Green Paper on
DEPARTMENT OF LABOUR
MINIMUM STANDARDS DIRECTORATE POLICY
PROPOSALS FOR A NEW EMPLOYMENT STANDARDS STATUTE GREEN PAPER
13 FEBRUARY 1996
Commonly Used Abbreviations
- Basic Conditions of Employment Act 3 of 1983
- Commission for Conciliation, Mediation and Arbitration
- Comprehensive Labour Market Commission
- Compensation for Occupational Injuries and Diseases Act, 130
- International Labour Organisation
Act, Act 66 of 1995 (Note: the Labour Relations Act 28 of 1956 has not yet been
repealed and is referred to as the 1956 LRA)
- National Economic Development and Labour Council
and Development Programme
- Unemployment Insurance Act 30 of 1966
- Unemployment Insurance Fund
Executive Summary - Policy
Proposals for a new Employment Standards Statute
- This Green Paper is the first step taken by the Department
of Labour to develop new legislation to regulate employment standards in South Africa and
replace the Basic Conditions of Employment Act (1993) and Wage Act (1957).
- The Green Paper is not an official government view but a set
of policy proposals and options for discussion and debate at NEDLAC, the public and other
government agencies. The result of this process will be a draft Employment Standards Bill
to be presented to Parliament in the second half of the year.
- The need for change
The BCEA and Wage Act need to be revised for many reasons. These include:
3.1 The approach of these laws to employment standards is
rigid and outdated, particularly in respect of working time.
3.2 There are arbitrary differences in conditions of
employment for different groups of workers.
3.3 Vulnerable workers are inadequately protected.
3.4 The Wage Act does not apply to farm and domestic
3.5 Their enforcement through criminal cases is ineffective
and does not encourage compliance with labour standards.
3.6 The Acts need to be revised to be consistent with the
Constitution and the new Labour Relations Act (1995).
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- Introducing 'regulated flexibility'
4.1 The Green Paper's starting point is the need to balance the
protection of minimum standards and the requirements of labour market flexibility.
4.2 To achieve this, the Green Paper proposes the concept
of 'regulated flexibility'. This has two main aspects:
4.2.1 The protection and enforcement of a revised body of
basic employment standards.
4.2.2 Rules and procedures to vary these standards through
collective bargaining, sectoral determinations for unorganised sectors and administrative
- Principal aspects
The principal aspects that the Green Paper has borne in mind in proposing
revisions to employment standards are:
5.1 Setting appropriate standards for current employment
conditions. This includes modernising standards, bringing them in line with the
Constitution and the LRA (1995) and revitalising the Wage Board to develop appropriate
standards for employees in unorganised sectors.
5.2 Allowing greater labour market flexibility
through removing inappropriate restrictions, enabling arrangements to allow for the more
productive use of working time and providing for variation through collective bargaining.
5.3 Promoting collective bargaining, as a means of
varying employment standards.
5.4 Supporting employment creation by ensuring that
proposals are compatible with employment creation and avoiding any consequence that may
5.5 Encouraging compliance with employment standards
through the introduction of more effective enforcement mechanisms.
5.6 Promoting a healthy work environment by
minimising the potential negative effects of the arrangement of working time on the health
and safety of workers and the public.
5.7 Reducing administrative burdens on employers.
5.8 Establishing a clear set of rights by developing
a simpler statute drafted in plain language.
5.9 Addressing gender discrimination
effect to South Africa's obligations under the Convention on the Elimination of all Forms
of Discrimination Against Women.
- The key areas of change proposed by the Green Paper are
- Scope of new legislation
New employment standards legislation should (like the new LRA) cover all
employees except the security and intelligence forces. There may be certain additional
exclusions. The Minister should have the power to exclude higher paid workers as well as
to vary the application of certain provisions of the Act to the public sector.
- Non-standard employment relationships
8.1 There are increasing numbers of part-time workers, temporary
workers, workers supplied by labour brokers, home workers and contract workers in the
labour market. They are particularly vulnerable to exploitation and not covered adequately
by labour legislation.
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8.2 To improve protection for these workers, it is proposed
8.2.1 Part time workers should be entitled to the
same protections as full time workers on a proportional basis.
8.2.2 Employers who engage labour contractors are
jointly liable for violations of employment standards.
8.2.3 Employment standards can be extended to
- Appropriate protections for other categories of vulnerable
workers should be developed.
- Varying Employment Standards
9.1 To allow for greater labour market flexibility, the Green Paper
identifies the extent which issues can be varied. It is proposed that employment standards
can be varied in the following ways:
9.1.1 through collective bargaining.
9.1.2 by wage determinations.
9.1.3 by administrative variation (exemptions).
9.1.4 in individual contracts of employment.
9.2 The Wage Board should be revitalised. Its name
should be changed to the Employment Standards Commission and its functions extended. Its
principal function would be to develop employment standards for sectors of the economy not
covered by collective bargaining. It should also be able to advise the Minister on a wider
variety of issues relating to the regulation of employment standards as well as the impact
of government policies on employment creation.
- Working Time
The Department is committed to the goal of reducing hours of work to 40 per week and to a
framework that enables more flexible arrangements of working time. This will require a
comprehensive and integrated approach involving legislation and national agreements.
10.2 The following package of proposals is put forward for
- Reduce hours of work from 46 and 48 to 45 and a reduction in
excessive limits for security workers from 60 to 48.
- Permit more flexible working arrangements such as compressed
working weeks and the averaging of working hours to be introduced by collective
- Remove restrictions on Sunday work.
- Adjust the system for compensating overtime.
10.2.2 A national strategy to further reduce hours
of work in the context of promoting job creation, productivity, human resource development
and wage compensation. Components of this strategy could include:
- A framework agreement which could be implemented sectorally
taking into account the specific circumstances of different sectors.
- A timetable for reduction of working time.
- Investigation by the Employment Standards Commission and the
setting of sectoral employment standards in unorganised sectors.
- Special provisions for small business.
- Technical assistance to social partners.
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10.3 The manner in which working time is organised can
impact significantly on the health and safety of workers and the public. There should be
general duty on employers to avoid these consequences. A Code of Good Practice to
guide employers and workers should supplement the duty.
10.4 Night work should be regulated. It is proposed
that a 20 per cent premium for night work should be introduced and that special steps be
taken to protect the health of night workers.
10.5 The present annual leave entitlement of two
weeks is increased to three weeks which is in line with the practice of most employers and
with international standards.
10.6 In regard to public holidays, it is proposed
that the new legislation be brought in line with the Public Holidays Act which allows for
the exchange of a public holiday with another day.
10.7 The right to paid sick leave at current levels
is retained, while changes are introduced to allow for greater flexibility to bargain
collectively on the administration of sick leave.
- Maternity and family responsibility. The following
proposals are made to modernise our legislation:
Workers are entitled to four months maternity leave during which her security of
employment is protected.
11.2 Women may not work for six weeks after the
birth of a child unless agreed to by a doctor.
11.3 A woman employed in night work or work which could be
harmful to her or her child is entitled to suitable alternative work during pregnancy and
a year after the birth of her child.
11.4 Workers with more than one year's service are entitled
to three days paid paternity or child care leave during each year.
- Child labour
Recent surveys such as the October Household Survey indicate that as many as 200,000
children or 4 per cent of children between 10 and 14 could be engaged in child labour.
12.2 There needs to be an integrated strategy linked to the
provision of free basic education and addressing poverty to combat child labour.
12.3 Children below 15 should be prohibited from working
unless a Ministerial exemption is obtained. Exemptions should only be granted if the work
does not place the child's physical and mental well being at risk.
12.4 Children between 15 and 18 should not be permitted to
perform work that is hazardous for that child's age or harmful to their health.
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- Individual employment relationships
13.1 The provisions in the Labour Relations Act (1995) on
dismissal and individual unfair labour practices (excluding those relating to
employment equity) should be transferred to the new legislation.
13.2 A four weeks notice period for all workers is
13.3 Workers should have a right to receive written
particulars of their employment.
13.4 Employers should not be able to discriminate
against workers who exercise rights conferred upon them by the legislation.
An integrated enforcement system is proposed which will move away from the adversarial
system and improve compliance with labour legislation.
14.2 Proposals include:
14.2.1 Allowing inspectors to issue
notices' to employers, and to issue penalties to employers who fail to keep
14.2.2 Workers to be able to use the Small Claims Court,
Labour Court or Commission for Conciliation, Mediation and Arbitration to institute
claims against employers.
14.2.3 Retaining criminal sanctions for serious
offences such as child labour and repeated breaches.
- Administrative obligations
15.1 Labour statutes impose different administrative obligations
upon employers, some of which overlap.
15.2 To assist employers, particularly small employers.
obligations should be reduced and simplified. A single prescribed reporting form is
proposed. This would increase the efficiency of the Department of Labour.
15.3 The new legislation should also harmonise definitions
commonly used in all labour legislation to create greater certainty.
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- Present law
- Labour market policy and employment standards
- Problems with existing legislation
- The basis for new legislation
- Principal aspects of new legislation
The publication of this Green Paper is the first step taken
by the Department of Labour in developing new legislation to regulate minimum employment
standards in South Africa. The Department believes that the Basic Conditions of Employment
Act 3 of 1983 (BCEA) and the Wage Act 5 of 1957 should be revised and replaced by a single
law regulating statutory employment standards. This is needed to meet the country's
social, political and economic goals as reflected in the Reconstruction and Development
Programme (RDP) and adopted by the Government of National Unity.
The purpose of the Green Paper is to promote a debate on
the development of the law. It contains proposals and options for discussion. It also
briefly describes important aspects of these Acts for people who may not be familiar with
The Green Paper has been prepared by the Directorate:
Minimum Standards of the Department of Labour which is responsible for enforcing the BCEA
and the Wage Act. It does not represent an official government view. It has not been
endorsed by the Cabinet. It awaits the outcome on certain issues of the Report of the
Comprehensive Labour Market Commission. The Green Paper will be submitted to the social
partners at the National Economic Development and Labour Advisory Council (NEDLAC) for
consideration. It is published to obtain public comment and will be circulated to other
government agencies to obtain their views.
The Green Paper concentrates on the principles that will
form the basis for the development of the new legislation. It draws the attention of the
public and the social partners to aspects of the existing laws that often do not receive
Once the initial negotiations at NEDLAC are concluded, and
the public comment has been received and analysed, a draft Employment Standards Bill will
be prepared and presented for consideration to the social partners at NEDLAC. It will then
be tabled in Parliament.
This chapter looks at the laws that now regulate minimum
standards and the problems with those laws. It then proposes themes for the development of
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1 PRESENT LAW
The BCEA and the Wage Act set minimum employment standards
for the majority of employees in South Africa. They are therefore the formal basis of the
employment conditions of millions of South Africans employed in the private sector. The
BCEA contains a "floor" of minimum rights for employees in the private sector.
As Table 1 illustrates these rights apply to more than four million employees. The BCEA
covers matters such as working time, overtime and overtime pay, annual leave, sick pay and
maternity leave. It does not set minimum wages. The Act does not apply to employers and
employees in sectors of the economy with wage-regulating measures (industrial council
(bargaining council) agreements, wage determinations and labour orders). It covers all
other employees, although some employees, such as managers and senior personnel, are
excluded from some of its provisions.
The Wage Act established the Wage Board. The Board has the
power to investigate standards of employment in sectors of the economy without industrial
councils and make recommendations to the Minister to make wage determinations. These may
contain minimum wages and other conditions of employment. The Wage Act still does not
apply to farmworkers and domestic workers.
TABLE 1 - Approximate figures to show number of
TOTAL WORKFORCE (PRIVATE SECTOR)
Employees covered by the BCEA
Employees covered by wage determinations
Employees covered by labour orders
Employees covered by the industrial council
2 LABOUR MARKET POLICY AND EMPLOYMENT STANDARDS
The RDP White Paper states that "an active labour
market policy must be geared towards maximising quality employment and minimising
unemployment and underemployment, and while doing so improve efficiency, equity, growth
and social justice" (paragraph 3.11.1,). Employment standards legislation is thus is
an integral part of such a labour market policy.
