following paragraph:
"(b) covering employees covered by a collective agreement  concluded in a statutory council regulating any matter [in a sector and area in
which a statutory council is established and] in respect of which             5 that statutory council has concluded a collective agreement;"; and
(fJ    by the addition of the following subsection:
"(8)  Subject  to  the  provisions  of  subsection  (7),  the  Minister   may publish a sectoral determination that applies to employers and employees
who are not covered by any other sectoral determination.".                           10
 
Amendment of section 68 of Act 75 of 1997, as amended by section 13 of Act 11 of 2002
 
9.  Section 68 of the principal Act is hereby amended-
(a)    by the substitution for subsection (I ) of the following subsection:
"( I ) A labour inspector who has reasonable grounds to believe that an      15
employer has not complied with any provision of this Act [must] may endeavour to secure a written undertaking by the employer to comply with the provision."; and
(b)    by the addition of the following subsection:
"(3) If an employer fails to comply with a written undertaking given            20
by the employer in terms of this section, the Director-General may apply to the Labour Court for an order in terms of section 73 directing the employer to comply with the undertaking.".

 
Amendment of section 69 of Act 75 of 1997, as amended by section 14 of Act 11 of 2002   25
 
10.  Section 69 of the principal Act is hereby amended­
(a)    by the deletion in subsection (2) of paragraph (d);
(b)    by the insertion after subsection (2) of the following subsection: "(2A) A compliance order may also set out the date-
(a)    by which the employer should serve any representations it may wish   30
to make with the Department and the Labour Court; and
(b)    on  which,  if  the  employer  does  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 in terms of section 73.";                                                                                                         35
(c)    by  the  substitution  in  subsection  (3) for  paragraph  (a) of  the  following paragraph:
"(a)A [labour inspector must serve a] copy of the compliance order  must  be  served on the employer named in it, and on each employee affected by it [unless] or, if this is impractical, [and] on a representative                              40
of the employees."; and
(d)    by the substitution for subsection (5) of the following subsection:
"(5) An employer must comply with the compliance order within the time period stated in the order [unless the employer objects in terms of
section 71].".                                                                                                   45
 
Amendment of section 70 of Act 75 of 1997, as amended by section 15 of Act 11 of 2002
 
11.   Section  70 of  the principal  Act  is  hereby  amended  by  the  substitution  for paragraphs ( c) and (d) of the following paragraphs, respectively:
"(c) any proceedings have been instituted for the recovery of that amount [or, if             50
proceedings  have  been  instituted],  unless  those  proceedings  have  been withdrawn; or
(d)   that amount has been payable by the employer to the employee for longer than 12 months  before  the  date on  which  a complaint  was  made  to  a labour
inspector by or on behalf of the employee or, if no complaint was made, the       55
date  on  which  a  labour  inspector  first  endeavoured  to  secure  a written undertaking by the employer in terms of section 68 or issued  a compliance order in terms of section 69.".
 
Repeal of sections 71 and 72 of Act 75 of 1997
 
12. Sections 71 and 72 of the principal Act are hereby repealed.
 
Substitution of section 73 of Act 75 of 1997, as amended by section 16 of Act 11 of                    5
2002
 
13. The following section is hereby substituted for section 73 of the principal Act: "Order may be made order of Labour Court
73. ( 1) The Director-General may apply to the Labour Court on the date specified  in  the  compliance  order in  terms  of  section  69(2A)(b) or,  with    10 further notice to the employer, on a subsequent date for a compliance order
to be made an order of the Labour Court [in terms of section 158(l)(c) of the Labour Relations Act, 1995,] if the employer has not complied with the order [and has not lodged an objection against the order in terms of
section 71(1)].                                                                                                      15
(2) [The Director-General may apply to the Labour Court for an order of the Director-General in terms of section 71(3) to be made an order of the Labour Court in terms of section 158(l)(c) of the Labour Relations Act, 1995, if the employer has not complied with the order
and has not appealed against the order in terms of section 72(1)] After  20
oon•idering ony'P"" ntruion• mOOo to it, tho L•hour Court m•y '""'ru> I
order in terms of subsection  (1) requiring-
(a)    the employer to comply with the provisions of this Act;
(b)    subject to section  70(d), the payment  of  any  amount owing to  an employee; or                                                                                                25
(c)the payment  of a fine calculated in terms of Schedule 2 to this Act.".
 
