Summary of the Basic Conditions of Employment Act
The Basic Conditions of Employment Act (BCEA) provides a basic guideline on BCEA regulations relating to:
- Working times: including shift work, weekend work, public holidays, overtime
- Payment: including payment in kind, deductions
- Leave: annual leave, sick leave, maternity leave, family responsibility leave, unpaid leave and absence without leave
- Deductions: including those required by law and those you are allowed to make
- Notice periods
- Administration: documents needed by employees and record-keeping
- Prohibition of victimisation and exploitation
Working times and pay
- The maximum hours of work are 45 hours per week for ordinary pay. See section 9 of the BCEA for variations for farmworkers.
- The maximum length of a working day is 9 hours if the worker works a 5-day week, but 8 hours a day if the worker works a 6-day week. Where the working week is compressed (squashed) into fewer days, shifts of longer hours may be introduced with the employee’s consent. For example, an employee can agree to work shifts of 12 hours over 4 working days.
- Overtime is voluntary. No worker may work more than 10 hours of overtime per week. Overtime must be paid per hour of overtime worked, at a rate of one and a half times the worker’s ordinary hourly wage. In addition, no employee may work more than 12 hours in any day (including overtime on that day).
Even though overtime is voluntary, if the employee agreed in the original contract to work over time when necessary, then this overtime must be worked. If the employee refuses to work overtime then he/she is in breach of the contract and the employer can take disciplinary action against the employee.
An employer who is employing less than 10 employees only needs to pay overtime at time and a third of the normal wage. The employer can also agree with the employee to work up to 15 hours overtime during a week as against the normal ten hours.
Note: While individual overtime is voluntary (subject to an agreement) a joint refusal by a number of employees to work normal overtime, will probably constitute a strike or industrial action.
Payment for Sunday work must be the greater of double the normal hourly rate for the amount of Sunday hours worked or one full day’s pay. If it is normally part of a worker’s job to work on a Sunday, then s/he must be paid at a rate of time and a half his/her normal hourly rate. (See Farmworkers, for variations for farmworkers)
Workers are entitled to be paid for public holidays which fall on a day that they normally would have worked – even though they will be off and 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 amount of hours worked on the day.
Night work after 6 pm and before 6 am is voluntary. Workers must be paid an extra allowance or have their working hours reduced. Transport must be available for the workers to get from their homes to work and back. The law is unclear as to who must ‘provide or pay’ for such transport.
Flexibility in working hours
The BCEA allows for some flexibility in the arrangement of working hours, by agreement between the employer and workers (collective agreement) or one worker (individual agreement):
- Compressed working week by collective or individual agreement:
Employees can work up to 12 hours of normal work on any day without receiving overtime pay. But the employees may still not work more than 45 normal hours per week and may not work on more than 5 days in a week. Any time worked beyond 45 hours in the week should be paid at overtime rates.
- Averaging of working hours by collective agreement only:
Averaging means workers can agree to work longer hours than the BCEA usually allows, if they get the same number of extra hours off at a later time. This would for example mean that workers could agree to work longer hours in one week for normal pay, if they work reduced hours for normal pay the following week.
But the workers may still not work more than an average of 45 ordinary hours per week during this period. Also the agreement cannot go on for longer than 4 months. Where reference is made to a collective agreement, then this an agreement should be made through the employees’ trade union.
Payment in kind
Wages can be paid partly in kind. This means that if the worker and the employer agree that wages will be paid partly in kind, then the employer can pay the worker his or her wage through giving him or her housing or use of land, or rations (food), as well as cash. This has been common with farm-workers and domestic workers.
The law says how much the payment in kind is worth. It’s often difficult to work out the value of payment in kind, so the law says that the value must be worked out as follows:
- Either R100 per month, or
- 1/3 of the cash wage, or
- Whichever is higher
The employer and worker can also agree on what the real value of the payment in kind is. They can only do this if the value they agree on is more than what the law says. This agreement must be in writing. When you want to calculate any of the following, you must use the full wage (the cash wage plus the payment in kind):
- Overtime pay
- Payment for work on Sundays and public holidays
- Payment for annual leave and sick leave
- Contributions to and benefits from UIF
Deductions from wages (other than those required by law) are not permitted without the written consent of the worker.