Current employment standards and the development of new
standards must be within the context of the economic, social and political goals of the
Government of National Unity. These include:
- employment creation
- improved living standards
- reduced social inequality
- competitive enterprises
- enhanced investment in human resources development
- improved levels of productivity
- the deepening of democracy, including workplace democracy.
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The revision of employment standards is part of a broad
developmental strategy in line with these goals. The Comprehensive Labour Market
Commission, appointed by the President, has been investigating the employment related
aspects of the RDP and will be reporting in June this year. In 1994, the Ministry of
Labour published a five year plan. In addition, the proposals in this Green Paper need to
be seen in the context of other reforms proposed by the Ministry of Labour's 1994 Five
Year Plan. Employment Equity legislation is also planned for this year, while 1997 should
see the revision of the Department's legislation in the area of human resources.
Amendments have been proposed to the Insolvency Act to strengthen the claims of workers in
the event of their employer's insolvency.
The success of aspects of the proposed legislation depend
on other areas of social reform. For example, the provisions concerning sick pay will
depend on reforms to the health system. The strategies to regulate child labour depend on
the reconstruction of our education system. The proposals for improving the enforcement of
employment standards are paralleled in the draft Mine Health and Safety Bill prepared by
the Department of Mineral and Energy Affairs and mining unions and employers. The
observance by small employers of employment standards is linked with the development of an
enabling environment for emerging and expanding SMME's as proposed in the National Small
Business Enabling Act.
3 PROBLEMS WITH EXISTING LEGISLATION
The BCEA and the Wage Act do not meet the requirements of
the country's new economic, social and political goals.
The BCEA was enacted in 1983. It merged the minimum
conditions of employment in the Shops and Offices Act and the Factories Act. Many of the
provisions in the BCEA have their origins in legislation introduced in the 1920s to 1940s.
These reflect a rigid and outdated approach to the regulation of working hours and other
conditions of employment.
Many workers are excluded from the scope of basic rights
and work without legal protection. Others have very limited protection or have minimum
standards that are harsh or excessive. Furthermore, the systems for enforcing rights and
encouraging compliance with Acts' standards have become ineffective. The law does not
protect the vulnerable and the unorganised. Many of the standards are also rigid and
restrict the productive arrangement of work and working time which hampers productivity
and efficiency. The more detailed reasons why a new law is required to give effect to
comprehensive labour market policies are:
- The daily and weekly limits on hours of work are rigid and
restrict the arrangement of working hours for both part-time and full-time employees.
These features are repeated in wage determinations.
- The BCEA was designed to protect full-time employees only:
part-time workers are excluded from significant benefits.
- Permission from an inspector is required for Sunday work in
a factory or a shop. The restriction on Sunday work is a central feature of the BCEA's
regulation of working time.
- Some aspects of hours of work in the mining industry are
regulated by the Minerals Act 50 of 1991. These are less favourable than those in the
BCEA. The Mines and Works Act 27 of 1956 prohibits Sunday work in mines.
- There are arbitrary differences in conditions of employment
for different groups of workers.
- Many of the conditions of employment in the BCEA and in wage
determinations are inappropriate, unclear or require revision:
- limits on overtime and overtime pay
- annual leave
- sick pay
- notice of termination
- maternity leave
- child labour
- Some provisions of the BCEA and wage determinations could be
challenged under the new Constitution (Act 200 of 1993), for example, child labour and
- The enforcement through criminal cases is adversarial,
ineffectual and does not encourage compliance with employment standards. This severely
disempowers the inspectorate.
- Both Acts are inconsistent with the Labour Relations Act 66
of 1995 and other laws administered by the Department of Labour. This undermines the
effectiveness of the Department.
- The protections in the BCEA and the Wage Act are not
integrated with the unfair labour practice jurisdiction.
- The Wage Act does not apply to the agriculture and the
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4 THE BASIS FOR NEW LEGISLATION
The new legislation must address both the new standards and
the procedures and institutions to make the standards effective.
This Green Paper proposes a legislative model of
"regulated flexibility". This is a policy approach that aims to balance the
protection of minimum standards and the requirements of labour market flexibility.
"Regulated flexibility" has two main aspects:
- the protection and enforcement of revised basic employment
- the establishment of rules and procedures for the variation
of these standards.
The new legislation must provide for the variation of
employment standards through collective bargaining, sectoral determination for unorganised
sectors, administrative variation and individual contracts of employment.
5 PRINCIPAL ASPECTS OF NEW LEGISLATION
In the remainder of this introduction we look at some of
the principal aspects of the proposed new legislation:
5.1 Setting employment standards
The Green Paper makes proposals to develop a set of
employment standards appropriate for current employment conditions. These are:
- to modernise employment standards
- to protect vulnerable employees and employees in
- to bring employment standards in line with the Constitution
of the Republic of South Africa 200 of 1993 and the reforms introduced by the LRA of 1995
- to incorporate protection against unfair dismissal and
unfair labour practices
- to revitalise the Wage Board (to be reconstituted as the
Employment Standards Commission)
- to develop appropriate employment standards for employees in
5.2 Allow greater labour market flexibility
The new legislation should:
- remove inappropriate restrictions on working time and other
- permit the introduction of arrangements for the more
productive use of working time, skills and equipment
- provide for wider variation of employment standards.
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5.3 Promote collective bargaining
The new legislation will promote the role of collective
bargaining as a means of varying employment standards. In particular, the proposals stress
the role of collective bargaining in introducing flexible working arrangements.
5.4 Support employment creation
"Employment creation is at the heart of efforts aimed
at creating a democratic and prosperous society" (Ministry of Labour's programme of
action 1994 to 1998 at page 3). The proposals in the Green Paper are compatible with
employment creation and seek to avoid any consequence that may destroy jobs.
5.5 Encourage compliance with employment standards
Effective measures for encouraging compliance with
employment standards need to be developed. It is proposed that the current use of criminal
sanctions as the major means of enforcement be replaced by a range of mechanisms and
incentives for compliance with employment standards.
5.6 Promote a healthy work environment
A central purpose of labour law is to promote a healthy
work environment and the arrangement of working time is a crucial aspect of this. The new
legislation should promote an approach which minimises the potential negative impact of
the arrangement of working time on employees' health and safety and on the public.
Important examples are the regulation of night work and work in sectors which affect the
safety of the public.
5.7 Reduce administrative burdens
It is important to reduce the administrative burdens placed
by current labour laws upon employers. Proposals are made to rationalise and simplify
administrative obligations upon employers.
5.8 Establish a clear set of rights
The new employment standards legislation will be drafted in
plain language and will aim to include a range of easily understood guides and schedules
to assist employees and employers to understand the law. Provision is made for the
drafting of Codes of Good Practice.
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5.9 Discrimination against women
South Africa has recently ratified the "Convention on
the Elimination of all Forms of Discrimination Against Women" of 1979. The new
legislation gives effects to obligations that affect employment standards.
5.10 International standards
The BCEA and the Wage Act do not comply with many
international standards reflected in International Labour Organisation Conventions. These
Conventions are indications of what government, employers and trade unions consider
appropriate minimum international norms and standards. The proposals for new legislation
are guided by these standards where they are appropriate for South Africa.
This chapter lists the categories of employees who are not
covered by the BCEA and Wage Act and examines whether they should be covered by the new
The RDP calls for "equal rights for all workers,
embodied in a single set of labour statutes". (paragraph 4.8.2)
Significant groups of employees (eg state employees) are
excluded from the BCEA. The Constitution states all workers are entitled to fair labour
practices. Farmworkers and domestic workers are not covered by the Wage Act.
The LRA of 1995 will be the first labour relations law to
apply to both the public and private sector. It covers all employees except members of the
security forces and intelligence services. The harmonisation of aspects of the law of
collective bargaining, dispute resolution and unfair dismissal is one of the most
significant reforms introduced by the LRA of 1995. The provisions concerning unfair
dismissal and the residual unfair labour practice are to be moved to the proposed
employment standards legislation.
State employees. The most significant exclusion from
both the BCEA and the Wage Act is that of employees of the state (both national and
provincial) and employees of state-funded educational institutions. The law of unfair
dismissal and the residual unfair labour practice which will apply to these employees is
to be transferred from the new LRA to the new employment standards legislation. The extent
to which the remainder of the proposed new legislation should similarly include the public
and private sectors requires careful consideration.
The arguments in favour of this approach include the
benefits of standardisation and consistency. Increasingly, the distinction between the
private sector and public service is becoming blurred. Internationally, many public
administrations have used private sector approaches to improve efficiency. This has led to
corresponding changes in employment standards.
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The employment standards legislation prescribes substantive
minimum conditions of employment. The sources of substantive conditions of employment in
the public service are found in the Public Service Act and the legislation regulating the
police and the educational sector, the various staff codes and bargaining council
agreements (under the new LRA). In sectors in which bargaining councils are established
these agreements will take precedence over the proposed legislation. The direct effect of
inclusion of the public service under the new law will be that many of its provisions will
not apply to the public service.
Farmworkers and domestic workers. Farmworkers and
domestic workers remain excluded from the Wage Act. These employees require the protection
of all aspects of new employment standards legislation.
Parastatal and statutory bodies. The continued total
exclusion of a variety of parastatal organisations, marketing control boards and
state-aided welfare organisation, children's welfare institutions and cultural
institutions established under particular enabling legislation is no longer appropriate.
Temporary employees employed for agricultural and
industrial shows. Temporary employees employed for agricultural, industrial or similar
shows are excluded. Exclusion is not appropriate. Any need to vary employment standards
for the duration of a show should be regulated by variation.
Employees on vessels at sea covered by the Merchant
Shipping Act 57 of 1951. It may be appropriate for the full extent of this exclusion
to be reviewed and appropriate conditions for this sector (or parts of this sector) to be
regulated by a proposed Sectoral Employment Standard (wage determination).
Trainees and university students. Employees in
training whose conditions of employment are regulated by conditions of apprenticeship
under the Manpower Training Act 56 of 1981 are excluded from the operation of the BCEA to
the extent that their conditions of employment are regulated by that Act. This approach
should continue. If specific employment standards are developed for trainees under
legislation regulating human resources development and training, those standards should
take precedence on the matters that they regulate.
University students performing work required for their
degrees should continue to be exempt from the BCEA.
Voluntary charity workers. The exclusion of
voluntary workers should continue as these employees do not require the protection of
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Partial exclusions. The BCEA applies in a limited
fashion to several significant categories of employees:
- sales personnel and travellers
- shop and office employees earning a prescribed amount
- managers and other senior personnel earning above a
The partial exclusion of sales personnel and travellers
requires consideration. The continued exclusion of high-paid employees should continue.
The Minister should exercise these powers on the advice of the Employment Standards
The legislation should cover all employees except:
- members of the security forces and intelligence services
- unpaid employees of charitable organisations
- trainees, to the extent that their conditions of employment
are regulated under other legislation.
The Minister of Labour should have the power, in
consultation with the relevant Minister, to exclude the application of any provision of
the Act to employees of the state, the South African Police Services and employees of
The Minister should have the power to exclude the
application of any provision of the Act to employees earning above a defined level of
- Part-time employees
- Temporary employees
- Employees of contractors
- Dependant contractors
- Employees at piece rates
This chapter looks at the need for the new legislation to
protect vulnerable employees in non-standard employment.
The current labour market has many forms of employment
relationships that differ from full-time employment. These include part-time employees,
temporary employees, employees supplied by employment agencies, casual employees, home
workers and workers engaged under a range of contracting relationships. They are usually
described as non-standard or atypical employees.
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Most of these employees are particularly vulnerable to
exploitation because they are unskilled or work in sectors with little or no trade union
organisation or little or no coverage by collective bargaining. A high proportion are
women. Frequently, they have less favourable terms of employment than other employees
performing the same work and have less security of employment. Often they do not receive
"social wage" benefits such as medical aid or pension or provident funds.
These employees therefore depend upon statutory employment
standards for basic working conditions. Most have, in theory, the protection of current
legislation, but in practice the circumstances of their employment make the enforcement of
rights extremely difficult. Others are excluded and consideration must be given to their
inclusion. This section identifies the main categories of non-standard employment and
makes proposals for greater protection.
