Basic Conditions of Employment Act - South Africa

The stated purpose of this Act is to give effect to s. 23(1) of the South African Constitution (the right to fair labour practices) and South Africa’s obligations as a member of the ILO. The Act applies to all employers in the public and private sectors (but note the delayed application to the public sector in Schedule 3) and employees subject to limited exceptions set out in s. 3 (such as security and defence services). Independent contractors are not covered by the Act. The Act uses gender neutral language. Provisions of particular relevance to women are:

Labour market concentration, for example in the retail sector, and atypical forms of work, such as part time work are issues for women. Note, therefore that Chapter Two (working time) does not apply to sales staff who travel to customers premises and regulate their own hours (paragraph 6(1)(b).). Both Chapter Two and Three do not apply to employees who work less than 24 hours a month. Note also s. 9(2) which allows an agreed extension of an employee's ordinary hours of work by:

"...up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work."

Atypical working patterns also benefit, in the calculation of periods of service for the purposes of the Act, from s. 84 which allows separate periods of employment (with the same employer) to be added together provided that the breaks in employment are less than 12 months.

For temporary employees, s. 82 of the Act differs from s. 57 of the Employment Equity Act 1998, in that any temporary employment service remains their employer. However, both the client and the temporary employment service are liable for breaches under the Act.

Section 7 provides that, in the regulation of working time, employers must pay "due regard" to, amongst other things, the health and safety of employees and their family responsibilities (see also the "Code of Good Practice on the Arrangement of Working Time").

Also relevant to family responsibilities is the provision in s. 10 that employers can not require employees to work overtime except with agreement (including a collective agreement) and that it can not be more than three hours a day or ten hours a week. Note also that nightwork can only be required with agreement (s. 16). Section 15 also sets daily and weekly rest periods between ending and recommencing employment which would assist workers with family responsibilities.

Leave provisions are set out in Chapter Three of the Act. Of significance to women are the following provisions:

a. Maternity

Section 25 stipulates at least four consecutive months maternity leave which may be taken up to four weeks before the expected birth or from another date for certified medical reasons. Work is prohibited for six weeks after the birth in the absence of medical certification of fitness to work. Under s. 25(4):

"An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth."

Maternity benefits are dealt with under the Unemployment Insurance Act.

b. Alternative Work for Pregnant Employees and Nursing Mothers.

Under s. 26 an employer must not require or permit a pregnant or nursing employee to perform work that is hazardous to her health or the health of her child. In addition, during pregnancy and six months after the birth, employers must, if it is practicable to do so, offer suitable alternative employment if the employee works at night or her work poses a danger to her or her child’s health or safety. The terms and conditions of the alternative work offered must be no less favourable than the employee’s ordinary terms and conditions (see also "Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child").

c. Family Responsibility Leave

Section 27 requires family responsibility leave for male and female employees employed for longer than four months and who work over four days a week. This is three days annual non-accruable leave, at normal pay rates, which can be taken on the birth of the employee's child and when a child is sick (note that a child is defined in s. 1 as up to 18 years of age), and following bereavement of close family.

Section 30 requires a prescribed notice to be displayed in the workplace informing employees of their rights under the Act.

Labour market concentration in farm and domestic work are issues for women. Farm and domestic workers are entitled to four weeks termination notice, the same as employees who have been employed for more than a year (see s. 37(1)(c).). Note, in Schedule 3, the continued application of a limited number of the provisions in the Basic Conditions of Employment Act 1983 to these sectors pending the making of relevant sectoral determinations. This is particularly important in relation to "payments in kind".

Lack of education can be an important issue for women workers. Note that illiterate employees can give notice orally and any employee who receives a notice is entitled to have it explained orally.