LABOUR LAW – ARR224

Lecture 5

The Basic Conditions of Employment Act, 75 of 1997

PRESCRIBED MATERIAL

Study:• PGL (Chapter 3 par 3.2-3.8, 3.10-3.14, 3.16, 3.18 & 3.20)

Read:• PGL (Chapter 3 par 3.1, 3.9, 3.15, 3.17 & 3.19)

• LRL (Pp 509-554)

• CLL (Pp 35-48)

LEARNING OUTCOMES

• Discuss the objectives of the Act. • Explain which employees are

covered by the BCEA. • Define concepts like employee,

senior managerial employee, remuneration, farm worker and domestic worker.

• Discuss provisions of the Act regulating

oworking time oworking hours

BCEA (INTRODUCTION)

• Most employers & employees in private sector bound by LRA.

• Some industries not bound and those employees must be provided with basic working conditions in other way than the LRA.

• Basic aim Act is to provide for minimum working conditions for unorganized employees.

• BCEA important for day to day administration of personnel (employee) matters.

• Minimum standards only find application if there is no other protective measures, e.g. collective agreements.

• Common law views employment contract as ordinary commercial contract (locatio conductio operarum).

• Can’t do it anymore: Contracting parties enjoy contractual freedom in commercial contracts and may agree on any condition of employment e.g. working hours of 20 hours per day for 7 days per week.

• BCEA therefore intervenes. Act provides basic working conditions not to be ignored in any employment contract (even if both parties are willing).

BCEA (BACKGROUND & OBJECTIVES)• NEDLAC-negotiations (no agreement).

BCEA tabled in parliament on 13 October 1997. Assented to on 26 November 1997 and came into operation on 1 December 1998.

• Replaces BCEA of 1983 and Wage Act of 1957.

• Aim: Advance economic development and social justice by ensuring working conditions of unorganised and vulnerable workers meet minimum socially accepted standards. It also aims to remove rigidities and inefficiencies by the promotion of flexibility.

• In terms of sect 2 the objectives of the Act are the following:

oSect 23(1) of the Constitution and basic conditions of employment;

oObligations incurred member ILO; oVariation of basic conditions of employment

BCEA (APPLICATION I)

• Applies to both the public and private sectors and it covers all employees, except members of the:

1. National Defence Force 2. National Intelligence Agency 3. South African National Academy

of Intelligence 4. South African Secret Service 5. Directors and staff of Comsec 6. Unpaid volunteers working for an

organization serving a charitable purpose.

BCEA (APPLICATION II)The partial exclusions can be summarized as follows:

• Applicable on vocational trainees, except where employment is regulated by any other law.

• Only sect 41 applicable on persons employed on vessels at sea.

• Senior managerial employees, sales-rep-employees employees who work < 24 h/pm excluded from the provisions of overtime, compressed working week, averaging of working hours, maximum hours prescribed by Minister, meal intervals, rest periods, Sunday work, night work, public holidays.

• Employees working < 24 h/pm excluded from the provisions of sick leave, annual leave, maternity leave and family responsibility leave, particulars of employment and remuneration and termination of employment, payments on termination and certificate of service.

• Employees of employer employing < 5 employees, excluded from written particulars of employment, duty to inform employees of rights, keeping of records and information on remuneration.

• Employees engaged in unexpected work which must be done without delay and which cannot be performed during ordinary working hours are excluded from ordinary hours of work, overtime, meal intervals, daily and weekly rest periods, night work and work on public holidays.

• Employees whose employment is subject to a bargaining council’s collective agreement or other collective or individual agreements can be excluded from all but the core rights.

• Employees who earn more than the amount amended by the Minister from time to time (currently R183 008))can be excluded from provisions relating to working time, averaging of hours, hours prescribed by the Minister, meal intervals, daily and weekly rest periods, Sunday work, night work and work on public holidays.

BCEA (DEFINITIONS) • Basic condition of employment Provision of Act/sectoral determination

stipulating minimum condition of employment.• Domestic worker Employee performing domestic work in home of employer

and includes gardener, person employed by household as driver of a motor vehicle and person taking care of children, aged, sick, frail or disabled, but does not include farm worker.

• Employee Any person, excluding independent contractor, working for other/State and receiving remuneration. Also other assisting in carrying on/conducting the business. Same as LRA. Dominant impression test. Sect 83A: If any of factors are present, presumption that person is employee:

1. Manner of working subject to control/direction. 2. Hours of work subject to control/direction. 3. Where person working for organisation, person part of organisation. 4. Worked average 40 h/pm over last 3 months. 5. Economically dependant. 6. Provided with tools of trade. 7. Works for only one person.• Farm worker Farming activities. Includes employee performing domestic

work in a home on farm.• Remuneration Payment in money and/or in kind in return for that person

working for other person.• Senior managerial employee Authority to hire, discipline and dismiss

employees and to represent the employer internally and externally.• Temporary employment service Procures (for reward) to client other persons who

render services for client and who are remunerated by the temporary employment service.

• (In terms of sect 79(1) an employee includes a previous employee and an applicant for employment. Sect 82(1) provides that a person whose services are provided by a temporary employment service, is an employee of the temporary employment service.

LET ME OUT AFTER 5????

BCEA (ORDINARY HOURS OF WORK)• Regulated by Chapter 2.• Hours regulated with due regard to health and safety of employees,

Code of Good Practice on Regulation of Working Time and family responsibilities of employees.

• “Day” defined as period of 24 hours measured from time employee normally commences work (sect 8)

• Sect 9 regulates ordinary hours of work.• In respect of weekly hours:oMaximum of 45 hours per week.• In respect of daily hourso If working 5 days/< per week, maximum of 9 hours per day. o If working > 5 days per week, maximum of 8 hours per day. o If employee’s duties include serving public, maximum may (by

agreement) extended with 15 min/day up to maximum of 60 min per week.

• Goal of BCEA = 40-hour working week. Sch 1 procedures for progressive reduction of maximum ordinary working hours to maximum of 40 hours p/w and 8 h/d. Reduction secured by:

oCollective bargaining oSectoral determinations o Investigations by ECC o Investigations by DoL oReports (i.r.o. investigations) to Minister

BCEA AND WORKING HOURS