The proposals must be viewed in the context of the changes
introduced by the LRA of 1995 which will significantly improve the employment security of
these employees. This must also be seen in the context of the proposals to achieve greater
compliance with employment standards set out in Chapter I.
1 PART-TIME EMPLOYEES
Part-time employees are inadequately protected by the
BCEA and the Wage Act.
Part-time employees are employees who regularly work less
than the ordinary hours of work in the sector in which they are employed. While there
appears to be relatively low levels of part-time employment (approximately 2% of the
workforce) in South Africa, most part-time employees are women [October 1994 Household
The BCEA incorrectly uses the term "casual
employees" to describe part-time employees. It classifies employees who work for an
employer on three or less days a week as "casual employees". The BCEA denies
them the right to paid leave, paid sick pay and notice of termination. A 1996 ILO study
reveals that approximately half of part-time employees in the manufacturing sector do not
receive paid leave or paid sick leave. (ILO Country Review).
The BCEA defines domestic workers who work for an employer
for three days or less in a week as "regular day workers". They receive all the
protections in the BCEA on a proportional basis, except the right to notice of
termination. This new approach was necessary because many domestic workers work part-time
for several employers. This more inclusive approach suggests the direction for future
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The basic norm should be that all employees, including
part-time employees, should be protected by employment standards. Where appropriate, these
employees should receive benefits on a proportional basis.
Employees who enter employment on a part-time basis and who
remain in regular employment should acquire the right to fill appropriate vacancies that
arise in the full-time work-force. Provisions of this type encourage part-time employment
as a "bridge" into permanent full-time employment.
Part-time employees should be entitled to all protections
in the Act, where appropriate on a proportional basis.
A part-time employee who has been employed for two years or
longer is entitled to be considered in preference to any person not in employment for a
vacancy for which the employee is adequately qualified and has sufficient experience.
2 TEMPORARY EMPLOYEES
Many employees in regular employment are classified by
their employers as temporary employees although they are in ongoing employment.
The practice of incorrectly classifying employees as
"temporary" is used by some employers to pay them lower benefits than other
employees performing similar tasks. The unfair dismissal provisions and the residual
unfair labour practice will offer protection against this type of abuse.
3 EMPLOYEES OF CONTRACTORS
Employers who engage contractors have no liability for
violation of employment standards by the contractors. Certain contractors are able to
evade their obligations in terms of labour legislation.
Employers are increasingly using contractors and
sub-contractors to supply goods or services. There is significant use of contractors in
many sectors of the economy, especially the mining industry. Considerable use is made of
contractors to perform tasks formerly performed by employees.
Three parties are involved in a contracting relationship:
the contractor, its employees and the user (the business that engages the contractor). The
terms "contractor" and "sub-contractor" are sometimes used
interchangeably and usage varies from sector to sector. (In this discussion the term
"contractor" is used to cover both categories.)
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The LRA of 1995 protects employees engaged by temporary
employment services by imposing joint and several liability for violation of employment
standards on both the employment service and the client to whom the employees are
supplied. (This means that both parties are liable in the event of a violation of labour
legislation.) This approach should be adopted in the proposed legislation to protect
employees of certain types of contractors.
Labour legislation commonly distinguishes contractors who
supply goods or services from contractors who supply labour. The potential for abuse in
labour contracting is recognised internationally; several countries prohibit labour
contracting or require authorisation. To the extent that labour contractors fall outside
the definition of a temporary employment service, the new legislation should impose joint
and several liability.
Many contracts for services are in effect contracts for
labour. This is particularly true when employees are engaged through a cascading series of
contracting relationships, for example, in the construction industry or where the
contractor has minimal infrastructure as in the security industry. These contractors
sometimes avoid their obligations by simply changing their identity or location. It is
therefore proposed that the term labour contractors should include contractors who, while
supplying a service:
- do not supervise their employees while working
- supply little or none of the infrastructure or equipment
used by their employees.
Much contracting work is performed in respect of work
formerly performed by the user's employees. This is very controversial because these
arrangements are often preceded by retrenchments. It also leads to situations in which
employees performing similar or the same work may receive different benefits. For this
reason, many countries have sought to regulate this type of contracting by placing joint
and several liability on users where the contractor's employees are performing work that
forms a part of the employer's principal or core business or by requiring equality of
treatment. The regulation of this form of contracting requires careful consideration.
An employer who engages a labour only contractor is jointly
and severally liable if the contractor violates any employment standard.
[ Top ]
4 DEPENDENT CONTRACTORS
Some workers are excluded from employment standards
because they are not classified as "employees".
Labour law traditionally distinguishes employees (who enter
into a contract of service with their employer) from independent contractors. The South
African courts look at the contract as a whole to determine whether a person is an
"employee" or an "independent contractor". This distinction excludes
"classic" independent contractors (such as a plumber hired to perform a
particular task) from the ambit of labour legislation.
The development of new working arrangements has led to an
increasing number of workers being excluded from the protection of labour legislation
because of the terms of their contract which do not meet the traditional employment test.
Sectors where this is present include home working, transport and agriculture. These
workers are potentially subject to extremely exploitative working conditions and are often
referred to as "dependent contractors".
Certain countries extend labour protection to
"dependent contractors". It is proposed that this should be done in South Africa
by empowering the Employment Standards Commission to recommend to the Minister to extend
particular sectoral employment standards to "dependent contractors".
The Employment Standards Commission should have the power
to recommend the extension of employment standards to workers who fall outside the formal
definition of an "employee" but who are engaged in a dependent contracting
5 EMPLOYMENT AT PIECE RATES
Many vulnerable workers are paid on a piece rate basis.
There is no general protection against the abuses associated with piece-rate work.
[ Top ]
There is no general protection of employees engaged on a
piece-rate basis. The BCEA provides some protection for piece workers in agriculture
(s.19(3)); a number of wage determinations and industrial council agreements either
prohibit payment other than for time worked, or prescribe specific minimum payments for
time worked by employees doing piece work, with the piece work payments being treated as
productivity bonuses. Task-based work has been used on labour-intensive job creation
schemes in the civil engineering industry.
Payment of blanket piece work rates often undermines the
provisions on working hours effectively compelling employees to work excessive hours. It
is suggested that the provisions applicable in certain wage determinations and the BCEA
approach regarding farmworkers be made generally applicable. Consideration must be given
to the inclusion of appropriate general protections for piece-rate workers.
- Variation by collective bargaining
- Variation by sectoral employment standards (wage
- Variation by administrative procedure
- Variation by individual contract of employment
Employment standards legislation must provide for variation
from the statutory standards in certain circumstances. Under the existing law variation
from employment standards is permitted by an administrative procedure for exemption or by
the replacement of the standards by those contained in wage regulating measures. Wage
regulating measures include wage determinations, industrial council agreements, labour
orders and conditions of apprenticeship. These methods of variation have been criticised
for their rigidity and lack of responsiveness to the needs of the modern enterprise in an
increasingly global economy.
Any new legislation must seek to balance the demands of
international competitiveness and the protection of basic rights of workers in order to
give effect to the goals and principles of the RDP. These include high productivity,
improved efficiency, equity and social justice (paragraph 3.1.1 of the White Paper) and
the promotion of collective bargaining at industrial and workplace levels (paragraphs
3.11.1 and 3.11.13 of the White Paper). New legislation must recognise that South Africa's
return to the international economy demands that enterprises compete with countries whose
employment standards and social costs of production vary considerably. It must therefore
avoid the imposition of legal rigidities in the labour market, provide greater flexibility
and introduce more responsive mechanisms for variation from statutory standards. The new
law envisages four methods to give effect to this idea of "regulated
- collective bargaining
- wage determinations (sectoral employment standards)
- expeditious administrative procedures for exemption
- individual contracts of employment.
[ Top ]
1 VARIATION BY COLLECTIVE BARGAINING
Collective bargaining is the preferred method of regulating
the labour market. One of the purposes of any employment standards legislation must be to
encourage collective bargaining. It can do this by permitting collective bargaining to
vary basic employment standards by collective agreement. It can promote collective
bargaining in workplaces where there are representative trade unions by requiring
agreement as a necessary condition for administrative exemption or ratification.
However there are limitations that should be placed on the
outcomes of collective bargaining to ensure that the broad policy goals of the statute are
1.1 Fundamental rights
Collective agreements should not be able to vary - to the
detriment of employees - fundamental rights and protections. The precise ambit of the
fundamental rights that merit this form of protection requires debate. The question for
debate is which rights are so fundamental that the state must guarantee them to all
employees. The Constitution and the state's public law obligations may provide the
starting point to this enquiry. The following rights and standards may constitute the core
of this category:
- the prohibition on child labour
- the prohibition on discrimination
- protection against employer abuse (for example the
imposition of fines)
- automatically unfair dismissals
1.2 Variations not against the public interest
The second reason for limiting collective bargaining is the
effect that a variation may have on third parties. For instance, the right to sick pay
illustrates an area of potential controversy. Should a bargaining council be able to
strike an agreement in terms of which employees do not have the right to paid sick leave?
This may represent trade-off for another benefit such as a higher wage increases. But this
will have adverse social costs. Employees working while they are sick results in a
transfer of costs from the enterprise to the health system. The Australian Industrial
Relations Commission ruled that an agreement of this kind was not in the public interest.
The approach to this category of rights and standards
should be to permit variation by collective bargaining subject to exemption or
ratification. The new legislation ought to provide a fast-track procedure for exemptions
based on collective agreements or provide for the ratification of collective agreements
that vary rights and standards in this category by the Employment Standards Commission.
Consideration must be given in the debate to what the test for ratification or exemption
should be. The tests that are generally employed are whether or not the variations from
the standards are: (a) in the "public interest"; or (b) "on the whole not
less favourable". The rights and protections that may fall into this class are:
- sick pay rights
- maternity rights
[ Top ]
1.3 Variation within statutory limits
The new legislation should also specify the instances in
which collective agreements are able to vary employment standards within defined limits
but without exemption or ratification. This would include the capacity to make
arrangements to promote flexible working patterns. Proposals in this regard are included
in this Green Paper. This approach has been adopted in respect of the following:
- ordinary working time including the length of the working
day and the length of the working week
- weekly rest periods
- meal intervals
It is necessary to distinguish between agreements concluded
by the parties to bargaining councils and other collective agreements. The LRA of 1995
significantly alters the inter-play between the bargaining council agreements and minimum
standards. Under the Labour Relations Act 28 of 1956 an agreement concluded by the parties
to an industrial council acquired the force of subordinate legislation once promulgated by
the Minister of Labour. The promulgated agreement, like any other wage-regulating measure,
took precedence over the provisions of the BCEA by virtue of section 1(3) of the BCEA. The
Minister's right to exercise a discretion as to whether or not to promulgate an individual
agreement allowed the Minister to examine the agreement concluded by the parties to a
council in the light of the BCEA and to determine whether or not the conditions of
employment were acceptable.
In terms of the LRA, all collective agreements, including
those concluded at bargaining councils, acquire legal force in terms of section 23 of the
Act. Agreements are no longer transformed into subordinate legislation. The role of the
Minister is confined to the extension of an agreement to non-parties within the registered
scope of the council (s. 32). The Minister does not consider the substantive conditions of
employment in deciding on an extension other than whether or not they discriminate against
The LRA of 1956 accords no special status to collective
agreements that are not promulgated in the Government Gazette. Their provisions cannot
deviate from the Basic Conditions of Employment Act unless an administrative exemption is
The new legislation should maintain the distinction that
has been traditionally drawn between bargaining council agreements and other collective
agreements. There are issues on which it is appropriate to permit bargaining councils to
vary employment standards but on which it may not be appropriate to permit individual
employers and trade unions to do so. For instance, it is not consistent with the purpose
of the legislation for individual employers to seek to compete with each other through
extending the ordinary working day or reducing the overtime rate. Bargaining council
agreements however, should be entitled to do just this. Not only because it sets a floor
for competition, but also because it is in keeping with the goal of the Labour Relations
Act which has as one of its primary objects the promotion of collective bargaining at
sectoral level. Accordingly in the debate on what the statutory limits ought to be in
respect of this category of standards, consideration ought to be given to the expanded
horizons that ought to be accorded to bargaining councils.
