Basic Conditions of Employment Act 1997, Act No. 75, dated 26 November 1997 Government Gazette, vol. 390, No. 18491, 1997, as amended by the Basic Conditions of Employment Amendment Act No. 11, 2002 and sectorial determinations made in accordance thereof. Published by the Department of Labour of the Government of the Republic of South Africa at http://www.labour.gov.za/legislation/acts/basic-conditions-of-employment/basic-conditions-of-employment-act-and-amendments.
Remarks: The working time provisions of this Act does not apply to senior managerial employees; employees engaged as sales staff who travel to the premises of customers and who determine their own hours of work; and employees who work less than 24 hours a month for the employer. The annual leave provisions do not apply to employees who work less than 24 hours a month for an employer or to leave granted to an employee in excess of the employee’s entitlement under the Act. Further, the Act does not apply to members of the national defence force, the National Intelligence Agency, the South African Secret Service, unpaid volunteers working for a charitable organization and persons employed on vessels at sea in respect of which the Merchant Shipping Act 1951 applies. Basic Conditions of Employment Act §§ 3, 6, 19
Name of Act
Public Holidays Act 1994 of 7 December 1994, Act No. 36 of 1994
Code of Good Practice on the Arrangement of Working Time, issued by the Minister in accordance with §87 of the Basic Conditions of Employment Act 1997 (as amended). Published by the Department of Labour at http://www.labour.gov.za/legislation/codes-of-good-ractise/Basic%20Conditions%20of%20Employment/code-of-good-practice-on-arrangement-of-working-time.
Remarks: The Code applies to all employees covered by the Act, but is of particular significance for workers who perform shift work or regular night work, and to their employers. A departure from the Code may be justified in proper circumstances.
Other source used
Sectoral Determination 7 - Domestic Workers. Published by the Department of Labour at http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-7-domestic-workers/.
Ordinary hours of work means the hours of work permitted by section 9 of the Basic Conditions of Employment Act 1997 (as amended), or by the terms of an agreement as contemplated by sections 11 or 12 of that Act.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 1
Employee/worker
’Employee’ is a person, excluding an independent contractor, working for another person or for the state and who is entitled to receive remuneration or a person who assists an employer in carrying out the employer’s business.
Basic Conditions of Employment Act 1997 as amended 2002 §1
Employer
The term ’employer’ is not defined by the Basic Conditions of Employment Act 1997 (as amended).
Overtime/overtime work
The time that an employee works during a day or a week in excess of ordinary hours of work.
Basic Conditions of Employment Act 1997 as amended 2002 §1
Night work(er)
For the purposes of section 17 of the Basic Conditions of Employment Act 1997 (as amended), night work means work performed after 6 pm and before 6 am the next day.
Basic Conditions of Employment Act 1997 as amended 2002 §17
Domestic worker
Domestic worker means an employee who performs domestic work in the home of his or her employer and includes a gardener, a person employed by a household as driver of a motor vehicle and a person who takes care of children, the aged, the sick. the frail or the disabled, but does not include a farm worker.
Basic Conditions of Employment Act 1997 as amended 2002 §1
NORMAL HOURS LIMITS
Daily hours limit
General limit
9 hours in any day if the employee works for five days or fewer in a week or 8 hours in any day if the employee works on more than five days in a week.
Basic Conditions of Employment Act 1997 as amended 2002 §9
Historical data (year indicates year of data collection)
2009: 9 hours in any day if the employee works for five days or fewer in a week or eight hours in any day if the employee works on more than five days in a week.
2007: 8 hours
Exceptions
The daily hour limits do not apply where work is required without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their normal hours.
The employer and employee may reach agreement to extend ordinary working hours by up to 15 minutes a day, but not more than 60 minutes a week, to enable an employee whose duties include serving members of the public to continue performing those duties.
Basic Conditions of Employment Act 1997 as amended 2002 §§6(2), 9
Special categories
» Domestic work
An employer may not require or permit a domestic worker to work more than- (i) nine hours on any day if the domestic worker works for five days or less in a week; or (ii) eight hours in any day if the domestic worker works on more than five days in any week.
Basic Conditions of Employment Act 1997 as amended 2002 §9(1)(a)
Historical data (year indicates year of data collection)
2009: 45 hours
2007: 45 hours
1995: 46 hours.
