Basic Conditions of Employment Act (1997 As Amended)

The purpose of this Act is the advancement of economic development and social justice giving effect to constituent’s rights to fair labour practices as indicated in section 23(1). This should be done by establishing and enforcing basic conditions of employment and by giving effect to the obligations South Africa has in terms of the International Labour Organization.

The objectives of the Basic Conditions of Employment Act will afford the least protected worker protection in the workplace environment.

The act takes precedence over any agreement, whether entered into before or after the commencement of the Act. In other words, the conditions laid down in the Act represent a minimum or basic condition.

Rights of Employees

Every employee has the right to:

• Complain to a fellow employee, a trade union representative or a trade union official or a labour inspector concerning the failure or refusal by an employer to comply with this act.
• Discuss their conditions of employment with their fellow employees, a trade union representative, their employer or any other person.
• Refuse to comply with an instruction that is contrary to this Act or any sectoral determination.
• Refuse to agree to any term or condition of employment that is contrary to this Act or any sectoral determination.
• Inspect any record kept in terms of this Act that relates to the employment of that employee.
• Participate in proceedings in terms of this Act.
• Request a trade union representative or a labour inspector to inspect any record kept in terms of this Act that relates to the employment of that employee.
• Every trade union representative has the right at the request of an employee to inspect any record kept in terms of this Act that relates to the employment of that employee.

NOTE: An employer must display a statement in the prescribed form regarding the employee’s rights under this act at the workplace; where it can be read by employees.

Click here to view an explanation of the Basic Conditions of Employment Act.

Click on the link below to open the resource.

Handout 4B 12300 Basic Conditions of Employment Act

Personnel Record Keeping

Employers have specific administrative duties assigned to them by the BCOE. These duties include keeping a record of employee information/data for at least four years after employment; providing the employee with a proper employment contract; providing the employee with detailed information on remuneration; providing employees with certificates of service.

Record-Keeping

The employee's Personnel Folder should be used to record personal, and emergency information and to document significant events and discussions supervisors have with their employees regarding performance, recognition, training and conduct.

Documenting is a supervisor’s responsibility and should not be assigned to clerical personnel.

Employees have a right to see initial notes concerning performance or conduct and may review the contents of their work folder upon request.

Employee personnel folders must be maintained in a secure area that guards against unauthorized access yet is readily accessible for supervisors to enter notes and other documentation.

Recommendations For Employee Record Keeping

• Review applicable laws with regard to required records.
• Review employment application forms, evaluation forms and other similar documents to be sure they are non-discriminatory.
• Review with supervisors the kind of disciplinary documentation which should be maintained in all employees' files.
• Know to what extent state laws mandate employee access to personnel files and establish a system for controlling such access.
• Do not disclose information on employees except to those whose who have a legitimate need to know the information.
• Do not discuss charges or complaints against individual employees with more people than absolutely necessary.
• Get consent before disclosure where possible.
• Have one person responsible for all disclosures to ensure consistency of treatment.
• Provide “neutral” references for former employees.
• Maintain adequate security overall employment records.

Types Of Employee Records

The personnel file: This “all-purpose” file should contain all human resources information about each employee (except medical and health insurance files) including:

• Applications or resumes
• Performance reviews
• Employee comments or responses if appropriate
• Disciplinary actions
• Salary history, deductions, bonuses, special pay (tuition reimbursement for example), pay rate changes
• Promotions, demotions
• Apprenticeships, job training, courses or degrees taken during the job period
• Attendance (vacation days, sick days, personal days, family leave days, days absent without permission).

Family/dependent records: Any family history whether medical or otherwise. If the employee’s health insurance covers the employee’s dependents, these records may be kept with the employee’s other family records but must preferably be separate from the employee’s personnel file.

Medical records: Medical exams, medical history and anything else medical – access to these records is strictly governed by a “need to know” policy. Evidence of HIV status is particularly sensitive and should be kept on an employee’s personnel file.

Payroll records: Generally, these are maintained for all employees by a pay period and are not kept in the individual worker’s personnel file. They record the work period, straight and overtime hours worked, pay rate, deductions/additions, and wages paid.

Changes In Employee Status

Records need to be kept of all amendments to contracts of employment. Unless this is not possible, these should all be in writing and signed for by both parties.

Reasons for a change of status of an employee could be a result of:

• Temporary or permanent promotion
• Temporary or permanent demotion
• Transfer
• Relocation
• Restructuring
• Skills development
• Incapacity due to ill health or injury
• Disciplinary action could include: Suspension with or without pay as a result of disciplinary action
• Death – in which case you need to see to the final payment and to whom
• Change in marital status (may have medical aid and pension implications)
• Change in family status, e.g. birth or a child, death of a family member (may have medical aid implications)

Types Of Employee Conditions And Relevant Administration

Regulation Of Working Time

Every employer must arrange the working time of each employee in accordance with the BCOE or any act regulating Health and Safety and ensure that the working times do not endanger the employee’s health or safety.