[ Top ]
1.4 Variation without limits
The new legislation should permit collective bargaining
agreements to vary employment standards without a requirement for administrative exemption
or ratification. Further deliberation is needed on the kind of matters that ought to be
included under this head. In respect of working time, the issues will need to be the
subject of the consultations on a national strategy referred to in the following Chapter.
A collective agreement may automatically vary any
employment standard except:
- a fundamental right
- a right that requires exemption of ratification for
A collective agreement may vary any employment standard to
the extent permitted by legislation.
2 VARIATION BY WAGE DETERMINATION (SECTORAL STANDARDS)
The Wage Board has tended to reproduce the standards in
the BCEA and has not made full use of its power to set sector specific standards.
Under existing law, the Wage Board is entitled to make
recommendations on minimum wages and employment standards in a sector. In practice the
wage board reproduced the provisions of the BCEA and very seldom made recommendations to
vary employment standards to fit the particular requirements of the sector. The Department
envisages that a restructured Wage Board (Employment Standards Commission) will provide a
mechanism to vary employment standards to suit the needs of particular sectors.
In 1993 and 1994 the BCEA was extended to cover farm and
domestic workers. A large number of provisions that apply specifically to these sectors
were included into the Act. The provisions applicable to agriculture were agreed between
agricultural employers organisations and trade unions representing farmworkers as a part
of the process of extending labour legislation to the agricultural sector. The provisions
applicable to domestic workers were the result of recommendations by the National Manpower
These sectoral provisions have increased the complexity of
the legislation. The basic conditions applicable to agriculture are found in both the BCEA
and the Agricultural Labour Act 147 of 1993. The incorporation of sector-specific
provisions in the body of the Act was required because these sectors are not covered by
the Wage Act. The jurisdiction of the Wage Board should be extended to these two sectors.
Existing provisions in the BCEA applicable to farmworkers and domestic workers should
remain in force until superseded by a bargaining council agreement or wage determination
binding on employers and employees in that sector. These provisions would be listed in a
[ Top ]
The existing provisions applicable to farmworkers and
domestic workers in the BCEA should be included in transitional provisions pending an
investigation by the Employment Standards Commission on the promulgation of a Sectoral
Employment Standard for each of the sectors.
3 VARIATION BY ADMINISTRATIVE PROCEDURE
The exemption procedure is bureaucratic and time
The Minister can grant an exemption in respect of any
aspect of the BCEA. Exemptions may be of general application or in respect of an
individual employer or employee. Authorisation from an inspector is required to work
additional overtime and for work on Sundays in factories and shops.
New legislation should use the term 'variation' instead of
'exemption'. This emphasises that employers are not being relieved of the obligation to
comply with a labour standard but being required to meet a different standard. This will
bring the statutory formulation in line with practice because most exemptions are granted
on specified conditions.
The Act does not lay down any procedure for the making and
consideration of applications for an exemption although the general rules of
administrative law apply. This requires allowing interested parties the opportunity to
make representations before any decision is made. The power to permit variations should be
conferred upon the Minister. The Minister would then be able to delegate the power to the
appropriate level within the Department.
The Minister should be able to seek the advice of the Wage
Board on any application for a variation. The Minister should be required to consult with
relevant health and safety authorities on any application for a variation that may have an
impact upon occupational health and safety.
The practice has developed that employee or trade union
consent is an important consideration in applications for exemptions. The variation
process should respect the integrity of the collective bargaining process. If a labour
standard is the subject of negotiation between an employer and trade union, no exemption
should be granted unless the trade union consents. If there is a representative trade
union in the workplace, variation should be granted only in there is a collective
agreement or the trade union consents to the variation.
Provision should be made for an expeditious procedure in
the application and the grant of exemptions. This will require decentralised decision
making and a set of guidelines to ensure consistency.
[ Top ]
If there is a representative trade union in the workplace,
variation by administrative procedure should not be permitted unless there is a collective
agreement or the trade union consents.
The administrative procedures must be expeditious.
4 VARIATION BY INDIVIDUAL CONTRACT OF EMPLOYMENT
No provision was made for variation by individual
contract of employment without an exemption.
The proposed legislation should also define the matters
than can be regulated by individual agreement. This would be more limited than collective
agreements. This would not permit employers to deal with individual employees on these
topics in contravention of the terms of a collective agreement. Issues that could be
varied by individual agreement include:
- the introduction of compressed work weeks;
- work on Sundays;
- arrangement of meal intervals;
- scheduling of annual leave.
The Wage Board has not played an effective role in the
development and enforcement of employment standards in unorganised sectors.
In recent years there has been a considerable decline in
the significance of the Wage Board. This trend is evident in the number of wage
determinations which have declined from 75 (1973) to 19 (1995). The current 19 wage
determinations cover some 90,000 employers and 730,000 employees. This figure is
misleading as the bulk of employees falling under the Wage Act are covered by a single
determination. Wage Determination 455 for the Commercial Distributive Trade covers 80,000
employers and almost 500,000 employees.
The decline in the number of wage determinations is the
result of a deliberate policy of the previous administration to run-down the Wage Board.
Wage determinations currently cover only a small proportion of unorganised employers. A
further factor that has contributed to the decline in significance of the Wage Board has
been the failure in recent years to revise minimum wages regularly. In contrast to
industrial council agreements, minimum wages have often remain static for a two year
period without any provision for escalation being made in the determination.
[ Top ]
An effective Wage Board remains an essential part of
government policy to develop and enforce effective employment standards. Its capacity to
make a significant contribution to the development of equitable employment standards is
revealed by our recent history - the emerging trade union movement of the 1970s made
effective use of the Wage Board to press its claims for improved working conditions for
black workers. Wage Board hearings became focal points for the growth of trade unions.
The proposals in this section are aimed at revitalising the
institution to play an active role in the development of a coherent policy on employment
standards and to provide a mechanism for sectoral variation where the standards are
inappropriate. The basis for this is laid by the inclusion of a reconstituted Wage Board
in a single statute regulating employment standards. The extension of the Wage Board's
role to the full range of decisions that involve the potential variation of employment
standards will promote the development of an integrated policy. The Board should be able
to advise the Minister on any matter impacting upon employment standards as well as the
impact of standards upon employment creation.
Wage determinations may include minimum wages as well as
conditions of employment. Current wage determinations set minimum wages and repeat with
little variation the provisions of the BCEA. The most significant areas of variation have
been spread-over, annual leave, and in recent wage determinations, a short period of
compassionate leave. The effectiveness of the Board would be increased if determinations
were limited to minimum wages and sector-specific provisions. Where a sector-specific
standard is not considered appropriate the statutory employment standards should continue
to apply to the sector.
The rules regulating the Wage Board's conduct of
investigations and hearings should be sufficiently flexible to permit it to perform its
functions in a manner appropriate to the sector concerned. In sectors where there are
employer and employee organisations, the Wage Board should be able to encourage and assist
the parties to develop sectoral employment standards through conciliation and negotiation.
The determination may then amount to a ratification of a set of standards that have the
support of the parties in the sector - a procedure that is now adopted in respect of
labour Orders made in terms of the Labour Relations Act, 1956. This will contribute to
higher levels of compliance with determinations.
The Wage Board should remain an advisory body. However, the
provisions regulating its relationship with the Minister should be reviewed to ensure that
this process permits a public debate of differences of opinion that the determination of
employment standards. At the conclusion of an investigation, the Wage Board makes a
recommendation to the Minister of Labour on the proposed contents of a determination.
Presently, the Minister may either make a determination in terms of this recommendation or
reject it. Proposals are made to permit an exchange of views between the Minister and the
Wage Board over differences regarding the levels of standards and their economic impact.
[ Top ]
Additional changes are required as a result of the LRA of
1995. Institutional changes are required to conform with the introduction of statutory
councils and the removal of the Labour Order.
The Wage Board can now make recommendations on an extensive
list of conditions of employment. The list will have to be revised in line with the
approach of the new legislation as well as the issues relevant to the protection of
vulnerable employees. The powers of the Wage Board should be extended to include powers
that have been expressly granted to statutory councils in terms of the Labour Relations
Act, such as the establishment of training and education schemes and of social insurance
schemes or funds such as provident and medical aid funds.
These proposals concern the revitalisation of the enabling
structure in terms of which the Wage Board is established and operates. The Green Paper
contains no recommendations in terms of the policies that should guide the Wage Board in
the determination of minimum wage levels. These matters are currently being investigated
by the Comprehensive Labour Market Commission (CLMC) which is investigating the
relationship between national income determination and existing wage determination
Finally, it must be pointed out that the Wage Board is
inappropriately named - its functions are not confined to the setting of wages. It is
proposed that it be renamed the Employment Standards Commission.
The Employment Standards Commission (Wage Board) should
- a chairperson and additional members with experience in the
setting of employment standards;
- sectoral members with experience of particular sectors and
who are appointed to investigate employment standards in a particular sector;
- members appointed by the Minister after consultation with
The primary functions of the Employment Standards
- to investigate employment standards in any sector in which
no bargaining council is established with a view to making recommendations to the
- ratify provisions in collective agreements that vary
employment standards that affect third parties or the public interest;
- advise the Minister on any matter involving the application
of employment standards including any variation or exemption from employment standards.
[ Top ]
A Sectoral Employment Standard (wage determination):
- may contain minimum levels of remuneration for the sector;
- may vary any employment standard contained in the statute in
order to address the specific needs of the sector;
- may not deal with any matter regulated by a bargaining
council agreement or a ministerial determination made on the recommendation of a statutory
- should be reviewed at least every three years.
The Employment Standards Commission must investigate
conditions of employment in any sector if:
- directed to do so by the Minister;
- requested to do so by an organisation representing a
significant number of employers or employees in the sector; or
- it is satisfied that it is necessary for the proper
regulation of conditions of employment in the sector.
The Employment Standards Commission must:
- publicise its investigation;
- invite and consider written and oral representations;
- be able to call meetings of affected parties and encourage
them to reach consensus;
- be able to subpoena the information that it requires to
conduct an investigation and make a recommendation;
- publish a report of its investigations, including
recommendations for a wage determination.
The Minister may publish a wage determination in line with
the recommendations of the Employment Standards Commission.
If the Minister does not concur with the recommendations,
the Minister must given reasons.
The Minister may publish a wage determination after the
Employment Standards Commission has considered and commented on the Minister's reasons.
[ Top ]
- Debate on the reduction of working hours
- Working hours
- Flexibility arrangements
- Sunday work
- Rest Periods
- Working time and health and safety
- Night work
- Shift work
- Paid leave
- Public holidays
- Paid sick leave
Many South Africans work very long hours. Information on
working time is included in the Appendix. The limits on working time are rigid and require
change. The goal of South Africa should be to achieve a 40 hour week for its employees.
This will involve complex and difficult issues. To achieve this goal will require
fundamental agreements between employers, trade unions and the government.
The length and arrangement of working time involves
balancing a number of considerations:
- the economic and technological constraints and requirements
of the economy and the enterprise
- the biological and physical needs of employees
- familial, parental and social needs, constrains and
aspirations of employees, and
- the possible impact upon the health, safety and well-being
of the community.
The legal regulation of working hours requires a thorough
overhaul. The weekly limits on working time are set out in Table II. Internationally the
trend has been, in any review of the regulation of working time, to couple the reduction
in working hours with greater flexibility in working time arrangements.
TABLE II - Ordinary weekly hours of work under the BCEA
|Outside sales personnel
|Shop & office employees (earning above a
certain specified wage)
|Managers and senior personnel (earning above
a specified wage)
[ Top ]
The impetus for this has arisen on the one hand from the
need of workers for better working conditions and for greater choice about their working
lives, and on the other from the need of employers to adjust operating periods in line
with demand in order to meet global competitive pressures. The trade off has included the
introduction of more flexible arrangements such as averaging schemes, flexitime,
compressed work weeks, changes in shift work systems and various patterns of part-time
The introduction of flexible working time in conjunction
with reduced working hours can have a positive outcome for workers' health and safety.
