By RYAN MCDONALD
Previously we looked at determining whether an individual who is engaged in work is classified as an ‘employee’ or a ‘contractor’ (see article ‘Someone doing work: contractor or employee?). It was noted that the distinction is crucial given that only employees enjoy the benefits of labour legislation. We now turn attention to outlining some of the basic employment rights afforded to employees by labour legislation.
Before looking at the Basic Conditions of Employment Act 75 of 1997 (BCEA), it is worth noting the existence of a minimum wage in the South African context. The National Minimum Wage Act 9 of 2018 (NMWA) provides that every worker (apart from those mentioned below) will be entitled to a minimum wage of R20 for each ordinary hour worked. The following minimum wages were applicable from 1 January 2019:
- R18 per hour for farm workers;
- R15 per hour for domestic workers;
- R11 per hour for workers employed on an expanded public works programme;
- R20 per hour for all other workers.
The BCEA is the legal source of the majority of basic employment rights. Employers may deviate from the terms of the BCEA only if they are willing to provide more favourable terms to the employee. An example would be an employment contract that provides for more leave days than the minimum stipulated in the BCEA. With some limited exceptions, namely employees of the State Security Agency and unpaid volunteers working for charitable organisations, the BCEA applies to all employees.
The BCEA enshrines the right of the employee to be paid according to the contract of employment. Payment must take place within seven days after the end of the period for which it was due. Deductions are only permitted to the extent agreed upon or legally permitted (for example tax and UIF).
The BCEA has detailed provisions in relation to a variety of different employment issues. Here we will briefly outline a few noteworthy ones. We recommend consulting the BCEA directly for more details (available electronically at – https://www.gov.za/sites/default/files/gcis_document/201409/a75-97.pdf).
The BCEA regulates working hours and overtime. No employer may require an employee to work more than 45 hours a week. All work that exceeds this amount will be regarded as overtime, which can only be worked with the employee’s annual consent. Where overtime is worked, this may not exceed 10 hours in any week. An employee must be paid the equivalent of his / her hourly rate of pay for 30 minutes for each hour of overtime worked at normal rates. Time off instead of pay must be taken within one month of the time worked.
Employees are entitled to a full hour meal break after five work hours. This can be reduced to 30 minutes where the employee works less than six hours in a day. Every employee is entitled to a weekly rest period of at least 36 uninterrupted hours, which must include a Sunday, unless there is an agreement to the contrary.
Workers are entitled to be paid for public holidays which fall on a day that they normally would have worked – even though they were not working on the public holiday. A worker can agree to work on a public holiday, but this is voluntary. If a worker does agree to work, they must get a normal working day off in exchange, or they must be paid double the normal hourly rate for the number of employees who work less than 24 hours in a month. A summary of the various leave provisions is provided in the table below:
|TYPE OF LEAVE||SUMMARY|
|Annual Leave||Yearly allocated leave – 21 consecutive days leave per year|
|Sick Leave||Allocated leave for when the employee is sick – 30 days over a 3-year cycle (36 days if the employee works a 6-day week)|
|Maternity Leave||Leave utilised when an employee has given (or is about to give) birth – at least 4 months unpaid|
|Paternity Leave||10 days parental leave upon the birth of the employee’s child|
|Family Responsibility Leave||Leave utilised by the employee when matters arise pertaining to their family (eg. Illness or death) – 3 days per year|
|Unpaid Leave||Leave that the employee utilises but is not paid for|
Labour inspectors are primarily responsible for enforcing the BCEA as well as the NMWA. They have considerable powers in terms of the statute, including powers of entry, powers to question and powers to inspect. An inspector may secure an undertaking from the employer (section 68). An inspector who has reasonable grounds to believe that the employer is not complying with the BCEA may issue a compliance order in terms of section 69.
- Ryan McDonald is an attorney at the Rhodes University Law Clinic
Rhodes University Law Clinic helping you
The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to indigent people in most areas of law. In addition to its New Street offices, Law Clinic staff are available to clients at the Assumption Development Centre (Konongendi), Nceme Street, Joza, on the first and third Thursday of every month from 9am-12pm.
Law Clinic staff also conduct a talk show on Radio Grahamstown on the second and fourth Friday of every month, and provide workshops on a wide range of topics in order to raise awareness of people’s rights. For more detail, please contact:
Rhodes University Law Clinic
41 New Street, Grahamstown
Telephone 046 603 7656