SECTION B: BCEA (25 MARKS)

Question 1

NB!

Application of the Basic Conditions of Employment Act (BCEA)

Answer 1

All employers & employees in the public & private sectors except:
- members of the State Security Agency
- unpaid volunteers working for charitable organizations (Hospice/community organizations).

Question 2

NB!

Exclusions of the Basic Conditions of Employment Act (BCEA)

Answer 2

1. Partial exclusion:
   - persons undergoing vocational training.
   - employees on a merchant ship, covered by the Merchant Shipping Act, 57 of 1951, except to the extent provided for in a sectoral determination and the National Minimum Wage Act, 2018.
2. Chapter 2 (working time, hours of work, compressed working week, meal intervals,
   Sunday work, night work & public holidays) not applicable to:
   - senior managerial employees.
   - sales staff who travel to customers & who regulate their own working hours.
   - employees who work less than 24 hours a month for an employer.
3. Employees who work less than 24 hours a month for an employer are also excluded from Chapter 3 (leave), chapter 4 (particulars of Employment & remuneration), & Chapter 5 (termination of Employment).
4. Employees engaged in unexpected work, which must be done without delay & which can’t be performed during ordinary work hours, excluded from ordinary hours of work, overtime, rest periods, night work & public holidays.
5. Employees who earn more than a maximum amount fixed from time to time by the minister (from April 2024 - R 254 371.67 per year).
6. Employees employed in small businesses (less than 10 employees - conditions of service prescribed by Ministerial determination).
7. Employees who employ less than 5 employees.

Question 3

NB!

Definition: Employee

Answer 3

1. Any person, excl. independent contractors, who work for another person or the state and who receive or are entitled to receive remuneration.
2. Any person who assists in carrying on or conducting the business of an employer.

Question 4

NB!

Definition: Farm Worker

Answer 4

1. An employee who is employed mainly in or in connection with farming activities.
2. Includes employees who wholly or mainly perform domestic work in a home on a farm.

Question 5

NB!

Definition: Senior Managerial Employee

Answer 5

1. An employee who has the authority to hire, discipline, and dismiss employees.
2. Represents the employer internally and externally.

Question 6

NB!

Temporary Employment Service (TES)

Answer 6

Any person who, for a reward, procures for/or provides to a client, other persons who render services/perform work for that client, and who are remunerated by the temporary employment service (labour broker).

Question 7

NB!

Regulation of Working Time (Section 7)

Answer 7

An employer must organize working time with employees subject to:
1. Legislation on occupational health & safety.
2. The health and safety of employees.
3. The code of good practice on the regulation of working time.
4. Family responsibilities of employees.

Question 8

Ordinary Hours of Work

Answer 8

Employer may not require/permit employee to exceed:
- Week: 45 hours
- Day: 5-day week, max. 9 hours a day.
More than 5 days a week, max. 8 hours a day.
- By agreement: hours extended by 15 min per day to maximum of 60 min per week when required to serve members of public as part of duties to enable employee to continue performing duty after normal hours.

Question 9

Regulation of Daily Wage Payment (as per National Minimum Wage Act, 2018)

Answer 9

A new section 9A introduces the regulation of the daily wage payment & provides that:
- An employee or a worker who works less than 4 hours on any day must be be paid 4 hours of work on that day.
- This section applies to employees/workers earning less than earnings threshold set by minister.

Question 10

National Minimum Wage Act, 2018 (as amended)

Answer 10

1. It’s important to note that President accented to this act which has impact on remuneration of employees.
2. It applies to all workers & their employers except:
   - Members of the SANDF
   - National Intelligence Agency
   -The South African Secret Service.
   - Volunteers.
3. Act was amended by National Minimum Wage Amendment Act, 3/2020.
4. Act does not refer to employee, but rather worker, meaning any person who works for another & receives/is entitled to receive, any payment for that work whether in money or in kind.

