Guide to South African Labour Law

When you start and run a business in South Africa, you need to know the South African labour laws. These laws govern how you treat your employee(s). As a business owner, it’s critical that you follow these laws to avoid hefty fines and court cases.

Labour laws are designed to protect employees and their rights. They ensure that employees are treated fairly, paid on time, and that they have a healthy work environment amongst many other things.

Key elements of South Africa’s labour laws are the Basic Conditions of Employment Act, the Labour Relations Act, and the Employment Equity Act. All these regulations have unique standards for working conditions in South Africa.

In this guide we look at the South African labour laws, how they work and what you need to comply with.

The Basic Conditions of Employment Act governs the basic rights of employees. These rights are applied to all places of work. The Act gives effect to fair labour practices including working hours, overtime, health and safety etc. It does not apply to members of the National Defence Force, State Security Agency, and unpaid volunteers working for charities.

Working Hours

The Act has several sections which dictate how many hours employees must work. This includes:

• Employees must not work more than 45 hours a week.
• Employees must work 9 hours a day if they work for 5 days or less a week.
• Employees must work 8 hours a day if they work for more than 5 days a week.

Overtime

The Act dictates that if an employee must work overtime, it must be an agreement between employee and employer. The employee must not work for more than 12 hours a day, or more than 10 hours overtime a week.

The only way to increase working time to 15 hours a week is through an agreement between employee and employer. This can only be done for up to two months a year.

Night Work

If an employee works between 18:00 and 06:00, they have the right to extra pay or be allowed to work fewer hours for the same amount of money.

The employer must provide transport for nighttime workers. If an employee usually works between 23:00 and 6:00, they must be informed of health and safety risks. If the night shift becomes a health risk, the employee also has a right to be moved to a day shift. The employee is also entitled to regular medical check-ups.

Public Holidays

Working during public holidays must be agreed upon between the employer and employee. If the employee works during a public holiday, they must be paid for it or get time off work.

Breaks and Rest Periods

The Act dictates that an employee must have a meal break of 60 minutes (1 hour) after 5 hours of work. Only a written agreement may lower this to a 30-minute break if the employee works less than 6 hours a day.

Employees have the right to a daily rest period of 12 continuous hours and a weekly rest period of 36 hours. Unless agreed otherwise, this rest period must include Sundays.

Note: If an employee works on Sundays, they must get double pay. If an employee normally works on Sundays, they must be paid one-and-a-half times the normal wage. There may be an arrangement for paid time off instead of overtime pay.

Leave

The Basic Conditions of Employment Act also governs the amount of leave an employee is entitled to. The Act outlines that:

• An employee can take up to 21 continuous days of annual leave by agreement. The employee can also take 1 day for every 17 days worked or 1 hour for every 17 hours worked.
• Leave must be taken no later than 6 months after the end of the annual leave period. Employers are entitled to pay for any leave outstanding when they leave the job.
• Employees can take up to 6 weeks of paid sick leave during a 36-month period.
• During the first 6 months of starting a company, employees can take 1 day’s paid sick leave for every 26 days worked.

Note: Employers may ask for a medical certificate before paying the employee if they are sick for more than 2 days at a time or more than twice in 8 weeks.

Maternity Leave

Maternity leave is the time (paid or unpaid) that a new mom takes off work after the birth or adoption of a child.

The Act dictates that:

• If an employee is pregnant, they can take up to 4 continuous months of maternity leave.
• Maternity leave can be started any time from 4 weeks before the expected date of birth. Or on a date a doctor/midwife says is necessary for the mom’s health or the health of the unborn child.
• No employee may work for 6 weeks after the birth of the child unless certified by a medical professional.

Rights for Breastfeeding Employees

• A pregnant or breastfeeding employee may not do work that is dangerous to them or the child.
• When a breastfeeding employee returns to work, they may request a private space to breastfeed or express milk.
• The Code of Good Practice says that employees during pregnancy or after birth can make arrangements to have two 30-minute breaks for breastfeeding or expressing milk.
• Breastfeeding employees have the right to a clean and private space. This does not include the toilet.

Parental Leave

Parental leave is the time taken off by parents or caregivers. This time is used to care for children or a new baby. The BCEA dictates that employees have the following parental rights:

• Parents are entitled to 10 consecutive unpaid paternity leave. The employee can claim unpaid leave from the Unemployment Insurance Fund (UIF).
• This right is also applicable to employees who adopt a child under 2 years old. Parental leave can be taken from the date the adoption order is given or when the child is placed under the care of the new parents.
• All employees taking parental leave must inform the employer when the leave will be taken.

Note: Employees must confirm with their Human Resources department if the company has taken up the 10-day parental leave and its conditions.

Family Responsibility Leave

Employees that have worked for longer than 4 months are entitled to 3 days paid family responsibility leave per year. Family responsibility leave is taken when:

•  child is born.
• A child is sick.
• The death of a spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

Note: An employee may ask for proof of the birth, sickness, or death for which the leave was taken.

Job Specifications and Payment

Under the BCEA, employees have the right to know the full details of their jobs and the details of their salary.

Minimum Wage

Minimum wage is the lowest amount of money an employee can be paid. In South Africa, the minimum wage is R 27,58 per hour. The minimum wage is also dependent on the sector the business operates.

In terms of payment, the BCEA dictates that an employer must pay an employee the following:

• All employees must be paid in South African Rands (ZAR).
• All employees must be paid daily, weekly, every two weeks, or monthly.
• All employees must be paid in cash, with a cheque or through a direct deposit.
• All employees must be sent their payslips.