Amendment of section 74 of Act 75 of 1997, as amended by section 17 of Act 11 of
2002
14. Section 74 of the principal  Act is hereby amended-
(a)       by the substitution in subsection (2) for the words preceding paragraph (a) of     30
the following words:
"If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act if [-]
the claim has not prescribed.";                                                                        35
(b)       by the deletion in subsection (2) of paragraphs (a), (b) and (c); and
(c)       by the insertion after subsection (2) of the following subsection:
"(2A) No  compliance  order may  be issued  or enforced  and no  other legal proceedings may be instituted or enforced in respect of any claim

that has been determined in terms of this subsection (2).".                          40
 
Amendment of section 77 of Act 75 of 1997
 
15. Section 77 of the principal Act is hereby  amended-
(a)       by the substitution for subsection (1) of the following subsection:
"(1) Subject to the Constitution and the jurisdiction  of the Labour Appeal Court, and except where this Act provides otherwise, the Labour                   45
Court has exclusive jurisdiction in respect of all matters in terms of this Act[, except in respect of an offence specified in sections 43, 44, 46, 48, 90 and 92]."; and
(b)       by the insertion after subsection (1) of the following subsection:
"(IA) The Labour Court has exclusive jurisdiction  to grant civil relief      50
arising from a breach  of  sections 33A, 43, 44, 46, 48, 90 and  92.".

16. Section 93 of the principal Act is hereby amended by the substitution for the table of the following table:
 
"OFFENCES AND PENALTIES
 
Section under which convicted Maximum term of imprisonment
Section 33A 3 years
Section 43 [3] £ years
Section 44 [3] £ years
Section 46 [3] £ years
Section 48 [3] £ years
Section 90(1) and (3) 1 year
Section 92 1 year
 
Amendment of Schedule two to Act 75 of 1997
 
17. The principal Act is hereby amended by the substitution for Table One of the following table:
 
"TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT
 

No previous failure to comply
[RlOO] R300 per employee in respect of whom the failure to comply occurs
A previous failure to comply in respect of the same provision [R200] R600 per employee in respect of whom the failure to comply occurs.
A previous failure to comply within the previous  12 months or two previous failures to comply in respect of the same provision within three years [R300] R900 per employee in respect of whom the failure to comply occurs
Three previous failures to comply in respect of the same provision within three years [R400] R1200 per employee in respect of whom the failure to comply occurs
Four previous failures to comply in respect of the same provision within three years [RSOO] R1500 per employee in respect of whom the failure to comply occurs
 
Short title
 
18. This Act is called the Basic Conditions of Employment Amendment Act, 2013, and comes into operation on a date fixed by the President by proclamation in the Gazette.

 
GOVERNMENT NOTICES
 

 

DEPARTMENT OF LABOUR

No. 655                                                                                                                             29 August 2014
 

 
SCHEDULE REGULATIONS  AMENDED
Clause 1(2) of the regulations is hereby amended by the substitution of the clause by the following  clause-
 
Whenever  the expression  "Department  of  Labour"  or "Chief Director  Provincial Operations" appears in the Act or in these regulations, it means-
 
(a)         In the province of Eastern Cape, the Chief Director Provincial Operations, Department of Labour, Private Bag X9005, East London. 5200;
(b)         In the province of Free State, the Chief Director Provincial Operations, Department of Labour, P 0 Box 522, Bloemfontein. 9300;
(c)          In the province of Gauteng, the Chief Director Provincial Operations, Department of Labour, P 0 Box 4560, Johannesburg. 2000;
(d)         In the province of KwaZulu Natal, the Chief Director Provincial Operations, Department of Labour, P 0 Box 940, Durban. 4000;
(e)          In  the  province  of  Limpopo,  the  Chief  Director  Provincial  Operations,
Department of Labour, Private Bag X9368, Polokwane. 0700
(f)      In the province of Mpumalanga, the Chief Director Provincial Operations,
Department of Labour, Private Bag X7263, Witbank. 1035
(g)         In the province of Northern Cape, the Chief Director Provincial Operations,
Department of Labour, Private Bag X5012, Kimberley. 8300
(h)          In the  province  of  North West,  the  Chief  Director Provincial Operations,
Department of Labour, Private Bag X2040, Mmabatho.2735
(i)           In the province of Western Cape, the Chief Director Provincial Operations, Department of Labour, P 0 BOx 872, Cape Town. 8000
 
 
 
Clause 9 of the principal regulations is amended by the substitution of the following clause for 9-
 
9.            Securing an undertaking
 
((1) Any request in writing to comply with an undertaking in terms of section 68{1A)(b) must be in the form of BCEA BA or contain the information required by that form.]
 