Fatigue and stress associated with long working hours has been shown to contribute to high
levels of ill health. Reduced hours allow increased time for training and education,
family and social responsibilities and leisure time. In some sectors, such as transport,
long hours of work of workers can endanger the safety of the community. The negative
effects of long working hours are exacerbated in a society such as South Africa in which
many workers have to travel long distances to work. Advantages for employers are the
ability to adjust operating capacity to fluctuating demands, the better utilisation of
available resources and improved productivity.
It is proposed that, in line with international trends,
rigidities that have restricted the arrangement of working hours should be removed from
our law. However, equally importantly, employment standards legislation must ensure that
working time is arranged responsibly.
1 DEBATE ON THE REDUCTION OF WORKING HOURS
The demand for shorter working time for individual
employees has been described as "a constant and universal demand". This is
reflected in South Africa's political history - the Freedom Charter records the right of
all South Africans to a 40-hour week. The international significance of the 40-hour week
and the 8-hour day are also reflected in International Labour Organisation (ILO)
Conventions and Recommendations.
The implications of legislated reduced working time on
employment depend on a number of factors. These relate to the structure, level of
development and performance of the economy as a whole and on the particular performance of
individual firms affected by such a measure. The relationship between legislated reduced
working hours and employment is complex and should not be approached simplistically. There
would appear to be general consensus on the social welfare merits of reduced working
hours, even if there is no consensus on the employment effects.
Nevertheless, it is necessary to emphasise that this
measure is not being proposed as an isolated policy, but in the context of other
strategies aimed at employment creation, such as the Growth and Development Strategy
currently being formulated by government and the anticipated recommendations of the
Comprehensive Labour Market Commission. The manner in which any change to working hours is
made must be compatible with employment creation and avoid consequences that may lead to
[ Top ]
A reduction of working hours does not necessarily increase
unit labour costs. The effect on costs will depend on whether or not the reduction of
working time is accompanied by a compensatory wage increase. A compensatory wage increase
may be traded off or accommodated by the phasing in of the reduction over a number of
A legislative reduction in working time has often acted as
a trigger to management to reconsider work organisation or to introduce new and more
efficient patterns of working time. Proponents of a reduction in working hours claim that
the potential gains to enterprises of shorter hours is an increase in productivity. The
linkage between the reduction and productivity has often provided the basis for the
conclusion of agreements between business and labour.
The impact of a reduction of working hours varies between
sectors and between businesses. Factors that account for this variation include:
- skills levels - it may not be possible to increase levels of
productivity in sectors reliant upon high levels of unskilled labour. A shortage of
skilled labour may hinder the capacity to benefit from flexible working arrangements
(until more employees acquire these skills);
- size of the business and methods of organisation of
- the structure of markets and demands for products;
- employee attitudes - low paid workers particularly those who
depend on overtime earnings, may be more reluctant to agree to a reduction of working time
than better paid workers;
- the extent of trade union participation - schemes for the
re-organisation of working time accompanying a reduction in working time have generally
been implemented more successfully if there has been trade union participation in the
It is evident from the above discussion that the
relationship between a policy to reduce working hours over time and its effect on the
economy is complex and the goal of reducing ordinary working hours to 40 hours per week is
not realisable by legislation alone. What is needed is a comprehensive and integrated
approach to the reduction of working hours and the introduction of more flexible working
time arrangements. Any proposal to reduce working hours must:
- be compatible with employment creation and avoid
consequences that may lead to job losses;
- be directed at reducing the actual working time of
- enhance the potential for increased productivity (of labour
- take account of the potential and limitations of specific
sectors and businesses to reduce working hours;
- take account of the possibility of increased costs;
- address the need for employees to be compensated for the
reduction in working hours.
[ Top ]
With this in mind, the following package is proposed. As a
first phase and part of the package, there should be a rationalisation of maximum working
hours from 46 (or 48 for shift workers) to 45. Employees who work excessive hours should
have their maximum ordinary hours reduced from 60 to 48. The rigidities imposed on daily
or weekly time should be made more flexible and the restrictions on Sunday work removed.
The detailed proposals concerning this first phase are dealt with in the next section.
The second and further phases cannot be achieved by
legislation alone. The complex relationship between a reduction in working hours and its
impact upon the economy requires thorough consultation with stakeholders and, if possible,
an agreed national strategy. The elements of such a strategy should include:
- a phased time-table for the reduction of working time;
- a framework agreement on the reduction of working time in
the context of employment creation, productivity, human resources development and wage
- implementation of the framework agreement through sectoral
and plant-level collective agreements;
- investigation by the Employment Standards Commission of
working hours in unorganised sectors;
- special provisions for application to small business;
- technical assistance to social partners in implementing
reduced working hours.
2 WORKING HOURS
2.1 Ordinary working time
The BCEA sets different maximum hours of work for
different categories of employees. The limits on ordinary working time require
reconsideration. (See Table II)
With certain limited exceptions, the new legislation should
set a single set of maximum daily and weekly hours applicable to all employees. Work
performed in excess of these limits would be overtime. This limit should apply to both
"day" workers and shift workers. It is suggested that there is no justification
for a different limit on ordinary hours for shift workers. While the working hours of
shift workers reflect a traditional 6-day week of 8 hour shifts, the practice in many
agreements is to set lower ordinary working hours. This is reflected in the legislation of
many countries. Many shift workers perform night work or other work involving high levels
of fatigue or stress.
Special consideration needs to be given to the position of
security guards. The 60-hour week is not only found in the BCEA but in wage determinations
and many industrial council agreements. This is unacceptable and requires revision.
[ Top ]
The Department proposes that the initial phase of reforming
limits on working hours should be to replace the limit of 46 with 45 as the maximum
permitted ordinary working hours. This is motivated by the Department's desire to reduce
working hours over a period of time and to provide a simpler basis for calculating hours
in the context of proposals to achieve greater flexibility. These changes are implemented
as part of the objective of achieving a 40 hour week.
Two other limits should be set on daily working time. These
are total working time (which includes both ordinary and overtime) and spread-over (which
is the measure of time from the start to the finish of work on a day including intervals).
Maximum spread-over is currently 12 hours (except for farmworkers and domestic workers).
The limit on total working time and on spread-over should
be 12 hours. A lower limitation on total working time should apply to any sectors or
occupations in which there is a high level of risk of accident or disease. The limit on
total working hours in any such sector or occupation is 9 hours unless otherwise provided.
- The maximum weekly hours of work should be reduced to 45
ordinary hours with effect from 1 January 1997.
- The maximum working day should be 9 ordinary hours (8 hours
for employees who work 6 days per week)
- The hours of work of security guards should be reduced to 48
over a period of two years.
- Any adjustment in pay occasioned by the reduction in working
hours must be implemented in terms of the proposed national agreement.
- No employee may work for more than 12 hours in a day.
- No employee may work for more than 9 hours in any work with
a particular exposure to health and safety risks or high levels of physical or mental
stress. The Minister may set a different limit after consulting with the relevant
occupational health and safety authority.
- The maximum spread-over period on any day is 12 hours.
Many South Africans work high levels of overtime.
Overtime rates are relatively low in comparison to other countries. They require
consideration in the light of levels of overtime worked.
[ Top ]
Levels of overtime worked in certain sectors in South
Africa tend to be high. (See Appendix)
The BCEA sets maximum overtime of three hours per day and
ten hours per week; inspectors may authorise the working of extended overtime. This is one
of the most common reasons for applications for exemption. Payment for overtime (including
additional overtime) is at a time and a third. While the statute provides that overtime
work is voluntary, many contracts of employment require employees to agree to work
overtime when requested.
The limit of 10 hours overtime per week should be retained.
However, there should be no daily limit. The amount of overtime that can be worked on any
day will be regulated by the daily total limit on working time. Extended overtime should
be permitted only by exemption.
Many countries set an annual limit for overtime in addition
to the daily and weekly limits. Limits of 150 and 200 hours of overtime annually are
common. This approach seeks to balance the short-term need for overtime with stricter
limits on the regular use of lengthy periods of overtime.
Is the overtime pay regime still appropriate? The first
area for examination is that of overtime payment or compensation. An examination of
overtime systems elsewhere in the world indicates that an overtime rate of
time-and-a-third for all overtime worked is lower than in most countries in the world. Two
options for reform should be considered:
- an increase of the rate of pay for all overtime worked;
- the introduction of a staggered system of overtime pay in
which a higher rate of pay must be paid beyond certain number of hours of overtime worked.
(For example: a premium of one-third for the first five hours of overtime in a week and a
premium of one-half for the next five hours in the week).
There could be more flexible approaches to the compensation
of overtime. Overtime could be exchanged for additional leave or time-off. This approach
again balances the short-term demands with limiting overtime over a longer period.
Employees could work overtime during busy periods and in return gain longer holidays.
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- An employee may agree to work ten hours at overtime rates in
- An individual agreement to work overtime may not be valid
for more than one year.
- All overtime worked must be remunerated at a rate of
- A collective or individual agreement may provide that
employees may receive paid time off in exchange for working overtime.
3 FLEXIBILITY ARRANGEMENTS
The hours of work prescribed by the BCEA restrict the
ability of employers and employees to make certain types of flexible working arrangements.
One facet of the re-organisation of work has been the move
towards the flexible arrangement of working time. Some flexible arrangements can operate
within the limits of the current statutory framework, while the BCEA inhibits others. Two
of these are discussed.
3.1 The compressed working week
The compressed working week permits employees to work
extended hours in order to work the same or a similar number of hours in a shorter number
of days. An employee may, for instance, work a 40-hour week consisting of four ten-hour
The advantages of this system include a larger number of
days off during the week, reduced transport costs, and in some cases better utilisation of
The compressed working week is not applicable to all
sectors. The extended daily hours involved would be subject to any limit placed on total
daily hours for any reason involving the health and safety of employees or the public.
A collective or individual agreement may permit employees
to work up to 12 hours of normal work on any day.
An employee whose hours of work are regulated by such an
agreement may not work on more than 4 days per week.
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3.2 Averaging of working time
Under the BCEA working hours are calculated in one week
cycles. No transfer of hours is permitted from week to week other than in continuous shift
operations, which can utilise three week cycles. "Averaging" permits employers
and employees to calculate average working hours over a cycle of longer than one week.
This allows the distribution of working time in a manner that may coincide better with the
employer's demand for production than an equal spread of hours, between weeks.
Hours of work can be unequally distributed between weeks
provided that the average number of hours worked within the cycle is not greater than a
specified figure. If this figure is lower than the usual limits on weekly hours, this
would offer employees the benefit of reduced working hours. For employers, the more
efficient arrangement of working time generally results in a saving on overtime pay. This
may enable employers to compensate employees for any reduction in working hours.
The new legislation should permit the introduction of
averaging through collective bargaining. It should also place a limit on the weekly
average hours and also limit the period over which averaging can be calculated. It is
suggested that a period of four weeks as a basic rule would permit the operation of most
commonly utilised shift systems and allow sufficient short-term flexibility. A longer
period would require an exemption.
A collective agreement may permit normal working hours to
be calculated over a cycle of longer than one week.
An agreement may not:
- permit an averaging period of longer than 4 weeks;
- permit employees to work an average of more than 40 hours
per week over that period.
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4 SUNDAY WORK
Sunday work is restricted by both the BCEA and the Mines
and Works Act
In terms of the BCEA:
- permission from an inspector is required for Sunday work in
factories or shops;
- there are two basic pay regimes: double pay or
time-and-a-third coupled with a day off in the following week. Employees (other than
farmworkers) working on Sunday must receive at least a full day's wages;
- Sunday work is excluded from the calculation of weekly
- special rules apply to Sunday work in plants that have a
continuous operation exemption.
In terms of the Mines and Works Act essential maintenance
work is allowed on Sundays. Additional work may be permitted by the Minister of Mineral
and Energy Affairs "in the national interest".
The purpose of this legislation should be the protection of
employees, not the restriction of operating time. While the restriction of Sunday work is
not uncommon in the rest of the world, the continuation of these restrictions in South
Africa is not justified. Extended operating times, not only in mines but in other sectors
of the economy, has important employment creation potential. The requirement of permission
to work on a Sunday in factories and shops in the BCEA should be repealed as should the
prohibition on work in mines on a Sunday.