Reference period(s)
Where a collective agreement provides for the averaging of ordinary work hours, the reference period must be no longer than 4 months.
Basic Conditions of Employment Act 1997 as amended 2002 Art 12(1)
Compressed workweeks
An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals, without receiving overtime pay.
Basic Conditions of Employment Act 1997 as amended 2002 §11
Exceptions
The 45 hour limit does not apply to work required without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and that cannot be performed by employees during their ordinary hours.
The employer and employee may reach agreement to extend ordinary working hours by up to 15 minutes a day, but to no more than 60 minutes per week, to enable an employee whose duties include serving members of the public to continue performing those duties.
Finally, collective agreements can provide that the normal hours and overtime be averaged over a period of up to 4 months. Hours averaging is subject to 45 hours per week in average and an average of 5 hours of overtime per week.
Basic Conditions of Employment Act 1997 as amended 2002 §§6, 9, 12
Special categories
» Domestic work
An employer may not require or permit a domestic worker to work more than 45 hours in any week.
An employer cannot require or permit a worker to work overtime except in accordance with an agreement.
Basic Conditions of Employment Act 1997 as amended 2002 §10(1)(a)
Limits on overtime hours
General limits
An employer may not require or permit an employee to work more than 10 hours of overtime in a week.
Further, an employer may not require or permit an employee to work more than a total of 12 hours on any day.
Basic Conditions of Employment Act 1997 as amended 2002 §10(1) and (1A)
Historical data (year indicates year of data collection)
2009: 3 hours per day and 10 hours per week.
The overtime cannot extend the day beyond 12 hours.
2007: 3 hours per day and 10 hours per week.
The overtime cannot extend the day beyond 12 hours.
1995: Maximum 3 hours per day and 10 hours per week.
Restrictions/exceptions
A collective agreement can increase the weekly limit to 15 hours.
Urgent work: These limits do not apply to work that is required without delay owing to circumstances for which the employer could not reasonably have been expected to foresee; and for work that cannot be performed by employees during their normal hours.
Averaging of hours: Collective agreements can provide that an employee’s overtime hours be averaged over a period of up to 4 months, provided that the average number of overtime hours work do not exceed 5 hours per week.
Basic Conditions of Employment Act 1997 as amended 2002 §§6, 10(6), 12
Compensation for overtime work
Overtime rate(s)
An employer must pay an employee at least one and one-half times the employee’s wage for overtime worked.
Basic Conditions of Employment Act 1997 as amended 2002 §10(2)
Historical data (year indicates year of data collection)
2009: At least 50% increase to the wage of the employee.
2007: 50% increase
1995: One-third the hourly wage as premium for overtime on ordinary working days and weekly day of rest (up to 4 hours). 100% premium for work on weekly rest day after 4 hours of work and on public holidays.
Exceptions
An agreement in writing may require or permit an employee to work up to 12 hours in a day, inclusive of statutory meal breaks, without receiving overtime pay.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 11
Compensatory rest
An agreement may provide for an employer to: (a) pay an employee not less than the employee’s ordinary wage for overtime worked and grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worker; or (b) grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.
Compensatory time off shall be given within one month after the overtime work was carried out, unless agreement is reached to extend this period to a maximum of 12 months.
Basic Conditions of Employment Act 1997 as amended 2002 §10(3) and (4)
Notice of requirement to work overtime
General provisions
No relevant provisions identified.
Special categories
Domestic work
An employer may not require or permit a domestic worker- (a) to work overtime except in accordance with an agreement concluded by the employer and the domestic worker; (b) to work more than 15 hours’ overtime a week; or (c) to work more than 12 hours, including overtime, on any day.
Every employer must regulate the working time of each employee: (a) in accordance with the provisions of any Act governing occupational health and safety; (b) with due regard to the health and safety of employees; (c) with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87(1)(a); and (d) with due regard to the family responsibilities of employees.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 7
Compressed workweek
An agreement in writing may require or permit an employee to work up to 12 hours in a day, inclusive of the meal intervals, without receiving overtime pay. However, such an agreement may not require or permit an employee to work: (a) more than 45 ordinary hours of work in any week; (b) more than 10 hours’ overtime in any week; or (c) on more than 5 days in any week.
Basic Conditions of Employment Act 1997 as amended 2002 §11
REST PERIODS
Rest breaks
General provisions
An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.