(2] (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.
 
[3] (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.
 
[4] (3) A receipt for any record, document, article, substance or machinery removed in terms of section 66(3)(b) must be in the form of BCEA 11 or contain the information required by that form.

 
Clause 11 of the principal regulations is amended by the deletion of the following clause-
 
[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))
 
 
Amendment of BCEA 1A to BCEA 1K
 
BCEA 1A to K is hereby amended by the substitutions of the summaries by the following   summaries-
 
Amendment of BCEA 6 form
 
BCEA 6 is hereby amended by the substitution of that form by the following form- Amendment of BCEA BA form
BCEA 8A is hereby amended by the deletion of that form- Amendment of BCEA 8 form
BCEA8 is hereby amended by the substitution of that form by the following form- Amendment of BCEA 9 form
BCEA 9 is hereby amended by the substitution of that form by the following form- Amendment of BCEA12 form
BCEA 12 is hereby amended by the substitution of that form by the following form- Amendment of BCEA 13 form
BCEA 13 is hereby amended by the deletion of that form-

 

 
(Regulation 2)
 
BASIC CONDITIONS OF EMPLOYMENT ACT, 1997 SUMMARY TO BE KEPT BY AN EMPLOYER IN TERMS OF SECTION 30

BCEA 1A

The following  is a  summary  of the  provisions  of the  most  important  sections  of the  Basic Conditions of Employment Act, 1997, as amended.
 
1.                 APPLICATION OF THE ACT : SECTION 3
 
The Act applies to all employees and employers except members of the State Security Agency and unpaid volunteers working for an organisation with a charitable purpose.
 
The basic conditions of employment contained in the Act form part of the contract of employment of employees covered by the Act.  Some, but not all, basic conditions of employment may be varied by individual or collective agreements in accordance with the provisions of the Act. (see paragraph 7 below).
 
2.                 REGULATION OF WORKING TIME : CHAPTER TWO
 
2.1        Appl ication
 
This chapter does not apply to senior managerial employees, employees engaged as sales staff who travel and 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-­
(a)  45 hours in any week;
(b)  nine hours in any day if an employee works for five days or less in a week; or
(c)  eight hours in any day if an employee works on more than five days in a week.
 
2.3         Overtime : Section 10
 
2.3.1        An employer may not require or permit an employee-­
(a)  to work overtime except by an agreement;
(b)  to work more than ten hours' overtime a week.
 
2.3.2        An agreement  may not require or permit an employee to work more than 12 hours on any day.
 
2.3.3        A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months.
 
2.3.4        Overtime must be paid at 1.5 times the employee's normal wage or an employee may agree to receive paid time off.

 
2
 

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-
(a)         more than 45 ordinary hours in any week;
(b)         more than ten hours' overtime in any week; or
(c)          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 such_a collective agreement may not work more than­
(a)  an average of 45 ordinary hours in a week over the agreed period;
(b)  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-
(a)  reduce the meal interval to 30 minutes;
(b)  dispense with the meal interval for employees who work_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 18h00 and 06h00 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--
(a)    of any health and safety hazards; and
(b)   the right to undergo a medical examination.

 
3
 
2.10      Public holidays : Section 18
2.10.1     Employees must be paid their ordinary pay 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 may be exchanged with another day_by agreement.
 
3.                 LEAVE : CHAPTER THREE
 
3.1        Appl ication
 
The chapter on leave does not apply to an employee who works less than 24 hours a month for an employer and to leave granted_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 annual 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
 
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:
(a)  full name and address of the employer;
(b)  name and occupation of the employee, or a brief description of the work ;
(c)  various places of work;
(d)  date of employment;
(e)  ordinary hours of work and days of work;
(f)   wage or the rate and method of calculating;
(g)  rate for overtime work;
(h)  any other cash payments;
(i)   any payment in kind and the value thereof;
U) frequency of remuneration;
(k) Any deductions;
(I)     leave entitlement;
(m)period of notice or period of contract;
(n)  description  of any council or sectoral determination  which  covers the employer's business;
(o)  period of employment with a previous employer that counts towards the period of employment;
(p)  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:
(a)  employee's name and occupation;
(b) time worked;
(c)  remuneration paid;
(d)  date of birth if under 18 years of age; and
(e)  any other prescribed information.
 