The removal of this prohibition from the mining industry is
being negotiated by employers and trade unions in the industry. The conclusion of an
agreement to give effect to this will boost employment creation and improve wages and is
of great importance.
Sunday work, like night work, can have disruptive social
and family consequences. It therefore remains appropriate to continue to require payment
of premium rates on Sunday. To the greatest extent possible, work on Sundays should
accommodate individual preferences.
The exclusion of Sunday work from the calculation of total
hours (i.e.: ordinary time plus overtime) that can be worked in a week should however be
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Unless agreed to in a collective or individual agreement,
an employee may not work on three successive Sundays.
An employee who works on a Sunday is entitled to the
- payment at double the ordinary rate for time worked; or
- one ordinary day's wage.
If part of a working period falls on a Sunday, all work
during that period must be remunerated at Sunday rates.
Sunday work is included in the calculation of total
permissible working hours.
5 REST PERIODS
Adequate rest periods are an essential aspect of the
scheduling of working time. The new legislation should regulate meal intervals and daily
and weekly rest periods.
5.1 Meal intervals
Under the BCEA, employees are entitled to a one hour break
after five hours continuous work; this may be reduced to 30 minutes by written agreement.
A minimum meal interval of 30 minutes is in line with international practice and should be
retained. Meal intervals of between 30 minutes and 75 minutes are unpaid. This limit
prevents longer meal intervals being used to create split shift working arrangements.
Certain flexibility should be introduced to accommodate employees who do not work full
days. For instance, the entitlement to a meal break should not apply to employees who work
6 hours or less per day.
The requirement that certain employees who work a 12 hour
shift are paid for meal intervals (currently applicable to security guards) should be
extended to all employees who work extended shifts.
Employees must have adequate meal intervals.
Collective and individual agreements may regulate the
taking of meal intervals.
In the absence of an agreement, no employee may work for
longer than five hours without a meal interval of at least 30 minutes. This does not apply
to employees who do not work more than 6 hours.
An employee is entitled to payment for meal intervals if
- is required to remain in control of any machinery, equipment
or vehicle or at the disposal of the employer during the meal interval;
- works for a daily period of longer than 10 hours;
- is required by the employer to take a meal interval of
longer than one and one-quarter hours.
5.2 Daily rest period
The BCEA requires a daily rest period of 12 hours. This is
because the maximum spread-over permitted is 12 hours. Placing a limit on the spread-over
of working time achieves the same purpose as setting a minimum daily rest period. No
proposal is made to depart from this approach.
Employees are entitled to a daily rest period of 12 hours
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5.3 Weekly rest period
The introduction of a 36 hour minimum weekly rest period is
proposed. The rest period must include one complete day. The logic for a 36 hour period is
that it consists of 24 hours plus the daily rest period of 12 hours. The weekly rest
period is an important safeguard in an approach that permits the flexible arrangement of
The requirement for a rest period is not a substantive
change. The reason for the absence of a stipulated rest period was because of the
restrictions on work on Sundays.
The principles of averaging may apply, on a limited basis,
to the weekly rest period. It could be permissible to consolidate rest periods over a 14
Every employee is entitled to a rest period of 36
continuous hours, including one complete day, in every week.
A collective agreement may provide that the rest period may
be averaged over a cycle of up to 14 days.
6 WORKING TIME AND HEALTH AND SAFETY
The manner in which working time is organised impacts
significantly on the health and safety of employees and the public. No legislation
regulates or promotes the organisation of work for this purpose.
The proper scheduling of working time together with factors
such as engineering controls, the ergonomic design of workplaces and improved health and
safety training, can make a major contribution to improving the country's unacceptably
high level of occupational accidents and disease.
The following two examples serve to highlight this point:
Adequate rest-breaks are one of the prime methods of reducing the risk of musculo-skeletal
injuries among employees whose work involves rapid and repetitive movements. These
employees include video display unit operators, assembly line workers and many types of
machinists. The full extent of these injuries in South Africa is not known as adequate
statistics are not collected. In industrialised countries this is the most common
work-related disease. Long hours of work and payment on commission are associated with the
high level of accidents in the taxi industry.
There should be a general duty on employers to take account
of the potential health and safety consequences of the arrangement of working time. This
is already a part of the employer's common law and statutory duties. However, its express
inclusion in employment standards legislation will highlight this important but neglected
aspect of employer obligations.
The general duty should be supplemented by a Code of Good
Practice to guide employers, employees and trade unions. This would set out guidelines for
the considerations that should be taken account of in particular forms of work. The Code
of Good Practice should be published as a schedule to the legislation.
Since the regulation of work at night is perhaps the most
significant health issue raised by the arrangement of working time, additional proposals
[ Top ]
Working time must be arranged so as not to endanger the
health, safety or welfare of the employee, other employees or the community.
This applies to the duration and scheduling of working
time, the rotation of shifts, rest periods, and hours during which an employee works.
A Code of Good Practice on working time should be drafted.
7 NIGHT WORK
Before 1983 night work by women was prohibited. There is
presently no regulation of night work. Night work has been shown to have significant
The reason for the prohibition of night work by women was
the impact of night work on family life. In addition there is extensive evidence to
demonstrate that the night work has adverse health consequences for all employees. The
proposals made here seek to promote a responsible and informed approach to the regulation
of night work to avoid or minimise health risks. International awareness of the problems
associated with night work led to the adoption of the Night Work Convention 171 of 1990.
The most common health risks associated with regular night
- the disruptive effect of night work on the human circadian
- sleep deprivation and disorders;
- chronic fatigue;
- increased risk of digestive disorders and ulcers;
- increased risk of cardiovascular disease;
- increased use of stimulants and sedatives, drugs, cigarettes
- disruption and strain in social and family life.
Certain of these health problems have a direct effect on
safety at work. Increased levels of fatigue among night workers lead to low levels of
alertness and vigilance and a reduced ability to respond to information or signals. This
has been shown to lead to a higher rate of accidents during night shifts. The effect is
greater if the length of night-shifts is extended beyond eight hours or if employees
perform work likely to accentuate fatigue. This has led many countries to place lower
limits on the number of hours that night workers can perform. Rest periods and meal
intervals are of particular importance for night workers. Additional problems faced by
employees performing night work include security and the absence of adequate public
[ Top ]
The arrangement of night work directly affects the public.
Major hazard installations, such as refineries, operate 24 hour shifts and public and
goods transportation services operate at night.
Night work should be defined as work performed between
23h00 and 6h00.
The effective regulation of night work requires a
comprehensive package of proposals. The initial proposal is the introduction of a night
shift allowance. These allowances are commonly required in the legislation of other
countries. The available information indicates that most employers in South Africa making
use of regular night shifts pay a night-shift allowance of between 10 and 33% of basic
wages. It is proposed that the allowance should be equivalent to 20 per cent of an
employee's normal pay.
Other proposals are that employees who regularly perform
more night work should be informed of the possible health hazards and should be entitled
to receive a free health assessment after commencing night work and subsequently. An
employee who suffers from a health condition associated with the performance of night work
should be entitled to be transferred to suitable day-work. Special protection should be
given to pregnant employees engaged in night work.
All employees performing work at night are entitled to
receive a premium of twenty percent for work performed.
An employers who regularly engages employees in night work
must take adequate steps to ensure the health of employees.
Any employee who suffers from a health condition associated
with the performance of night work is entitled to be transferred without loss of benefit,
if reasonably practicable, to suitable day-work.
8 SHIFT WORK
Under the BCEA, special conditions apply to continuous
[ Top ]
As mentioned earlier it is proposed that there should not
be separate limits for shift work. Consideration needs to be given to whether any special
provisions have to be included in the legislation for plants that operate on a continuous
shift basis. These plants operate in terms of rules issued by the Minister of Labour which
vary the application of a number of provisions. These include the calculation of weekly
hours, Sunday pay and meal breaks. The proposed systems of averaging would permit these
plants to agree on appropriate working arrangements.
9 PAID LEAVE
The general leave entitlement of two weeks is below the
practice of most employers and out of line with international standards
Although most South African employees receive three weeks
annual leave or longer, surveys show that approximately five percent of weekly paid
workers receive less than 3 weeks leave. (PE Corporate Services) For higher paid
categories the leave entitlements are more generous. For example, more than 75 per cent of
managers receive more than four weeks annual leave.
In terms of the BCEA, employees are entitled to two weeks'
paid leave per year. Employees like security guards who work a 60 hour week and those
whose hours of work are not restricted have the right to three weeks' leave. Wage
determinations allow for three or four weeks leave. Most industrial councils set the
annual entitlement at between three and four weeks.
International Labour Organisation Convention 132 of 1970
sets an international standard of three weeks (21 days). Most countries guarantee between
two and six weeks annual leave to employees annually with the majority being at three
weeks or higher.
The increase of the minimum entitlement to 3 weeks will
bring South African legislation in line with international standards and local practice.
As this is a widespread practice, it is not likely to have major cost implications for
The legislation of many other countries gives additional
leave to employees with longer service. This can be achieved through collective and
A number of changes should be introduced to simplify the
calculation of leave and remove certain discriminatory provisions from the right to
[ Top ]
Every employee is entitled to three weeks' paid annual
An employee's right to take paid leave accrues at the rate
of one week's leave for every four months' employment.
On termination of employment, an employee is entitled to be
paid for leave that has accrued but not been taken.
An employee is entitled to:
- accumulate leave up to a maximum of six weeks;
- take a reasonable amount of leave as occasional leave .
An employee may not receive payment as an alternative to
taking the prescribed amount of leave.
10 PUBLIC HOLIDAYS
The Public Holidays Act (1994) extends the rules for
remuneration for public holidays in the BCEA to all employees. No provision exists in the
Public Holidays Act for exemptions or for variation by agreement (although public holidays
can be exchanged for other days).
The Public Holidays Act of 1994 introduced a system for the
payment of public holidays that applies equally to all employees. The employment standards
legislation should regulate payment for public holidays for all employees. The Public
Holidays Act should be confined to the proclamation of holidays.
In terms of the BCEA, employees are entitled to normal pay
for public holidays or, if they work, double pay (subject to a minimum payment of one
day's wages) or time-and-a-third plus a day off in the following week. This approach
should be retained except the alternative of time-and-a-third plus a day off on pay should
be omitted because the Public Holidays Act permits the exchange of a public holiday for
[ Top ]
An employee is entitled to be paid for every public
An employee who works on a public holiday is entitled to
the greater of:
- double pay for time worked; or
- one ordinary day's wage.
11 PAID SICK LEAVE
The right to paid sick leave should be retained at
- The BCEA allows for six weeks' sick leave to accrue over a
three year period. In the first year of service, sick leave accrues each month.
- The BCEA permits employers and industrial councils to
operate sick pay schemes that are inferior to the provisions of the BCEA.
- Proof of illness is required for absences of longer than two
days and for repeated absences.
The new legislation should set the floor for sick leave
provisions while allowing for greater flexibility to bargain collectively on the
administration of sick leave. No proposal is made to alter the levels of sick pay.
However, the acquisition of sick-pay in the first year of employment should be less
restrictive. It is proposed that the full rights to accrue sick-leave should occur after
six months' employment.
The issue of proof of sickness is a controversial issue.
These provisions should, on the one hand, prevent the abuse of sick leave provisions by
healthy people. On the other hand, they should not result in employees having to incur
disproportionate expenses or have the effect of denying employees the benefit of sick pay.
Consideration should be given to whether the current approach strikes this balance.
Certain sick pay schemes have been permitted to offer
benefits that are inferior to those provided by the BCEA. This is in particular true of
certain industrial council schemes whose levels of sick pay are below 20% of the
employee's wages. This exclusion should not be allowed to continue and these funds should
be required to comply with the Act within a certain period. However, consideration should
be given to proposals that may permit flexibility in sick pay where employees receive
comprehensive medical benefits.
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Every employee is entitled to six weeks' paid sick leave
over any three year cycle. This is calculated by multiplying the number of days that the
employee works in a week by six.
During the first six months of employment, an employee is
entitled to one day's sick leave for 23 days worked.
- Maternity leave
- Maternity pay
- Right to suitable work
- Adoption benefits
- Paternity and child-care leave
1 MATERNITY LEAVE
The BCEA prohibits pregnant employees from working for
twelve weeks. The only statutory support for women is the Unemployment Insurance Fund.