Meal breaks are not paid, unless the employee is required to work or be available for work. Also, an employee shall be remunerated for any part of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.
Basic Conditions of Employment Act 1997 as amended 2002 §14(1) and (3)
Historical data (year indicates year of data collection)
2009: One hour after five hours of continuous work.
The employer may require or permit that duties that cannot be left unattended and cannot be performed by another employee be worked during rest breaks.
An employee must be remunerated for a meal interval in which he or she is required to work or is required to be available for work. An employee shall also be remunerated for any part of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.
2007: One hour after five hours of continuous work.
The employer may require or permit that duties that cannot be left unattended and cannot be performed by another employee be worked during rest breaks.
An employee must be remunerated for a meal interval in which he or she is required to work or is required to be available for work. An employee shall also be remunerated for any part of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.
1995: 1 hour meal break after 5 hours of work.
Exceptions
The meal break entitlement does not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.
Also, an employee may be required or permitted during a meal break to perform only duties that cannot be left unattended and cannot be performed by another employee. However, the employee must be paid for a meal interval in which the employee is required to work or is required to be available for work.
Basic Conditions of Employment Act 1997 as amended 2002 §§6, 14(2), 14(3)
Daily rest periods
Duration
An employer must allow an employee a daily rest period of at least twelve consecutive hours between ending and recommencing work.
Basic Conditions of Employment Act 1997 as amended 2002 §15(1)
Historical data (year indicates year of data collection)
2009: 12 hours.
2007: 12 hours
1995: 12 hours.
Exceptions
The daily rest period requirement does not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.
Further, an employer and employee may agree in writing to reduce daily rest to 10 hours for an employee who lives on the premises at which the workplace is situated and whose meal interval lasts for at least 3 hours.
Basic Conditions of Employment Act 1997 as amended 2002 §§6, 15(2)
Weekly rest periods
Duration
» General
An employer must allow an employee a weekly rest period of at least 36 consecutive hours.
Basic Conditions of Employment Act 1997 as amended 2002 §15(1)
Historical data (year indicates year of data collection)
2009: 36 hours.
2007: 36 hours
1995: Sundays.
» Exceptions
The weekly rest period requirement does not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.
Further, a written agreement may provide for a rest period of at least 60 consecutive hours every two weeks, or for an employee’s weekly rest period to be reduced by up to 8 hours in any week if the rest period in the following week is extended equivalently.
Basic Conditions of Employment Act 1997 as amended 2002 §§6, 15(3)
Day specified
» General
The weekly rest period is to include Sunday.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 15(1)
» Exceptions
Alternative days may be set by agreement.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 15(1)
Work on weekly rest day
» Criteria
No statutory criteria for working during the weekly rest period identified.
» Compensation (for working on a rest day)
An employer must pay an employee who works on a Sunday: (a) if the employee ordinarily works on a Sunday - one and one-half times the employee’s wage for each hour worked; (b) if the employee does not ordinary work on a Sunday - at double the employee’s wage for each hour worked; and (c) no less than the employee’s ordinary daily wage, irrespective of the number of hours worked on a Sunday.
Alternatively, an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in accordance with the above.
Basic Conditions of Employment Act 1997 as amended 2002 §16(1), (2) and (3)
» Prohibitions and limitations
No prohibitions or limitations on working on weekly rest days identified.
ANNUAL LEAVE AND PUBLIC HOLIDAYS
ANNUAL LEAVE
Qualifying period
No qualifying period identified.
Duration
» General
An employer must grant an employee at least: (a) 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or (b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid; (c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.
Basic Conditions of Employment Act 1997 as amended 2002 §20(2)
Remarks: For the purposes of the annual leave entitlement, “annual leave cycle” means the period of 12 months' employment with the same employer immediately following: (a) an employee’s commencement of employment; or (b) the completion of that employee’s prior leave cycle (Art. 20(1) of the Basic Conditions of Employment Act 1997 as amended).
Historical data (year indicates year of data collection)
2009: 21 days, or
1 day for every 17 days worked, or
1 hour for every 17 hours worked.
2007: 21 days
1995: 14 days.