4.5              Information about remuneration : Section 33 and 33A
 
4.5.1  The following information must be given in writing when the employee is paid:
(a)      employer's name and address;
(b)      employee's name and occupation;
(c)      period of payment;
(d)      remuneration in money;

 
5
 
(e)      any deduction made from the remuneration;
(f)       the actual amount paid; and
(g)      if relevant to the calculation of that employee's remuneration­
(i)  employee's rate of remuneration and overtime rate;
(ii)       number of ordinary and overtime hours worked during the period of payment;
(i)        number of hours worked on a Sunday or public holiday during that period; and
(ii)       if an agreement to average working time has been concluded, the total number of ordinary and overtime hours worked in the period of averaging.
 
4.5.2        An employer may not:
(a)      require or accept any payment by or on behalf of an employee or potential employee in respect of the employment of, or the allocation of work to, any employee.
(b)      require an employee or potential employee to purchase any goods, products or services from the employer or from any business or person nominated by the employer.
 

4.6         Deductions and other acts concerning remuneration : Section. 34 and 34A

 
4.6.1        An employer may not deduct money from an employee's remuneration unless -
(a)         The employee agrees in writing to the deduction of a specific debt;
(b)         The deduction  is made in terms of a collective  agreement,  law, court order or arbitration award
 
4.6.2        A deduction in respect of damage or loss caused by the employee may only be made with agreement and after the employer has followed a fair procedure
 
4.6.3        Employers must pay deductions and employer contributions to benefit funds to the fund within seven days.
 

4.7         Calculation of remuneration and wages : 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 fluctuates significantly from period to period, any payment must be calculated by reference to remuneration or wage during--
(a)         the preceding 13 weeks; or
(c)       if employed for a shorter period, that period.
 
4.7.4        Employers and employees should consult a schedule published in the Government Gazette to determine whether a particular category of payment forms part of an employee's remuneration for the purpose of calculations made in terms of this Act.
 

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.

 
6
 
 
5.2         Notice of termination of employment : Section 37
 
5.2.1       A contract of employment may be terminated on notice of not less than--
(a)         one week, if the employee has been employed for six months  or less;
(b)         two weeks, if the employee has been employed for more than six months but not more than one year;
(c)         four weeks, if the employee has been employed for one year or more, or if a farm worker or domestic worker has been employed for more than six months.
 
5.2.2       A collective agreement may shorten the four weeks  notice period to not less than two weeks.
 
5.2.3        Notice must be given in writing except when it is given by an illiterate employee.
 
5.2.4       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 or whose contract of employment is terminated in terms of section 38 of the Insolvency Act, 1936 is entitled to one week'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 require or permit a child to work under 15 years of age.
 
6.2         Children  under  18 may  not be  required or  permitted to  perform work  or  provide services that are inappropriate for their age or that place them at risk.
 
6.3         Causing, demanding or requiring 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:
(a)    the duty to arrange working time with regard to the health and safety and family responsibility of employees (S.7,9 and 13);
(b)    reduce the  protection afforded to employees who  perform night work(S.  17(3) and (4));
(c)   reduce annual leave to less than two weeks (S. 20);
(d)   reduce entitlement to maternity leave (S 25);
(e)   reduce entitlement to sick leave to the extent permitted (S. 22-24); and
(f)    prohibition of child and forced labour (S.48).

 
7
 
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 order may be made an order of the Labour Court. S68 - 73)
 
9.3        Employees may not be discriminated against for exercising their rights in terms of the Act (S. 78 - 81).
 

10.          PRESUMPTION AS TO WHO IS AN EMPLOYEE  : SECTION 83A

 
10.1     A person who works for, or provides services to, another person is presumed to be an employee if -
 
(a)  his or her manner or hours of work are subject to control or direction;
(b)  he or she forms part of the employer's organisation;
(c)  he or she has worked for the other person for at least 40 hours per month over the previous three months;
(d)   he or she is economically dependant on the other person;
(e)   he or she is provided with his or her tools or work equipment; or
(f)    he or she only works for, or renders service to, one person.
 
10.2     If one of these factors is present, the person is presumed to be an employee until the employer proves that he or she is not.
 

11.        GENERAL

 
It is an offence to--

 
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(a)  obstruct or attempt to  influence improperly a person who  is performing  a function  in terms of the Act;
(b)  obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document;
(c) pretend to be a labour inspector or any other person performing a function in terms of the Act;
(d)  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;
(e)  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;
(f)   hinder or obstruct a labour inspector or any other person performing a function in terms of the Act.
(S. 92)



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