Question 11

Purpose of the National Minimum Wage Act, 2018

Answer 11

To advance economic development & social justice by:
- Improving wages of lowest paid workers.
- protecting workers from unreasonably low wages.
- Preserving the value of the National Minimum Wage.
- Promoting Collective Bargaining.
- Supporting Economic Policy.

Question 12

The calculation of a wage for the purposes of this Act is the amount payable in money for ordinary hours of work, excluding:

Answer 12

• any payment made to enable a worker to work, including any transport, equipment, tool, food, accommodation allowance, unless otherwise specified in sectorial determination.
• Any payment in kind, including board or accomodation, unless otherwise specified in a sectoral determination.
  -Gratuities incl. bonuses, tips or gifts.
• Any other prescribed category of payment

Question 13

What is the national minimum wage?

Answer 13

• As from 01 March 2024: R 27.58 for ea ordinary hour worked.
• An exception used to apply to farm workers (R 21.69) and domestic workers (R 19.09). It is now also R27.58 for ea ordinary hour worked.
• Schedule 2 of the act provides for learnership allowances that depend on the NQF level.

Question 14

NB!

Overtime (Section 10)

Answer 14

1. Only by Agreement.
2. Lapses after 1 year if entered into at the commencement of employment or within 3 months thereafter.
3. Maximum: No limit per day
4. Employee not permitted to work more than 12 hours per day (normal & overtime hours)/10 hours per week overtime.
5. Collective agreement increases to 15 hours per week for a maximum of 2 months in any 12-month period.

• Overtime paid @ Time & a Half (or time off).
• By agreement, employee can get paid time off in lieu of overtime pay @ Time & a Half.
• Paid time off must be granted within 1 month of the employee becoming entitled to it.

Question 15

NB!

Compressed Working Week (Section 11)

Answer 15

Written agreement (12 hours per day without overtime payment (including meal intervals) provided:
- Maximum working hours per week: 45 hours.
- Maximum overtime per week: 10 hours.
- Not more than 5 days per week.
A compressed working week makes it possible for employees to work 4 or 4.5 days per week.

Question 16

NB!

Averaging of Hours of Work (Section 12)

Answer 16

Collective agreement / ordinary hours of work and overtime averaged over period of four months.
Conditions:
- 45 ordinary working hours per week
- 5 hours overtime per week
First 2 agreements lapse after 12 months (to be reviewed annually), after which, parties may agree to extend indefinitely.

Question 17

Meal Intervals (Section 14)

Answer 17

• After 5 hours of continuous work, a meal interval of 1 continuous hour.
• Meal intervals are unpaid. However, the employee must be paid for the meal interval where required to work or be available for work.
• Can be reduced to not less than 30 minutes, by agreement, in writing.
• Can be dispensed with where Employee works fewer than 6 hours a day.

Question 18

Rest Periods (Section 15)

Answer 18

Employees are entitled to:
1. A daily rest of 12 consecutive hours a day.
2. A weekly rest of 36 consecutive hours which unless otherwise agreed, must include a Sunday.

Question 19

Sunday Work (Section 16)

Answer 19

• If Sunday is normal working day (may be on rotating shift), employee must be paid 1 1/2 for hours actually worked.
• If Sunday is not normal working day, employee must be paid double time for time actually worked, minimum of 1 day’s wages.
• If shift spans Saturday & Sunday & more than half falls on Sunday, employee must be paid Sunday rates for whole shift. If half or more falls on Saturday, employee must be paid Saturday rates for whole shift.
• Employees may be granted pd time off equivalent to rate they would have received for Sunday work. Must be granted within a month of employee becoming entitled to it. However, by written agreement, employee could take leave up to 12 months after becoming entitled to it, leave can be banked for a more convenient time.

Question 20

Night Work (Sec 17) between 18:00 & 06:00.

