The Basic Conditions of Employment Act
13 May 2021
What you need to know
When it comes to leave, working hours, contract deductions, payslips and termination, employees and employers both have rights, according the Basic Conditions of Employment Act.
An employee’s leave accrues at the rate of one hour for every 17 hours worked, or one day for every 17 days worked, or 1.25 days per month. In total, employees are entitled to 15 working days per annum on full pay in each annual leave cycle, calculated from the date of employment.
While this does not apply to the National Defence Force, National Intelligence Agency, South African Secret Service or unpaid volunteers working for charity, temporary employees and independent contractors are entitled to annual leave.
When can leave be taken
The employee and the employer must agree on when annual leave can be taken. If there is no agreement, then annual leave is taken at a time that suits the employer. Leave must be granted not later than six months after the end of the annual leave cycle (which is 12 months from the date of employment).
The employer is prohibited from paying compensation in exchange for annual leave except on termination of employment. The employer may not force an employee to take annual leave during any period of notice and the employee cannot take annual leave during any period of notice.
Employees can take paid leave under certain conditions. For example, pregnant employees have the right to take maternity leave and employees are also entitled to take sick leave.
It should be noted that an employee continues to accrue annual leave while on a period of maternity leave or sick leave.
Employees are also entitled to be paid over certain public and religious holidays. These include memorial holidays and religious holidays (Christian origin). Should a public holiday fall over a time that an employee is on annual leave and the public holiday falls on the day on which the employee would ordinarily work, then the employee is entitled to an extra day of annual leave.
The employer and the employee’s responsibility
Every employer should have an annual leave policy in place. If an employer has an annual shutdown period, such as over December, the employer should warn employees of this. It is the responsibility of the employee to ensure he or she has sufficient leave days to cover the full annual shutdown period. Employees should also be warned that if they do not have sufficient annual leave days available to cover the annual shutdown period, then the number of days short will be treated as unpaid leave.
The maximum normal working time is 45 hours weekly. The weekly rest day should be Sunday for all workers unless otherwise agreed. Workers are entitled to 36 consecutive hours of rest per week.
A lunch break is unpaid time and is the employee’s own time. Therefore an employee who works a five-day week and who receives a lunch break of one hour daily will actually be at the workplace for 50 hours weekly (45 hours of working time plus five hours of daily lunch breaks). The lunch break is to be provided after five hours of continuous working time.
However, tea breaks do not qualify as a break in working time. The required lunch break is one hour, but by agreement between the employee and employer, this may be reduced to 30 minutes.
Employees who earn above the determined threshold amount (R20 5433.30) must negotiate the amount of working hours per day or per week with the employer. The employee is under no obligation to work more than 45 hours per week.
All overtime is voluntary and may only be worked by agreement between the employer and employee. The maximum permissible overtime is three hours per day or 10 hours per week. Remuneration must be at 1.5 times the normal wage rate except for work on Sundays or public holidays, which must be remunerated at twice the normal wage rate. Time off, calculated on the same formula, may be granted instead of payment, but only by agreement with the employee.
Employees who earn in excess of the threshold amount are not subject to the overtime provisions. This means that such employees cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off instead of payment. However, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation. All forced labour is prohibited.
There is no requirement in labour law to pay bonuses. Where the payment of the bonus has become a condition of employment through established practice, then the bonus must be paid. A failure to pay the bonus may amount to an unfair labour practice (section 186 and section 191 of the Labour Relations Act). It may also be seen as a unilateral change to the terms and conditions of employment. It is essential that in every employment contract, the terms and conditions applicable to the payment of bonuses must be specifically and clearly stated. Management should consult with the staff in advance to warn them of the possibility that bonuses may not be paid or may be reduced this year.
Got a question about leave? Don’t sign anything before we’ve read through your contract.