The deductions required by law which an employer makes from the wages of a worker are as follows:
- Unemployment Insurance Fund (UIF)
- SITE (tax)
- Any deduction ordered by a court
The lawful deductions which an employer can make from the wages of a worker, if the worker instructs the employer in writing to make the deduction, are as follows:
- Trade union subscriptions
- Medical aid contributions
- Pension or provident fund
- Money to pay back a housing loan or other loan from the employer
- Money for food and accommodation
- For loss or damages suffered at work provided the employee has been given a hearing to explain the facts.
The amount that can be deducted can be equal to (but not more than) 25% of the normal wage to offset losses.
Often employers also make unlawful deductions from workers’ wages, such as:
- When there are shortages in a till, the worker has to pay back the shortages
- The worker breaks something at work
- The worker owes the employer money, but did not agree that the amount owing should be deducted
- The worker is off sick and the employer deducts money for the days not worked
- The worker is absent from work without leave (permission to take annual, family responsibility or maternity leave, or being sick)
If an employer wants to deduct a fine from a worker’s wage, to compensate the employer for loss or damage, the employer can only deduct the fine if:
- The loss/damage happened during the ‘course and scope of employment’
- The worker was at fault
- A fair hearing was held to give the worker a chance to state her or his case
- The employer does not deduct more than the actual value of the loss or damage
- The total amount deducted is no more than 25% of the employee’s wages
- The worker gives consent in writing
REMEMBER: Fines may not be deducted from wages. The employer can only deduct from a worker’s wage if the worker has agreed to this or if a court has ordered this, and if the employer follows the rules above.
Daily and weekly rest periods
- No employee’ hours of work may be spread over more than 12 hours per day. ‘Spread over’ means from the start of work to the end of work, including any breaks for meals or rest and any overtime
- No worker’s hours of work may be spread over more than 12 hours per day (‘Spread over’ means from the start of work to the end of work, including any breaks for meals or rest and any overtime.)
- A rest period of 1 hour is required after every 5 hours worked. This can be reduced to 30 minutes, if the worker and employer agree in writing
- Every worker is entitled to a daily rest period of 12 hours from the end of work on one day to the start of work on the following day. This rest period can be reduced to 10 hours if a worker lives on the premises and gets a meal break of at least 3 hours (this may be relevant to domestic workers, caretakers, farmworkers, and so on)
- Every worker is entitled to a weekly rest period of 36 continuous hours. For many workers, this is over the weekend
- An agreement in writing between the employer and employee may reduce the meal interval to not less than 30 minutes or do away with a meal interval if the employee works less than 6 hours on a day
The agreement can also provide for a rest period of at least 60 consecutive hours (hours in a row) every two weeks.
Leave can be annual (yearly) leave, sick leave, maternity leave, family responsibility or unpaid leave.
- Every worker is entitled to 21 consecutive days paid leave per year. This is the equivalent of three weeks time off
- The worker is entitled to take 21 days all in one go, but can choose to use the annual leave to take occasional days off work. The employer then deducts these days of occasional leave that a worker took during the year from the annual leave
- Annual leave must be taken within 6 months of the end of an annual leave cycle (a year’s work)
- If the worker is off work on any other kind of leave, these days do not count as part of annual leave. In other words, annual leave cannot be deducted at the same time as sick leave, family responsibility leave or maternity leave
- If the leave period covers a public holiday, then the public holiday does not count as part of the worker’s leave
- Annual leave cannot be taken at the same time as the notice period
- Leave pay is not a bonus on top of normal pay. It simply means that a worker gets a holiday every year, and gets normal pay for those days. If a worker doesn’t take leave, or all the leave, the employer will not pay out leave pay instead of leave
- If a worker leaves a job without having taken all the leave that is due to them, the worker must be paid for the days of leave that they have not taken. This is called pro rata leave pay
- A permanent worker is entitled to paid sick leave of 30 days over any 3-year cycle (36 days if the worker works a 6-day week). During the first 6 months that a worker works for an employer, she or he gets 1 day paid sick leave for every 26 days worked. Once all these paid sick leave days are used up, the employer does not have to pay the worker when he or she is off sick. An employee who works more than 24 hours during any month earns one day’s leave for every 26 days worked
- Seasonal or temporary workers are entitled to 1 day’s sick leave for every 26 days worked over the first 6-month cycle
- Workers who are sick for more than 2 days may be required to produce a doctor’s certificate. If a worker lives on the premises and it is difficult for them to get to a doctor (for example, in rural areas), the worker does not have to produce a certificate unless the employer gives the worker reasonable assistance to get the certificate
- Sick leave pay is not a bonus on top of normal pay. It simply means that if a worker is genuinely sick and has to take time off work, the employer must pay the worker up to a certain number of days. For example, if a waitress in a restaurant only took 3 days sick leave this year, the employer does not owe her the money for the remaining sick leave days at the end of the year.