Answer 20

Night work between 18:00 & 06:00 only permitted if:
- Employee agrees to night work.
- Employee is compensated for night work, in the form of shift allowance (no rate prescribed by law) or by reduction of working hours.
- Transportation is available between employee’s residence & workplace (must be available, employer not required to pay for transport).

Question 21

Night Work (Sec 17) between 23:00 & 06:00.

Answer 21

Night work between 23:00 & 06:00 only permitted if:
- Employer provides info about health & safety hazards associated with this type of work & the employee’s right to a medical examination. Employer required to facilitate & pay for medical exam when employee requests one.
- “Night work on regular basis” defined as work of more than 1 hour between 23:00 & 06:00 on at least 5 occasions per month or 50 occasions per year. If practicable, employee must be transferred to suitable day work if he/she suffers from health condition associated with performance of night work.

Question 22

Public Holidays

Answer 22

Not compulsory to work on public holiday, but may be required in terms of an agreement (collective or individual).

Employees entitled to the following:
- If public holiday falls on day he WOULD normally have worked, employee entitled to double time/ordinary day + what employee earned on that day. (Typically if this was hourly pay & employee did not work a full day, he/she would still get double pay.
- If public holiday falls on day which he/she WOULD NOT normally work, ordinary day’s pay + the amount actually earned that day.
- If public holiday falls on day employee WOULD ordinarily have worked, employee must be paid normal rate of pay.

Question 23

To who don’t Leave Provisions apply?

Answer 23

Do not apply to employees who work less than 24 hours per month.

Question 24

Types of Leave

Answer 24

• Annual Leave
• Sick Leave
• Maternity Leave
• Family Responsibility Leave
• Parental Leave
• Adoption Leave
• Commissioning Parental Leave

Question 25

Annual Leave

Answer 25

1. Entitled to 21 consecutive days fully paid leave after 12 months of service.
2. To be granted within 6 months after end of annual leave cycle.
3. May not run concurrently with Sick Leave, Maternity Leave, or Notice of Termination of service.
4. Can be reduced with days of fully paid casual leave granted by employer at employee’s request.
5. Can be extended by 1 day if public holiday on which employee normally works falls in leave period.
6. Employee is not allowed to work for employer during leave - only at termination of service (may not be traded for money).
7. Payment for a period of leave to be made before the commencement of leave or according to agreement on the normal date of remuneration.
8. Remuneration for leave should be at least equal to normal remuneration for the same time worked.
9. Parties may conclude agreement - leave of 1 day for every 17 days of work or 1 hour for every 17 hours worked.

Question 26

Sick Leave

Answer 26

1. Fully paid sick leave calculated according to 36-month service cycle.
2. Entitled to the number of days he/she would normally have worked in period of 6 weeks (30 days for a 5-day week).
3. During first 6 months - 1 day fully paid sick leave for every 26 days worked.
4. By agreement:
   - Remuneration can be reduced but the number of days must increase.
   - Remuneration not less than 75 % of what he/she would have earned (e.g. entitled to 30 days - R100 day, increased to 40 days - R 75.00 day).
5. A medical certificate must be submitted if absent from work for more than 2 consecutive days or, on more than two occasions in period of 8 weeks.
6. If a resident is on the employer’s premises & not able to obtain medical
   certificate easily, employer not allowed to withhold remuneration unless assistance has been rendered to employee to obtain medical certificate.

Question 27

Maternity Leave

Answer 27

1. Entitled to 4 consecutive months (possible change 2023 Van Wyk).
2. Start any time from 4 weeks before the expected date of birth.
3. May not work for 6 weeks after birth unless declared fit.
4. 3rd Trimester miscarriage or stillbirth, 6 weeks irrespective of commencement of
   maternity leave.
5. Payment of maternity leave not prescribed, can claim UIF.
6. Pregnant employees & lactating mothers not allowed to do work that is hazardous to her or her child.
7. Night work during pregnancy & 6 months after where able to be done.
   - Employer must offer suitable alternative employment (no less favorable than ordinary conditions). Also applies where her work poses a danger to her health or safety or that of her child.

