IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS

Basic Conditions of Employment Act, Act 75 of 1997

INDEX
ACT ................................................................................................................................................................................................................................................................... 2
7. REGULATION OF WORKING TIME............................................................................................................................................................................................................. 2
9. ORDINARY HOURS OF WORK ................................................................................................................................................................................................................... 2
10. OVERTIME.................................................................................................................................................................................................................................................. 2
15. DAILY AND WEEKLY REST PERIOD ........................................................................................................................................................................................................ 3
17. NIGHT WORK ............................................................................................................................................................................................................................................. 3
24. APPLICATION TO OCCUPATIONAL ACCIDENTS OR DISEASES ......................................................................................................................................................... 4
25. MATERNITY LEAVE ................................................................................................................................................................................................................................... 4
26. PROTECTION OF EMPLOYEES BEFORE AND AFTER BIRTH OF A CHILD ......................................................................................................................................... 4
30. INFORMING EMPLOYEES OF THEIR RIGHTS ........................................................................................................................................................................................ 5
43. PROHIBITION OF EMPLOYMENT OF CHILDREN ................................................................................................................................................................................... 5
46. PROHIBITIONS........................................................................................................................................................................................................................................... 5
49. VARIATION BY AGREEMENT ................................................................................................................................................................................................................... 6
82. TEMPORARY EMPLOYMENT SERVICES ................................................................................................................................................................................................ 6
83A. PRESUMPTION AS TO WHO IS AN EMPLOYEE .................................................................................................................................................................................. 6
90. CONFIDENTIALITY .................................................................................................................................................................................................................................... 6
SCHEDULE TWO TABLE 1 ............................................................................................................................................................................................................................. 7

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 IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS
Basic Conditions of Employment Act, Act 75 of 1997

ACT

Section LEGAL COMPLIANCE REQUIREMENTS COMMENTS / NOTES

7. REGULATION OF WORKING TIME

7 Regulate the working time of employees: Ensure that overtime is not excessive as
1) in accordance with any Act governing occupational health and safety; this could lead to fatigue, leading to
2) with due regard to the health and safety of employees; human error, which is the major direct
3) with due regard to the Code of Good Practice on the Regulation of Working Time; cause of workplace accidents.
4) with due regard to the family responsibilities of employees. Ensure that employees have adequate
time off work.
Working hours need to be pro-actively
managed, for example managers should
personally approve overtime in excess of
10 hours per week before that limit is
exceeded.
9. ORDINARY HOURS OF WORK

9 1) Don’t require or permit employees to work more than: Ensure that shift systems, pay and
a) 45 hours per week; overtime regulation is done in accordance
b) 9 hours per day for a five-day week; with the prescribed hours. If a ministerial
c) 8 hours per day for a longer week. exemption or bargaining council variation
2) This does not apply to: is available, ensure that excessive
a) Senior managerial employees; overtime is not posing health and safety
b) Sales staff travelling to customer premises and who determine their own working hours; risks.
c) Employees who work less than 24 hours a month; Even though certain persons are
d) Unforeseeable work that needs to be done without delay; exempted from this provision, their
e) Employees earning more than R 205 433.30 per annum. working time must still be regulated with
due regard to their health and safety.
Use corporate HR fatigue management
procedures in this regard.
10. OVERTIME

10(1) 1) Don’t require or permit an employee to work overtime unless it is by agreement. As above.
a) A maximum of 10 hours per week overtime is allowed.
b) No employee may work more than 12 hours a day.

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 IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS
Basic Conditions of Employment Act, Act 75 of 1997

Section LEGAL COMPLIANCE REQUIREMENTS COMMENTS / NOTES

2) This does not apply to:

a) Senior managerial employees;
b) Sales staff travelling to customer premises and who determine their own working hours;
c) Employees who work less than 24 hours a month;
d) Unforeseeable work that needs to be done without delay;
e) Employees earning more than R 205 433.30 per annum.