Family responsibility leave
- Every worker with more than 4 months service with an employer, and who works on more than 4 days a week, is entitled to 3 days paid family responsibility leave per year. This can be taken if a direct family member dies, or when a child is born or ill. A total of three days is allocated for this kind of leave and not three days for each event.
Women workers are entitled to 4 months unpaid maternity leave. During this time, the worker may draw maternity benefits from the Unemployment Insurance Fund.
A Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child has been published.
An employer may agree to let a worker take extra days of annual leave, or the worker may be sick for longer than the paid sick leave. Then the employer does not have to pay the worker for these days.
Absent without leave
If a worker takes leave without the employer’s permission and is not sick, the employer does not have to pay the worker for the time taken off. If the worker takes off many days in a row without permission (normally more than 4 consecutive days), or often takes time off without permission, the employer may presume that the worker has deserted (left without giving notice) his or her employment.
The employer may employ someone else to do the job. In this case the employer does not give the worker notice. But if the worker returns, fair dismissal rules must be followed.
- During the first six months of employment, workers will be entitled to at least 1 week’s notice of the termination of their services
- After the first six months, but during the first year of employment, workers will be entitled to 2 week’s notice
- If they have worked for more than one year, workers are entitled to 4 week’s notice
- If an employment contract has a longer period of notice than the BCEA, the longer notice must be given
- Notice works both ways! If a worker resigns without giving the employer the correct amount of notice, for example one week, the employer can claim one week’s pay from the worker
- Notice must be in writing
- Neither the employer nor the worker can give notice while the worker is on leave
All workers are entitled to a written certificate of service when the worker stops working for that employer. The certificate of service sets out the full name of the employer and the worker, the job/s that the worker was doing, the date the worker began working and the date the worker ended work; the wage at the time that the job ended, including payment in kind.
Except for workers who work less than 24 hours a month:
Before the job starts, the employer must give the worker written particulars about the job, including:
- A description of the job
- The hours that the worker will be expected to work
- Ordinary and overtime rates of payment, including payment in kind and its value
- Any deductions to be made
- How much leave the worker will get
- The notice period
This document is like a contract of employment, but the worker doesn’t have to sign it. If a worker can’t read, the particulars must be explained in a language the worker understands. An employer who employs fewer than 5 employees does not have to provide the above details
The BCEA says an employer must hand the worker his or her wages with certain details on a payslip, including:
- The period for which the worker is being paid
- The number of overtime hours worked
- The number of hours worked on a Sunday or public holiday
- The wages due to the worker (both normal and overtime)
- The amount and reason for any deductions made for tax, pension, UIF, etc. and so on
- The actual amount paid
The BCEA says the employers must keep the following records:
- The time worked by each worker.
- The wages paid to each worker.
Prohibition of victimisation and exploitation
The employer is not allowed to victimise a worker who refuses to do something that is against the BCEA. For example, if a worker says she cannot work overtime because her baby is sick at home, the employer cannot dismiss her; the BCEA states that an employer cannot make a worker work overtime without the worker’s consent.
For details on this and other employment-related Acts, visit the Department of Labour’s website on http://www.labour.gov.za