» Exceptions
No exceptions identified. However, an employer may reduce an employee’s entitlement to annual leave by the number of days of occasional leave on full remuneration granted to the employee at the employee’s request in that leave cycle.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 20(7)
Payment
» Amount
An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated: (a) at the employee’s rate of remuneration immediately before the beginning of the period of annual leave; and (b) by reference to the number of hours the employee ordinarily works, in accordance with section 35 (Calculation of remuneration and wages).
Basic Conditions of Employment Act 1997 as amended 2002 §§21(1), 35(1)
» Date of payment
An employer must pay an employee leave pay— (a) before the beginning of the period of leave; or (b) by agreement, on the employee’s usual pay day.
Basic Conditions of Employment Act 1997 as amended 2002 §21(2)
Schedule and splitting
Annual leave must be taken in accordance with an agreement between the employer and employee. If there is no agreement, annual leave shall be taken at a time determined by the employer.
Leave must be granted not later than 6 months after the end of the annual leave cycle (12 month periods from date of employment).
Basic Conditions of Employment Act 1997 as amended 2002 §20(4) and (10)
Work during annual leave
An employer may not require or permit an employee to work during her or his period of annual leave.
Basic Conditions of Employment Act 1997 as amended 2002 §20(9)
PUBLIC HOLIDAYS
Number and dates
The following 12 statutory public holidays are set in South Africa: New Year’s Day 1 January Human Rights Day 21 March Good Friday Friday before Easter Sunday Family Day Monday after Easter Sunday Freedom Day 27 April Workers’ Day 1 May Youth Day 16 June National Women’s Day 9 August Heritage Day 24 September Day of Reconciliation 16 December Christmas Day 25 December Day of Goodwill 26 December
Whenever a Public Holiday falls on a Sunday the following Monday shall be a Public Holiday.
Public Holidays Act 1994 §2, Schedule 1
Payment
If a public holiday falls on a day on which an employee would ordinarily work, the employer must pay the employee at least the wage that the employee would ordinarily have received for work on that day.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 18(2)
Work on Public Holidays
» Criteria
An employer may not require an employee to work on a public holiday except in accordance with an agreement.
Basic Conditions of Employment Act 1997 as amended 2002 §18(1)
» Compensation
If an employee works on a public holiday falling on a day on which the employee would ordinarily work, the employer must pay that employee an amount: (a) at least double the amount the employee would ordinarily earn for work on that day; or (b) if it is greater, the amount the employee would ordinarily earn for work on that day plus the amount earned by the employee for the time worked on that day.
If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to: (a) the employee’s ordinary daily wage; plus (b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.
Basic Conditions of Employment Act 1997 as amended 2002 §18(2) and (3)
EMERGENCY FAMILY LEAVE
An employee who has been in employment with an employer for longer than four months, and who works for at least four days a week for that employer, is entitled to 3 days’ paid leave: (a) when the employee’s child is born; (b) when the employee’s child is sick; or (c) in the event of the death of: (i) the employees spouse or life partner, or (ii) the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
An employer must pay an employee for a day’s family responsibility leave: (a) the wage the employee would ordinarily have received for work on that day; and (b) on the employee’s usual pay day.
Basic Conditions of Employment Act 1997 as amended 2002 §27(1), (2) and (3)
PART-TIME WORK
General provisions
No specific regulation of part-time work identified. Further, employees who work less than 24 hours a month for an employer are not covered by the working time provisions of the Basic Conditions of Employment Act 1997 (as amended).
Basic Conditions of Employment Act 1997 as amended 2002 Art. 6(1)(c)
NIGHT WORK
Criteria for night work
An employer may only require or permit an employee to perform night work, if so agreed, and if: (a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and (b) transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.
Basic Conditions of Employment Act 1997 as amended 2002 §17(2)
Limits
Daily hours limit
No statutory provision specific to night work identified. However, the Code of Good Practice on the Arrangement of Working Time provides that night shifts should be no longer than morning and afternoon shifts.
Code of Good Practice on the Arrangement of Working Time Art. 6.4
Schedule
The frequency of night work should be limited as much as possible for each worker. Further, where long night shifts are used they should be carefully reviewed to find ways to avoid excessive fatigue. Successive long night shifts should be avoided to the extent practicable.
Code of Good Practice on the Arrangement of Working Time Art. 6.2 and 6.4
Rest breaks
No relevant provisions specific to night work identified.
Daily rest periods
No relevant provisions specific to night work identified.
