Article by listed attorney: NANIKA PRINSLOO
Whenever an employee and employer relationship exists, there must a contract of employment, in terms of the Basic Conditions of Employment Act (referred to in this article as the BCEA), Act 75 of 1997.
An employment agreement is extremely important, as it regulates the relationship between the employer and the employee: work hours, remuneration; time off; increases; job description – and all other matters that need to be regulated. The BCEA regulates employment standards and is a very important piece of legislation which should be adhered to. The BCEA dictates the most basic work rights for employees and these rights apply to all places of work. In the title of the BCEA, the goal of the Act is set out as wanting to have fair labour practices as per the Constitution for all employees and employers. There are minimum employment conditions set out in the BCEA that all employment agreements must comply with. However, employers and employees can deviate from some of the basic conditions, because life is flexible and the parties need to be able to negotiate. There are however, certain basic rights which cannot be negotiated about.
There are variable and non-variable rights. The non-variable rights are rights that are the minimum conditions of employment that are required for employees, such as maximum hours of work, limits on overtime, overtime pay, annual leave, sick leave, maternity leave, responsibility leave, notaice periods and records to be kept by employers.
There are certain definitions in the BCEA that are important:
1. Employee – a person must be an employee for the Act to be applicable;
2. Basic Conditions of Employment – the employee must be determined for a certain time to qualify as an employee;
3. Collective agreement – where one or more trade unions in a sector that the union is registered for makes agreement with employers or employer organisations, then those collective agreements are applicable to all employees in that sector;
4. Employee – any person who works for another person/company/or the state and who receives a salary or a wage or other remuneration for services rendered. It excludes independent contractors;
5. Overtime – any time that an employee works more than the hours of work agreed upon is overtime
6. Remuneration – this is payment for services rendered, and can be in cash (salary/wage) or it can be paid in kind (housing/food), sometimes in both cash and kind.
The BCEA always takes precedence over any agreement. It doesn’t matter when the contract was entered into – either before the Act came into effect or thereafter. This means that if there is something in the employment agreement that is in conflict with the Act, the Act will apply to that particular clause that is in conflict and not the contract.
The BCEA applies to all employees, except for the following type of employees:
a. People who are busy with “on the job” (vocational) training - However, the BCEA does apply to these types of employees, but only if they are not covered by any other law with regards to their employment;
b. Employees on a merchant ship - This type of employees fall under the Merchant Shipping Act, Act 57 of 1951 and their employment is covered by that Act and not the BCEA. However, the BCEA does apply to these employees with regards to severance pay, but only with regard to severance pay. This means that if there is an issue with severance pay, the BCEA will be followed and not the Merchant Shipping Act. For all other employment issues for these employees, the Merchant Shipping Act will be followed;
c. Employees as well as senior management who earn above the earnings level threshold – the BCEA applies to them, but not with regards to working hours;
d. Employees who work less than 24 hours per month – these employees do not fall under the BCEA.
If the BCEA is correctly applied by employers and employees, there will be less problems and both parties to an employment agreement will be protected. This way the work environment will be healthier; employees will be free to voice their problems and there will be employment standards which will be in the interest of all parties concerned.
This article written by Nanika Prinsloo of Prinsloo and Associates Attorneys and Conveyancers.
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