Basic Conditions of Employment Act

Background

The purpose of the Basic Conditions of Employment Act is to give effect to the right to fair labour practices, as referred to in Section 23 (1) of the Constitution, by establishing and providing for the regulation of basic conditions of employment. Thereby complying with the obligations of the Republic as a member of the International Labour Organisation and to provide for all matters connected thereto.

Approved amendments

President Jacob Zuma approved the amendments to the Basic Conditions of Employment Act on 09 December 2013 which came into effect on 01 September 2014. We hereby highlight the most important amendments.

Introductory paragraph to the Act  
In the published amendment of the Basic Conditions of Employment Act, the heading reads as follows:
“To amend the Basic Conditions of Employment Act, 1997, so as to substitute certain provisions; to prohibit employers from requiring employees to make certain 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 (of Labour) 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”.

Extension of the definition of “serve”
Documents may now also be served by electronic mail or any prescribed method of service. Previously service of documents was only allowed by registered post, telegram, fax or by hand delivery.

Prohibited conduct by employers
Henceforth, employers may not:

    1. require or accept payment from an employee or potential employee in connection with his employment, or the supply of service; or
    2. require an employee or potential employee to purchase any goods, products or services from his employer or from any business or person nominated by the employer. The emphasis is on the prohibition to require last mentioned from an employee, but the right to freely agree with another person to the supply of any goods, products or services and the deduction from the employee’s remuneration, may never be totally limited. It may still be agreed in an employment contract or collective agreement that an employee is required to take part in a scheme whereby specific products and services can be purchased under certain conditions.

Prohibition of work done by children
The prohibition of work done by children under the age of 15, or under the normal school-leaving age, or for dangerous work has been reaffirmed – the clause was only linguistically adjusted.

Right to establish an “umbrella” Sectoral Determination
Through the insertion of subsection 8, the Minister of Labour is given the ability to publish a Sectoral Determination so wide as to include any employer and employee whose work is not regulated by any other Sectoral Determination (including any Bargaining Council Main Collective Agreement). Thereby the possibility is created to establish minimum wages and other minimum conditions of employment. This immense power can have a negative impact on freedom of trade and other constitutional rights of employers, which can influence job creation negatively.

Extension of method to determine minimum wage
Minimum wages may henceforth be adjusted by a Sectoral Determination as well as minimum percentage increases. Prior to the amendments the Basic Conditions of Employment Act only made provision for specific tariffs/wages.

Right to determine a threshold for organisational rights
In terms of the Amendment Act, the Minister may determine a percentage for any trade union or two or more trade unions acting together, which will provide for the right to organisational rights set out in Section 12 (trade union access to the workplace) and Section 13 (deductions of trade union membership subscriptions). Once the percentage has been established it will eliminate years of uncertainty and unnecessary CCMA / Labour Court disputes regarding these rights, but it will also limit an employer’s right in this regard.

Ommission of the obligation to endeavor to obtain an undertaking
Henceforth it is no longer a requirement for Inspectors of the Department of Labour to endeavor to obtain an undertaking (from the employer), whereby the employer undertakes to comply with specific legal requirements to which they failed to comply with, before a compliance order can be issued. Furthermore, the right to make representations against a compliance order fell away.

Penalties and fines
Imprisonment for violation of child labour has been doubled (from three to six years). Fines for violating the Basic Conditions of Employment Act has been tripled.

Summary

It is stressed that the Basic Conditions of Employment Act is compelling, non-negotiable legislation for all employers and employees. All aspects of this Act forms the proverbial “safety net” for all industries / sectors for which no more specific legislation (as in Sectoral Determination or Bargaining Council Agreements) exists.
Kindly contact us at 0861 101 828 with any queries, or should you require any labour law advice / assistance. We are available 24/7.

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