Weekly rest periods
No relevant provisions specific to night work identified.
Annual leave
No relevant provisions specific to night work identified.
Compensation
An employer compensate an employee for the performance of night work by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours.
In addition, the employer must ensure that transportation is available between the employee’s place of residence and the workplace at the start and end of a night shift.
Basic Conditions of Employment Act 1997 as amended 2002 §17(2)
Workers' health
An employer who requires an employee to perform work between the hours of 23:00 and 06:00 at least five times per month or 50 times per year must: (a) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands: (i) of any health and safety hazards associated with the work that the employee is required to perform; and (ii) of the employee’s right to undergo a medical examination in terms of paragraph (b); (b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards: (i) before the employee starts, or within a reasonable period of the employee starting, such work; and (ii) at appropriate intervals while the employee continues to perform such work; and (c) transfer the employee to suitable day work within a reasonable time if: (i) the employee suffers from a health condition associated with the performance of night work; and (ii) it is practicable for the employer to do so.
Basic Conditions of Employment Act 1997 as amended 2002 §17(3) and (4)
Remarks: Articles 10.2 and 10.3 of the Code of Good Practice on the Arrangement of Working Time provides that employer should ensure the following services are available to night workers: (a) first aid services; (b) qualified safety supervision; (c) occupational health services, in particular counselling on nutrition and fatigue related-problems; (d) emergency services in case of accidents, including transportation to hospitals; and further ensure that: (i) there is adequate security for employees at the workplace; (ii) employees are able to obtain safe, affordable transportation between their places of residence and their workplace; (iii) there are adequate eating facilities; (iv) there are adequate rest rooms and change-rooms.
Transfers
If an employee works between the hours of 23:00 and 06:00 at least five times per month or 50 times per year suffers from a health condition associated with the performance of night work, the employer must transfer the employee to suitable day work within a reasonable time if it is practicable for the employer to do so.
Basic Conditions of Employment Act 1997 as amended 2002 §17(3)(c) and (4)
SHIFT WORK
Criteria for shift work
No statutory criteria for shift work identified.
Limits
Daily hours limit
No daily limits specific to shift workers identified.
Weekly limit
No weekly limit specific to shift work identified.
Overtime work
Overtime should be avoided, especially in occupations involving special hazards or heavy physical or mental strain.
Code of Good Practice on the Arrangement of Working Time § 5
Schedule
The frequency of shift rotation should take account of the difficulties workers may have in adapting to night work. It is preferable that shifts be rotated in a forward direction (morning to afternoon to night), bearing in mind workers`preferences, local conditions and difficulties in scheduling a long period of rest after spells of night shifts.
Workers should receive reasonable notice in advance of scheduled hours of work and of any foreseeable changes to the schedule.
Arrangements should be considered to accomodate the special needs of workers such as pregnant and breast-feeding workers, workers with family responsibilities, older workers, disabled workers or workers with health problems, and also workers`personal preferences for the scheduling of their own free time.
Employees may change shifts every week or at shorter or longer intervals.
Code of Good Practice on the Arrangement of Working Time §§ 5, 6, Glossary
Rest breaks
No relevant provisions specific to shift work identified.
Daily rest period
No relevant provisions specific to shift work identified.
Weekly rest period
Rest periods for shift workers should be scheduled to fall on weekends a certain minimum number of times during a given period and the frequency of weekend work should be limited as much as possible for each worker.
Code of Good Practice on the Arrangement of Working Time §6
ON-CALL WORK
Criteria
No provisions regulating on-call work identified.
FLEXITIME
Criteria
No provisions regulating flexitime identified.
CASUAL WORK
General provisions
No provisions specific to casual workers identified.
SHORT-TIME WORK/WORK-SHARING
General provisions
No relevant provisions identified.
RIGHT TO CHANGE WORKING HOURS
Type of changes permitted
No provisions establishing a right change work hours identified.
INFORMATION & CONSULTATION
Information
An employer must supply an employee with a written record of the employee’s ordinary hours of work and days of work, the rate and pay for overtime work and the leave to which the employee is entitled, when the employee commences employment.
Basic Conditions of Employment Act 1997 as amended 2002 Art. 29(2)
Consultation
No relevant provisions identified.
Results generated on: 17th April 2024 at 00:41:04.
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