Only contributors may receive these benefits.
The BCEA prohibits work for four weeks before and eight
weeks after the birth of a child. The mother may not work during this period without an
exemption. This is one of the most common sources of applications for exemptions. The LRA
of 1995 has for the first time provided job security for pregnant women. A dismissal in
relation to pregnancy is automatically unfair.
Legislation should provide two things:
- a period during which work is prohibited;
- a longer period of maternity leave during which an
employee's security of employment is guaranteed.
A total prohibition on work for twelve weeks can be
criticised as many employees may be able to work during this period. It is suggested that
the prohibition on work be shortened to six weeks after the birth of the child. At the
same time, a woman may be able to return to work earlier, depending on the kind of work
she does and her health. However, a relaxation of the prohibition may expose employees to
pressure to return to work prematurely. Therefore, the mother should be required to get a
medical certificate indicating good health to return within the six week period. The other
approach would be to require an exemption which is the current position.
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The proposed legislation should guarantee the employee's
job during maternity leave. A number of factors determine the appropriate length of
maternity. These include the employee's health and the nature of the work performed. It is
suggested that the maximum period for which maternity benefits are available should be
four months. There should be no qualification period to receive protection against
Maternity pay. There is no general right to
maternity pay, although the Unemployment Insurance Act makes limited provision for
maternity benefits. Employees who are contributors to the fund may receive 45% of their
wages for up to six months. More than 60,000 women claim maternity benefits from the Fund
annually. There are a number of restrictions on this benefit:
- domestic workers and employees earning above a certain
amount are excluded;
- an employee receiving the maternity benefit may not be paid
more than one-third of her salary by her employer during this time;
- the Act does not permit the total benefit to be paid over a
These problems restrict the capacity of employers and
employees to make suitable arrangements during maternity leave. Greater flexibility would
help create a more equitable system of maternity pay. The introduction of these reforms
would have financial consequences for the Fund. A Stakeholder's committee is currently
considering the future direction of the Fund, including issues related to maternity
benefits. The level of maternity benefits has been the subject of criticism for a
considerable period of time - the Wiehahn Commission on Labour in 1981 recommended an
increased to 60%.
International employment standards suggest that the
responsibility for maternity pay should rest upon the state and not employers. The most
common solution internationally is for maternity benefits to be paid from social security
funds. However, approximately a third of countries (including a significant number in
Africa) do impose a statutory obligation upon employers in respect of maternity pay.
Maternity pay is a widely granted benefit in South Africa - roughly 60% of permanent
female employees are entitled to. (ILO Country Review, 1996) Consideration needs to be
given to the regulation of maternity pay.
[ Top ]
Right to suitable work. Pregnancy restricts the type
of work that a woman may perform. This also applies to nursing mothers. Undesirable work
includes the lifting of heavy objects or standing for long periods of time and night work.
A pregnant employee who performs work that may place her health at risk should be offered
suitable alternative work on terms of employment that are no less favourable. This should
apply during the period of pregnancy and for a period of three months after the birth of a
Adoption benefits. The Unemployment Insurance Act
allows women who adopt children of under two years of age to take leave equivalent to
maternity leave. Consideration should be given to the period during which the employment
security of an adoptive parent should be guaranteed.
An employee may not work for six weeks after the birth of a
child (unless her doctor certifies that she is fit to return to work).
An employee is entitled to four months' maternity leave
during which her security of employment is protected.
Maternity leave may be taken at any time in the period
starting four weeks before the expected date of birth, or at an earlier date if required
for the employee's health and safety.
A woman employed in night work or in work which may be
harmful to her or her child is entitled to suitable alternative work without loss of
benefit during pregnancy and a year after the birth of her child.
2 PATERNITY AND CHILD-CARE LEAVE
The BCEA does not grant employees paid paternity leave
or child-care leave. Employees are required to take occasional leave (from their annual
quota) or unpaid leave.
Paternity and child-care leave are common demands in
collective bargaining, but have been unsuccessfully regulated through collective
It is proposed that the legislation should provide for a
short period of paid paternity or child-care leave during the year of the birth of a child
and that additional benefits should remain a matter of collective bargaining.
Every employee with more than one year's service is
entitled to three days' paid paternity or child-care leave during the year of the birth of
This leave does not accrue if it is not used in any year.
An employer may require reasonable proof of paternity.
[ Top ]
3 PARENTAL RIGHTS AND FAMILY RESPONSIBILITY
One of the challenges of removing discrimination against
women is to introduce provisions that permit women to continue working careers with the
greater burden of family responsibility that they assume. Two options are:
- permitting women to interrupt their employment to care for
children - "the career break"; and
- permitting women to reduce their working hours in order to
combine parental responsibility with continued work.
The second option should be considered.
- Prohibition on child labour
- Responsible department
Section 30(1)(e) of the Constitution gives children under
18 the right "not to be subject to exploitative labour practices nor to be required
or permitted to perform work which is hazardous or harmful to his or her education, health
Child labour in South Africa is widespread, although the
precise extent is not known. An analysis of the 1994 October Household Survey indicates
that over 200,000 children between 10 and 14 years are engaged in child labour. This
figure is significantly higher than most previous estimates and represents 4% of all
children between those ages. The preliminary research indicates that the four sectors
employing most of the child workers are agriculture (21%), retail and catering (17%),
manufacturing (12%) and social and personal services (7%). Fifty eight percent of child
workers in commercial farming areas work 40 to 49 hours a week and 20% more than 50 hours.
It is internationally recognised that child labour should
be combatted for reasons such as the following:
- children are easily exploited;
- the education of children who work is limited and their
physical and social development is harmed;
- child labour contributes to a higher level of adult
- child labour contributes to a cycle of poverty affecting
Eliminating child labour is a complex matter. Thousands of
families presently facing poverty and unemployment depend on the income of their children.
A comprehensive strategy is required to address the problem of child labour. This strategy
should include compulsory and free basic education (including the necessary infrastructure
such as adequate school facilities within reasonable distance), appropriate social
security and welfare provisions, economic development which would increase earnings of
adults to reduce the need for children to work and programmes to raise public
consciousness about child labour.
The ILO's Minimum Age Convention No. 138 of 1973 requires
that countries who ratify the convention to undertake to "pursue a national policy
designed to ensure the effective abolition of child labour and to progressively raise the
minimum age for admission to employment or work to a level consistent with the fullest
physical and mental development of young persons". (Article 1)
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The Convention also provides that no employer should be
allowed to employ children under the age of 15. This age level is increased if the child
has not completed compulsory schooling. The minimum age for someone "carrying out
work that is likely to jeopardise the health, safety or morals of a young person shall not
be less than 18 years." (Article 3)
This Convention states that the minimum age for light work
(work which is not likely to be harmful to children's health or education) could be
reduced to 12:
- in countries with a low level of economic development and
- after due consultation with employer and worker
- for a limited period. (Article 7 read with Article 2(4))
1 PROHIBITION ON CHILD LABOUR
Existing legislation does not give effect to the
Constitution or to relevant provisions of the ILO's Minimum Age Convention.
The prohibition on child labour by children under 15,
subject to exemptions, should continue. Legislation should also regulate the employment of
children between 15 and 18. This minimum age should be increased, if necessary, to
coincide with provisions on compulsory education.
The wage rate paid to children plays a significant role in
determining the extent of child labour. It is generally accepted that a requirement to pay
children the same wage as adults who do the same work discourages child labour.
Consideration should be given to whether legislation should regulate this topic or whether
it should be left for regulation in Sectoral Employment Standards.
Children below 15 years may not work.
Children below 18 may not perform work which is
inappropriate for that child's age, or which is hazardous or harmful to their health.
2 RESPONSIBLE DEPARTMENT
The BCEA prohibits employment of children under 15
years, but contains no provision for enforcement.
The enforcement clause was removed from the BCEA when a
similar prohibition was included in the Child Care Act in 1991. However, the Department of
Welfare which is responsible for this Act, does not have the resources to enforce the
[ Top ]
The Department of Welfare does not have the necessary
infrastructure or staff to deal effectively with this problem. The administration and
enforcement of child labour prohibition fits more appropriately with the Department of
Child labour should be regulated in the proposed
legislation and the Department of Labour should be primarily responsible for its
The Minister of Labour should be empowered to delegate
inspection and other enforcement responsibilities to officials from other government
The existing provisions empower the Minister of Welfare
to grant exemptions to individual employers or exemptions that are of general application.
General exemptions make monitoring difficult.
South African legislation has traditionally contained a
total prohibition on child labour. However, the widespread occurrence of child labour in
South Africa indicates that these policies have not succeeded. The reason lies both in the
economic dependence of many families on income earned by child workers, and in the weak
enforcement by authorities of the relevant provisions.
Although exemptions can be granted in terms of existing
legislation, very few applications for exemptions have been received. In practice, the
exemption process is ignored and merely serves to conceal the extent of the problem.
The exemption process should offer an opportunity for
government agents to identify, regulate and control users of child labour. Employers of
child workers should be encouraged to identify themselves through the exemption process.
This would facilitate focused inspections. General exemptions are inappropriate since this
makes it difficult for inspectors to monitor whether the conditions for exemptions are
The grant of exemptions would have to comply with relevant
An exemption may only be granted to an individual employer
to employ children between the ages of 12 and 14 to perform work which is not likely to be
harmful to the child's health or education.
[ Top ]
The enforcement of child labour provisions presents
particular difficulties not encountered with other breaches of employment standards. In
most cases, child workers and their parents are unwilling to prosecute or to testify.
The violation of the child labour provisions should remain
a criminal offence. To enable children and their families to prosecute and to testify in
child labour cases, the law should include appropriate procedures, presumptions,
protections and sanctions. The precise nature of these requires consideration.
Contravention should remain a criminal offence, although
these provisions should also be capable of civil enforcement.
The victimisation of parents who refuse to grant permission
for their minor children to work should be prohibited.
Return to Contents
- Notice of termination
- Written particulars of employment
- Certificate of service
Protections for individual employees are found both in
the BCEA and the LRA. Chapter Eight of the Labour Relations Act of 1995 regulates unfair
dismissal. The residual unfair labour practice protects employees against other forms of
unfair labour practice.
[ Top ]
The explanatory memorandum to the Labour Relations Bill,
"Those sections of the Bill regulating individual
employment relations, in particular unfair dismissal and other individual unfair labour
practices, are contained in excisable parts. This will allow for their repeal, without
alteration to the main body of the new Act, and their inclusion into the proposed new laws
regulating basic conditions of employment and employment equity."
The law of unfair dismissal is contained in Chapter VIII of
the LRA, 66 of 1995 and in Schedule VIII to that Act which contains the Code of Good
Practice. In the past, there has been a lack of clarity about the relationship between the
requirements of the BCEA, such as the protections against victimisation, which carry a
criminal sanction and the equity-based considerations of the unfair labour practice. There
is a considerable overlap - many actions may violate the BCEA and be an unfair labour
practice. The concern of unfair dismissal is the individual employment relationship and it
is therefore appropriate that a 'codified ' body of unfair dismissal law should be
situated in a statute regulating individual employment relations rather than one dealing
with collective bargaining. Rationalising the protections applicable to individual
employees into a single statute will create greater clarity.
Similar considerations apply to certain portions of the
residual unfair labour practice in Part B of the Transitional Arrangements (Schedule 7 of
the LRA). (See Annexure 1). Paragraph (a) concerns discrimination against employees and
prospective employees. Issues of discrimination are to be dealt with in the proposed
Employment Equity legislation and these provisions should at an appropriate time be
re-enacted in that law.
The remaining paragraphs of the residual unfair labour
practice concern unfair acts or omissions that arise between an employer and employee
(including an applicant for employment) concerning:
- promotion, demotion or training or relating to the provision
- suspension or other disciplinary action short of dismissal;
- failure or refusal to reinstate a former employee in terms
of an agreement.