Question 28

Family Responsibility Leave

Answer 28

If employed more than 4 months & working not less than 4 days per week, employee entitled to 3 days paid leave per annual cycle under following circumstances:
1. Illness of employee’s child.
2. Death of employee’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild, or sibling.
Note:
- Employer may require proof of event.
- Unused days do not accrue.
- Number of days & circumstances may vary by collective agreement.

Question 29

Parental Leave

Answer 29

1. Employee who is parent of a child, entitled to 10 consecutive days of parental leave.
2. Leave commences on date of birth or date adoption order is granted.
3. Employee to notify employer in writing of dates on which he intends to commence leave & when employee will return to work.
4. Payment of parental benefits will be determined by the minister, subject to Unemployment Insurance Act, 63 of 2001

Question 30

Adoption Leave

Answer 30

1. An adoptive parent of a child below 2 years is entitled to 10 weeks consecutive
   adoption leave or parental leave.
2. Leave to commence on the date that the adoption order is granted or the child is
   placed in the care of adoptive parents.
3. The employee must notify employer in writing of date on which employee intends to commence leave & when employee will return to work.
4. Payment of adoption benefits to be determined by minister, subject to Unemployment Insurance Act.
5. If 2 parents, 1 must take adoption leave & 1 must take parental leav

Question 31

Commissioning Parental Leave

Answer 31

1. Commissioning parent in surrogate motherhood agreement entitled to commissioning parental leave of 10 weeks.
2. Leave to commence on date of birth as result of the surrogate motherhood agreement.
3. Employee to notify employer in writing of date on which he intends to commence leave & when employee will return to work.
4. Payment of parental benefits determined by minister subject to Unemployment Insurance Act, 63 of 2001.
5. If 2 are commissioning parents, 1 must take commissioning leave & 1 must take parental leave.

Question 32

NB!

Notice

Answer 32

Not applicable to employees working less than 24 hours per month for an employer.
1. Minimum notice of termination:
- 1 week if employed 6 months or less.
- 2 weeks if employed 6 months to 1 year.
- 4 weeks if employed 1 year or more.
- 4 weeks if it is a farm or domestic worker employed more than 6 months.
- A shorter notice period is allowed in terms of collective agreement.
- No agreement may require or permit the employee to give longer notice than the period required of the employer.
- Written notice except for illiterate employees (if unable to understand - must be explained in an official language he understands).
- Right of a dismissed employee to dispute the lawfulness of the dismissal in terms of the Labour Relations Act not affected.
- Employer or employee retains the right to terminate the contract of employment without notice for any cause recognized by the law.
- Employers retain the right to offer payment in lieu of notice.
- In respect of employees who reside in accommodation on the premises of the employer or premises supplied by the employer:
- Employer must provide accommodation for 1 month or until the contract of service is lawfully terminated.

Question 33

NB!

Payment upon Termination of Employment

Answer 33

The employer must pay the employee:
- Any paid time off granted for overtime or Sunday work.
- Remuneration for any period of annual leave that the employee hasn’t taken.
- Annual leave due to employee, due to incomplete annual leave cycle.
- Outstanding wage/salary.
- Notice pay if the notice period is not worked.
- If the employee is dismissed for operational requirements, severance pay must be paid.

Question 34

NB!

Severance Pay

Answer 34

• Operational Requirements: requirements based on economical, technological, structural, or similar requirements of an employer.
• Dismissal on account of operational requirements - severance pay equal to 1 week’s pay for each completed year of continuous service with the employer.
• Employee who unreasonably refuses to accept the offer of alternative employment with the employer or another employer, not entitled to severance pay.
• In the event of a dispute about entitlement to severance pay.
• Employee refers dispute in writing to bargaining council if parties fall under the jurisdiction or CCMA if the council has no jurisdiction.
• Copies of all referral documents to be served on all parties to dispute.
• Council or CCMA attempts to resolve the dispute by conciliation, if unresolved, the employee may refer the dispute to arbitration.
• Should a dispute about dismissal based on the employer’s operational requirements be adjudicated by the Labour Court, it may determine the amount of severance pay and order the employer to pay such an amount.