Each payslip must include:

• The name and address of the employer.
• The employee’s name and job title.
• The period of payment.
• The employees pay.
• The amount and purpose of any deductions taken from the employee’s salary.
• The total number of ordinary and overtime hours worked.

Note: An employer may not deduct pay from an employee unless agreed in writing, and the deduction is required by law.

Termination of Employment

Termination of employment refers to when an employee’s contract with a company has ended. This can be voluntary or involuntary.
Under the BCEA an employer or employee must give notice by the end of the employment contract within:

• 1 week, if employed for less than 6 months.
• 2 weeks, if employed for 6 months to a year.
• 4 weeks, if employed for 1 year or more.

Note: The notice must be written, except for employees or employers who cannot write. If either cannot write, a verbal notice must be given.

Severance pay must be paid to employees if they are dismissed due to retrenchment or restructuring. Employees are entitled to at least 1 week’s pay for every year they work.

Employment Conditions Commission

The BCEA allows the Employment Conditions Commission to advise the Minister of Employment and Labour.

The Act provides a framework for economic development, social justice, labour peace, and democracy within the workplace. The Act regulates the workplace rights of trade unions and promotes and facilitates collective bargaining within the workplace and a sectoral level.

Who is Covered by the Act?

The LRA covers the following people:

• A person who has worked for another person for at least 40 hours per month over the last 3 months.
• A person who is economically dependent on the employer.
• A person who is provided with tools of trade and equipment.
• Someone who only works for one employer.

The Act also gives protection to people who apply for jobs from discrimination. It also states that no person may require a person seeking employment to not be a member of a union or workplace forum. Or to give up their membership to a trade union or workplace forum.

The Labour Relations Act also covers former employees who are disputing an employer’s failure to re-employ them when the employer has re-hired others for the same reason. Also, the Act protects employees who have not been hired although there is an employment agreement.

Much like the Basic Conditions of Employment Act, the Labour Relations Act does not cover members of the National Defence Force, the State Security Agency, and the South African Secret Service.

Domestic workers, members of the SAPS (police) and essential service and maintenance workers are restricted. These restrictions are related mainly to organisational rights (trade unions) and the right to strike.

Trade Unions Under the Labour Relations Act

The Act strengthens trade union organisations in two ways:

• It supports freedom of association rights which allows employees and jobseekers to be members of a trade union.
• Supports organisational rights and allows unions to organise employees.

Note: The Act also gives rights to employees to come together to form employers’ organisations.

Additionally, the Labour Relations Act includes:

• The Act prevents employers from offering incentives to employees or jobseekers to not join a union.
• The Act stops the victimising of employees or jobseekers for their trade union activities.

Under the Labour Relations Act, registered unions have more rights than unregistered unions. Some of the rights of registered unions include:

• Organisational rights are awarded by the Commission for Conciliation, Mediation, and Arbitration (CCMA).
• A right to become a member of a bargaining or statutory council. This is subject to admission requirements of the council.
• Right to enter agency and closed shop agreements.
• Right to establish workplace forums.
• Right to conclude collective agreements as defined under the Labour Relations Act.

Labour Practices Under the Labour Relations Act

The Labour Relations Act has a list of unfair labour practices including:

• Unfair treatment or conduct of an employee relating to the promotion, demotion, probation or training of the employee.
• Unfair suspension of an employee. This relates to any disciplinary action short of dismissal.
• Failure by the employer to reinstate an employee in terms of any agreement made between the two parties.

Note: The Act protects ‘whistleblowers’ from dismissal, disciplinary action, suspension, demotion, harassment, intimidation and refusal or transfer or promotion.

Any labour disputes are referred to the CCMA.

The Employment Equity Act is the regulation that promotes equity in the workplace. It ensures that all employees receive equal opportunities and are treated fairly by their employers.

The Act states that an employee can not be discriminated against, either directly or indirectly, based on:

• Race.
• Gender.
• Marital status.
• Family responsibilities.
• Ethnicity or social origin.
• Colour.
• Sexual orientation.
• Age.
• Disability.
• Religion or religious practices.
• HIV status.
• Conscience.
• Beliefs.
• Political opinions.
• Cultural preferences.
• Language.
• Birth.

The Labour Relations Act aims to correct injustices of the past by putting into place affirmative action measures. These measures are designed to ensure the equitable representation of black people, women, or people with disabilities in all occupational categories.

Under the Labour Relations Act, employees are protected from unfair medical testing and evaluation. The Act states:

• An employee may be tested only when legislation requires testing or when it is justifiable for various reasons.
• HIV testing is prohibited. The only exception is when it is determined by the Labour Court.

Note: Psychological testing and assessments relating to psychology are prohibited. The only exception is if the test is scientifically valid and reliable and can be applied to all employees.

Application of the Employment Equity Act

As an employer, you have the responsibility to ensure the Act is being implemented. To achieve this, you must:

• Have clear objectives for each year of the plan.
• Include clear affirmative action measures.
• Show numerical goals to achieve equitable representation.
• Create internal monitoring and evaluation processes. This includes dispute resolution mechanisms.
• Clearly identify persons (including senior managers) who will monitor and implement the equity plan.

How to Report an Unfair Dismissal or Discrimination

To report an unfair dismissal or discrimination, you can do the following:

• Refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. This must happen within 6 months of the alleged discrimination.
• If the reported dispute cannot be solved between the two parties, a party may refer the case to the Labour Court. The parties of the case may also agree to refer the dispute to arbitration.
• Unfair dismissal cases that have alleged unfair discrimination must be dealt with in terms of the Labour Relations Act. This dismissal must be reported to the CCMA within 30 days.