It is important that employers and employees can obtain
guidance as to the effect of the unfair labour practice definition. For this reason a Code
of Good Practice should be developed. The LRA 66 of 1995 provides for disputes concerning
the residual unfair labour practice to be referred to the Labour Court. On the other hand
individual disputes that cannot be resolved through mediation will be determined by
arbitration. This approach should be adopted in respect of individual unfair labour
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Chapter Eight of the LRA of 1995 on unfair dismissal should
be included in the proposed new employment standards statute.
The relevant parts of paragraphs (b) - (d) of the
definition of residual unfair labour practice should be incorporated into employment
standards legislation as an individual unfair labour practice.
The legislation should provide for the development of codes
of practice to guide all persons applying the individual unfair labour practice.
Disputes concerning individual unfair labour practices
should be dealt with in the same manner as individual unfair dismissals.
2 NOTICE OF TERMINATION
The notice period for a weekly-paid employee is one
week, while for a monthly paid employee it is two weeks. During the first four weeks of
employment, the notice period is 24 hours .
Farmworkers and domestic workers (other than those who
are weekly-paid) are entitled to one month's notice.
The distinction between weekly-paid and monthly-paid
employees is archaic and no longer appropriate in contemporary labour law.
The same minimum notice period should apply to all
employees regardless of the frequency of their payment. The only exception should be made
in respect of an initial period of employment. The issue is to determine what an
appropriate notice period is.
Factors to consider are:
- statutory notice periods does apply to dismissals for
- the notice period must be adequate to give employees
dismissed for incapacity or operational reasons a reasonable opportunity to seek
- the requirement to give notice applies equally to employers
- the two week provision represents a decrease of the common
law rights of monthly paid employees;
It is proposed that a reasonable period of notice would be
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An employer who terminates must give an employee four weeks
notice of the termination of employment or pay the employee for the period of notice. This
does not apply to:
- a dismissal on account of the employee's conduct;
- a dismissal during the first four weeks of employment during
which one week's notice may be given.
An employee who resigns from employment must give the
employer one month's notice of the termination of employment.
The BCEA and the Wage Act have criminal victimisation
provisions to protect employees who are dismissed or discriminated against for insisting
on their rights in terms of the Acts or for co-operating with an inspector or other
The LRA of 1995 has remodelled the victimisation
provisions as a discrimination provision enforceable through mediation and arbitration
proceedings under the Commission for Conciliation, Mediation and Arbitration (CCMA).
The proposed employment standards legislation should adopt
an approach that is consistent with the LRA of 1995 and should include a discrimination
provision. Those portions of the present victimization section that overlap with the LRA
of 1995 should be removed.
No employer may discriminate against employees for:
- doing anything permitted, or exercising any right conferred,
by this legislation;
- failing or refusing to do anything prohibited by this Act;
- reporting any matter to an official of the Department of
Labour, or to any other person responsible for the enforcement of any employment standard,
or to a trade union representative.
These protections apply to applicants for employment.
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3.2 Protection of wages
Employment standards law regulate the payment of wages
to prevent abuse.
The BCEA (and Wage Act) regulates the method of payment or
remuneration and prohibits practices which may deprive employees of the benefit of their
wages. These include:
- requiring an employee to repay remuneration;
- imposing a fine upon an employee;
- making a deduction from an employee's pay without the
written consent or court authorisation.
Protections of this type must be retained and there is no
basis to depart from the approach of the BCEA.
4 WRITTEN PARTICULARS OF EMPLOYMENT
There is no requirement in labour legislation that
employers supply employees with written particulars of employment.
A written record of the details and particulars of an
employment relationship is an important aspect of monitoring compliance with labour
legislation and enforcing employment standards. Many cases fail because the employee is
unable to prove even the most basic terms. It is therefore proposed that every employee
should be entitled to receive from the employer written particulars of employment. These
particulars should be designed to permit the employee, or a person assisting the employee,
to assess whether the employee's statutory rights have been observed. The employer should
be required to update the particulars regularly. If there are no particulars, the onus
should be on the employer to prove the terms of any contract. The particulars could
- the full names and addresses of the parties to the contract;
- the date upon which employment began;
- a description of the employee's job;
- the employee's wages (or the method of calculating the
employee's wages) and the period of payment;
- overtime pay rates;
- the employee's normal working hours, shifts and days;
- the employee's entitlement to sick-leave and annual leave;
- the period of notice required to terminate the contract of
An employer must supply an employee with prescribed written
particulars of employment within a prescribed period.
The legislation should include a model form.
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5 CERTIFICATE OF SERVICE
Currently, employees are entitled to a certificate of
service on termination of employment. This does not apply to casual employees or employees
who "desert" employment.
On termination of employment, all employees should be
entitled to a certificate of service regardless of the reason for the termination of their
An employee should be entitled to request that the reason
for the termination of his or her employment does not appear on the certificate.
The legislation should include a model certificate of
- Conduct of inspection
- Compliance and enforcement
1 CONDUCT OF INSPECTION
The powers of industrial inspectors are dealt with
separately in labour legislation. The inspectors' powers are confined to the conduct of
Inspectors' powers under all legislation should be
rationalised in the new statute. It would enhance the efficiency and effectiveness of the
Department, since in a single visit an inspector would be able to check compliance with
all labour laws. The new legislation should therefore contain a chapter on labour
inspection This should set out the powers required to conduct inspections relevant to all
legislation administered by the Department of Labour. These powers should include the
right to enter premises without notice, conduct inspections and examinations, question
employers, employees and witnesses, require the production of records and if necessary,
remove the records.
Inspectors should be granted additional powers to empower
them to encourage compliance with minimum standards and to enhance their effectiveness.
These are discussed in the following section.
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The new legislation should contain a chapter consolidating
the powers of labour inspection contained in the different Acts administered by the
Department of Labour.
2 COMPLIANCE AND ENFORCEMENT
The BCEA and Wage Act are enforced through the criminal
courts. This does not encourage compliance with employment standards
Criminal proceedings are not an effective method of
enforcing cases involving employment standards. The criminal courts are overloaded with
other cases and are in general inadequately resourced to deal with labour cases. Labour
cases do not have a high priority within the criminal justice system. This contributes to
long delays, parties not turning up at court and prosecutors dealing inadequately with
cases. It also makes a major impact on the time of inspectors. Even in those cases that
reach a conclusion, the most common outcomes are a warning, a suspended fine or a low
fine. The reliance on criminal proceedings undermine the capacity of the Department of
Labour to encourage compliance with employment standards.
Certificates are required from the Attorney-General or
Director-General to proceed in civil court to enforce statutory conditions of employment.
This is cumbersome and time-consuming and causes an unnecessary duplication of legal
proceedings. Many cases involve both a failure to comply with statutory contractual
provisions, requiring the institution of separate legal proceedings.
The changes made by the LRA of 1995 need to be considered.
Breaches of conditions of employment contained in bargaining council agreements are
enforced through mediation and arbitration rather than the criminal courts.
Total decriminalisation is not appropriate in the proposed
law. Criminal sanctions must be retained for offences such as the illegal employment of
child labour. However, criminal sanctions cannot remain the primary mechanism for breaches
of employment standards.
There must be a range of remedies available to encourage
and enforce compliance with employment standards. The system of enforcement must
contribute to the effective operation of the inspectorate. It is therefore proposed that
the enforcing agency should have a direct role in the imposition of warnings and
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The Commission for Conciliation, Mediation and Arbitration
(CCMA) should become the primary forum for the adjudication of disputes concerning
employment standards. The requirement for conciliation and the informality of arbitration
proceedings and the labour expertise of commissioners make it a more appropriate venue for
the enforcement of claims than the civil or criminal courts.
The current system of enforcement through the criminal
courts has one very significant benefit for employees: the state enforces claims on behalf
of employees. This is of particular importance to employees who are not members of trade
unions. However, the ineffectiveness of criminal prosecutions means that this benefit is
often theoretical. Any revised system of enforcement must allow for State enforcement on
behalf of employees. It is suggested that this should be retained by permitting the
inspectors of the Department of Labour to bring cases on behalf of employees to the CCMA.
A successful enforcement system must ensure employers meet
their administrative obligations - supplying employees with wage slips and maintaining
records. An employee who does not have a wage slip is often not able to prove that he or
she has been underpaid.
In the past many employers who have received State
assistance to establish businesses in decentralised areas have been known to operate their
business in violation of the BCEA and wage determinations. There are still low levels of
compliance with the BCEA in agriculture, a sector in which a high proportion of employers
receive State assistance.
In the long term, the proposals in this chapter should be
supplemented by incentives for employers to adopt appropriate employment standards.
Compliance with employment standards legislation should be a requirement for employers to
obtain state contracts or benefits from state schemes such as financial and technical
assistance to small and medium enterprises, Land Bank loans and export or industrial
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An integrated enforcement system should contain the
following elements -
An inspector may impose an administrative penalties on
employers who fail to keep the prescribed records.
In other offenses, an inspector may issue a 'compliance
notice' to employers who are in violation of any provision of the law. The notice would
- the steps that an employer must take to comply with the law;
- the penalty the employer would be required to pay if the
employer does not comply with the notice.
The penalties imposed would be:
- subject to appeal to the CCMA and, in serious cases, the
- increased in the case of repeated offenses.
Employees should be entitled to institute claims arising
out of a failure to comply with employment standards in the appropriate court.
(Proceedings could be instituted in the Small Claims Court, the CCMA or in the Labour
An inspectorate could institute proceedings arbitration
proceedings before the CCMA on behalf of the employee
Criminal sanction should be retained for:
- serious offenses, including the employment of child labour;
- repeated breaches of employment standards.
Return to Contents
Different labour statutes impose different
administrative obligations upon employers. This burdens employers and the Department of
Labour legislation imposes three different types of
- submission of returns.
Employer's administrative obligations
All employers must register with the Director-General in
terms of the Unemployment Insurance Act (section 28);
m. Compensation Commissioner in terms of the Compensation
for Occupational Injuries and Diseases Act (section 80).
. keep records of hours of work, remuneration and
deductions under the BCEA (Regulation 3), the Wage Act (Regulation 5), the Manpower
Training Act (section 44) and the Unemployment Insurance Act (section 32).
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. submit to the Compensation Commissioner, an annual return
of earnings each March;
m. Unemployment Insurance Commissioner, monthly statements
of employees' earnings, together with contributions (s.30(1)).
Employers who operate factories must obtain a factory
registration certificate from the Regional Director in terms of General Administrative
Regulation under the Occupational Health and Safety Act 85 of 1993.
The record-keeping requirements are inconsistent. For
instance, some records must be kept for three years and others for four years.
Different Acts have different definitions of key terms. For
instance, the UIA employment (section 3) and COIDA (section 63) have different definitions
The duplication of administrative requirements:
- is burdensome for employers and the Department;
- creates uncertainty as to the legal requirements they must
- is extremely difficult for the inspectorate to monitor and
The absence of a single, clear definition of earnings and
the keeping of separate records contribute to serious under-reporting of earnings of
employees. It is estimated that underpayment by employers to the Compensation Fund is in
excess of R200 million. Contributions to the UIF are also reduced (although it is not
possible to estimate the full extent of this).
This under-reporting means that:
- employers who report their earnings fully and accurately
subsidise employers who don't;
- there is less money in the fund;
- the capacity of the funds to improve benefits for employees
- the compensation and unemployment insurance benefits
received by employees are reduced.
The new legislation should introduce a single set of
definitions to rationalise reporting requirements. A single prescribed reporting form
should be introduced and employers should be able to meet all their obligations under
labour legislation by maintaining a single set of records. This will reduce employers'
obligation to maintain records and submit returns significantly. Within this framework,
additional rationalisation to assist small employers could be developed.
In the longer term, the Department should investigate a
co-ordinated approach with the Receiver of Revenue since it is less likely that employers
will understate their wage bill for tax purposes. This will also achieve greater
administrative efficiency in collecting a contribution to these funds.
The new legislation should include definitions of terms
commonly used in all labour legislation.
There would be a single prescribed form to allow employers
to comply with most of the key obligations under legislation administered by the
Department of Labour.
The legislation should prescribe:
- the records that employers must keep on hours of work,
remuneration and other conditions;
- information that must be contained in wage slips.
A simple computer software programme could be developed to
enable employers to record information and calculate payments in the manner set out in the
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