Labour legislation is not negotiable and non-compliance holds huge business risk for employers. The employer can greatly contribute towards the business’s sustainability and profitability by addressing labour risk proactively. This also ensures a working environment with reduced conflict, friction and misunderstanding. In turn, this will also create a structured environment receptive for growth. Labour legislation is applicable to all employers and employees. It aims to regulate labour relations ensuring fairness in the workplace.
An employment contract is crucial in managing labour relations as it is the basis of the relationship between the employer and employee. It is the most important document in the workplace and defines the terms and conditions as agreed upon between the parties and regulates their relationship. Take note that no part of the employment contract may be amended unilaterally and without consultation with the employee. When drafting an employment contract, the employer must take care to ensure that the contract complies with all applicable labour legislation depending on specific industry.
The basic requirements that must be complied with in the employment contract:
The Basic Conditions of Employment Act (“BCEA”) stipulates that at the start of employment, employers must provide an employee with “Written Particulars of Employment” containing the following information:
- Employer and employee details – the employer’s full name and address as well as the employee’s name and occupation or brief description of the work.
- Employment details – place/s of work, stating date of employment, working hours and days of work.
- Payment details – salary/wage or rate and method of calculating wages, rate for overtime, any other cash payments, any payments in kind and their value, frequency of payment and any deductions.
- Leave details – any leave to which the employee is entitled.
- Notice period required for termination of the employment contract.
- Contract period of the employment contract – is the position of a permanent/indefinite nature; or is the position of a temporary nature, for spesific time period or for a specific project? Employers must clearly understand that to disguise what is actually permanent employment in the form of a fixed term contract is illegal.
Proactive clauses to include in the employment contract
To comply with labour law is not negotiable but doesn’t have to be a headache. Employers can use labour law to their advantage to protect their business by including proactive clauses in the employment contract. By doing this the employer can eliminate possible future disputes and put the himself/herself in the best position with regards to the employment relationship going forward.
Proactive clauses includes:
- Reference to policies, procedures and disciplinary code that describe rules and procedures the employer and employees must adhere to.
- Time periods – probation period, retirement age, short time, lunch breaks, etc.
- Consent – medical testing, alcohol and drug testing
- Consent – deductions for damages, training, etc.
Add annexures to the employment contract
In addition to the employment contract, the employer can add annexures to further protect the business going forward. Typical annexures that form part of the employment contract include:
- Declarations of duties – what is expected from the employee with regards to duties and the employee’s fixed standard
- Restraint of trade and confidentiality information, unique methods and procedures, patents, etc.
We strongly advise employers to make use of proactive clauses in the employment contract. It is also extremely important to follow correct procedures with regards to all labour matters.
LWO Regsadviseur - LWO Legal Advisor
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