Working hours must also be arranged with due regard to the family responsibilities of employees.

For the purposes of the act “day” means a period of 24 hours measured from when the employee commences work.

Click here to view an explanation about regulating work times.

Klik hier om na ’n verduideliking van die reëling van werkstye te luister.

Click here to view a summary of your working time

Click here to view a handout that contains sections 10 to 18 in the Basic Conditions of Employment Act.

Overtime Administration

The type of administration and records you will need to keep for overtime depends on:

• The stipulations of the Basic Conditions of Employment Act (BCEA) or the type of agreement entered into with your employees (or their representatives) regarding overtime, including how it will be paid out for – in terms of pay and/or time off in lieu of overtime worked – as long as these are not in conflict with the BCEA.
• Whether overtime pay conditions vary according to the types of posts of the individuals concerned or according to your particular agreement regulating overtime.
• Your method of recording overtime, i.e. electronically or manually.

You need to keep accurate records of:

• Any overtime agreement you have in place and the fact that your methods of dealing with overtime are as per this agreement.
• The starting and expiry dates of overtime agreements – have to be renewed at least annually to be valid.
• Whether overtime was worked on a daily, weekly, monthly or annual basis.
• When it was reimbursed – employees must be paid out or granted paid time off for overtime within one month of becoming entitled to it.
• How the overtime was reimbursed – this could be in any of the following ways, as per your individual contract of employment.
• Payment of at least one-and-a-half times the employees’ hourly wage rate for overtime worked on a normal working day or a Saturday.
• At least 90 minutes of paid time off is granted to employees for each hour of overtime worked on a normal working day or a Saturday.
• Payment of at least twice the employee’s hourly wage rate for overtime worked on a public holiday or a Saturday, unless this is normal, in which case the rate is 1 ½ times the hourly rate.
• Similarly, at least two hours of paid time off is granted to employees for each hour of overtime worked on a public holiday or a Sunday, unless this is normal in which case the rate is 1 ½ time, i.e. 90 minutes off for every 60 minutes worked.
• You can split pay and time when reimbursing overtime, giving the employee 30 minutes off plus an hour’s pay, if you have a collective agreement in place for this measure.
• As per your own particular collective agreement, as long as this does not require an employee to work more than an average of 45 hours of work per week or an average of more than five hours of overtime per week, over the agreed period.

Leave

Click here to view a summary of the different leave types.

Employees who work less than 24 hours per month are excluded from the application of this chapter of the BCOE.

Specifications By The BCOEA On Leave

Compulsory Leave – By “compulsory leave” we are referring to all leave that must be granted as per the Basic Conditions of Employment Act (BCEA) and/or any other legally binding regulation agreement which may apply to your own company (both the latter and the BCEA should regulate your own particular conditions of employment document).

Annual leave – record as per annual cycle from the date of employment.

Family responsibility leave (this subsumes what was often previously termed “compassionate leave” and is granted in cases of death or children’s illnesses) – record as per annual cycle from the date of employment.

Sick leave – record as per three-year cycles from the date of employment.

Maternity leave – record as per confinement. Also, you should keep all the applicable records pertaining to any occupational disease or injury leave that your company may have to grant – this falls out of the ambit of “sick leave”.

Non-Compulsory Leave – leave not required by law and as per your company’s own conditions of employment – for example:

Paternity leave

Study leave

Extended leave/sabbatical leave after a specified number of years of service;

Special paid leave, e.g. For moving home;

Special unpaid leave.

(For more information on leave, see the Sample Conditions of Employment Document and the Summary of the Basic Conditions of Employment Act.)

Leave Administration

As far as leave is concerned, the employee’s personnel file should include:

• Leave application forms signed both by staff members applying for leave and by the manager approving the applications;
• Any records or notes you may use for planning leave – per employee or occupation, department, division or business unit;
• Accurate and up-to-date records of all types of leave taken and leave due for each employee, as detailed below.

Remuneration, Deductions And Notice Of Termination

This chapter of the act applies to all employees, except employees who work for less than 24 hours per month.

Section 29 (1) (No) (o) and (p), 30, 31 and 22 do not apply to :

• Employers employing less than 5 employees
• Domestic workers

Employees must pay remuneration to each employee according to their agreements – which should include payment in money to be made daily, weekly, fortnightly or monthly and be in cash, cheque or direct deposit into the employee’s bank account.

Remuneration must be paid within 7 days of completion of the period of work or termination of the employment contract. Payment must be made at the workplace/place as agreed upon; during working hours or within 15 minutes of commencement or conclusion of working hours, and in a sealed envelope. Remuneration, deductions and termination administration

The following documentation should be kept:

• Garnishee orders
• Signed repayment/deduction agreements
• Notice of termination of service/resignation
• Notice agreement (signed)
• Accommodation agreements
• Copy of payslips

Klik hier om meer te leer oor die Wet op basiese diensvoordele.