Question 35

NB!

Certificate of Service

Answer 35

Employee is entitled to service certificate on termination containing the following information:
1. Name of employee.
2. Name & address of employer.
3. Description of council/sectoral service standard.
4. Dates of commencement & termination of service.
5. Type of work or brief description.
6. Remuneration on the date of termination.
7. If required by the employee, reason for termination.

Question 36

NB!

Monitoring & Enforcement

Answer 36

• The obligation to monitor and enforce lies with the Department of Labor (administrative system & labor court).
• Monitoring is done by labour inspectors with wide powers of entry & investigation. Also, have the power to issue compliance orders against employers.
• Should employers not comply with the provisions of the Act, a labour inspector may obtain an agreement between the employer & employee to arrange payment of any amounts owed to the employee.
• The Director General may request the CCMA to make the undertaking an arbitration award.
• If an inspector has grounds to presume that an employer does not comply with the Act’s provisions, he/she may issue a compliance order.

Question 37

A labour inspector (including a bargaining council agent) may promote/monitor/enforce compliance with employment law by:

Answer 37

1. Advising employers/employees of their rights & obligations.
2. Conducting inspections.
3. Investigating complaints.
4. Endeavouring to secure compliance with employment laws by securing written undertakings or issuing compliance orders.
5. Referring disputes to the CCMA concerning failure to comply with this Act, the National Minimum Wage Act, 2018, Unemployment Insurance Act & Unemployment Insurance Contributions Act.
6. Appearing on behalf of the Director General in any proceedings in the CCMA or Labour Court concerning a failure to comply with the legislation referred to above.

Question 38

A Compliance Order must set out the following:

Answer 38

• Name of Employer & location of workplace.
• Provision of Acts not complied with & details of conduct constituting non-compliance.
• Any amount the employer is required to pay the employee/in case of failure to pay national minimum wage, amount that employer is required to pay the employee.
• Steps the employer is required to take to rectify non-compliance.
• Maximum fine that may be imposed upon the employer.

Question 39

Compliance Orders

Answer 39

• A copy of the order must be served on the employer & every employee/representative.
• Failure to serve does not invalidate the order.
• Employer must display a copy of the compliance order prominently at a place accessible to affected employees at the workplace named in it.
• Employers must comply with the compliance order within the time period stated unless the employer refers a dispute concerning the compliance order to the CCMA within that period.
  -The Director General may apply to CCMA for a compliance order to be made an arbitration award in these circumstances, requiring the employer to comply, if it is satisfied that the compliance order was served on the employer & the employer has not referred a dispute.

Section 73A: Any employee/worker may refer the dispute to the CCMA concerning failure to pay any amount owing to that employee/worker in terms of the BCEA, the National Minimum Wage Act 2018, a contract of employment, a sectoral determination, or a collective agreement. Does not apply to employees or workers earning in excess of the threshold prescribed by the minister. Employees/workers other than those mentioned in subsection (1) may institute a claim concerning the failure to pay any amount owing in either the Labour Court, the High Court, or subject to jurisdiction, the Magistrate’s Court or Small Claims Court.

Section 76A provides for a fine for not complying with the national minimum wage. The fine that may be imposed on an employer who paid employee less the national minimum wage is an amount that is greater of:
- twice the value of the underpayment, or
- twice the value of the employee’s monthly wage.

For 2nd or further non-compliance, a fine may be imposed on the employer is an amount that is greater than:
- thrice the value of the underpayment, or
- thrice the employee’s monthly wage.