15. DAILY AND WEEKLY REST PERIOD

15 1) Allow employees: Ensure that working arrangements allow

a) a daily rest period of at least 12 consecutive hours between ending and recommencing work; and for the daily and weekly rest periods as
b) a weekly rest period of at least 36 consecutive hours (must include Sunday unless otherwise agreed). prescribed.
2) This does not apply to:
a) Senior managerial employees;
b) Sales staff travelling to customer premises and who determine their own working hours;
c) Employees who work less than 24 hours a month;
d) Unforeseeable work that needs to be done without delay;
e) Employees earning more than R 205 433.30 per annum.

17. NIGHT WORK

17(2) 1) Don’t require or permit employees to perform night work unless: “Night work” means work between 18:00
a) it is by agreement; and 06:00.
b) the employee is compensated (e.g. shift allowance) or working hours are reduced;
c) transportation is available between the employee’s residence and workplace before and after shifts. Employment contracts or collective
2) This does not apply to: agreements should state that night work
a) Senior managerial employees; will be done.
b) Sales staff travelling to customer premises and who determine their own working hours; Although the employer does not have to
c) Employees who work less than 24 hours a month; provide the transport, the employer must
d) Unforeseeable work that needs to be done without delay; ensure that transport such as public
e) Employees earning more than R 205 433.30 per annum. transport (taxis and buses) are operating
in the area at the times when start or end
work.

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 IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS
Basic Conditions of Employment Act, Act 75 of 1997

Section LEGAL COMPLIANCE REQUIREMENTS COMMENTS / NOTES

17(3) 1) If employees work at least 5 times per month or 50 times per year between 23:00 and 06:00: The requirement to inform persons of their
a) Inform the employee in writing, or orally if the employee cannot read, in a language that the employee right to a medical examination can be
understands of the health and safety hazards associated with the work and of his/her right to a covered in:
medical examination;  Their employment contracts;
b) At the employer’s cost, and on request of an employee, enable that employee to undergo a medical  Induction training;
examination before the employee starts the work (or within a reasonable time) and at appropriate  Night work training.
intervals thereafter concerning those hazards; The medical surveillance done on
c) Transfer the employee to suitable day work within a reasonable time if the employee suffers from a employees, or the man-job specification,
health condition associated with the performance of night work, if it is practicable. should indicate that night work has been
2) This does not apply to: considered in the medical examination.
a) Senior managerial employees; This should ideally be reflected on a
b) Sales staff travelling to customer premises and who determine their own working hours; medical certificate of fitness.
c) Employees who work less than 24 hours a month;
d) Unforeseeable work that needs to be done without delay;
e) Employees earning more than R 205 433.30 per annum.

24. APPLICATION TO OCCUPATIONAL ACCIDENTS OR DISEASES

24 The provisions in the Act dealing with sick leave and proof of incapacity do not apply to an inability to work The HR and payroll system should allow
caused by an accident or occupational disease as defined in the COID Act, except in respect of any period for absence due to occupational injuries
during which no compensation is payable in terms of the COID Act. and diseases so that such time is not
clocked against other leave classes such
as annual leave and sick leave.
25. MATERNITY LEAVE

25 1) An employee is entitled to at least 4 consecutive months’ maternity leave and may take it any time from 4 The HR and payroll system should
weeks of expected delivery date or from a date specified by a medical practitioner or midwife. provide for maternity leave
2) An employee may not work for six weeks after giving birth, unless certified fit by a medical practitioner or
midwife.

26. PROTECTION OF EMPLOYEES BEFORE AND AFTER BIRTH OF A CHILD

26 1) No employer may require or permit a pregnant or breast-feeding employee to perform work that is A risk assessment should be done when
hazardous to her health or the health of her child. an employee reports a pregnancy to the
employer. Appropriate actions should be

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 IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS
Basic Conditions of Employment Act, Act 75 of 1997

Section LEGAL COMPLIANCE REQUIREMENTS COMMENTS / NOTES

2) During pregnancy and six months after giving birth, an employer must (if practicable) offer an employee taken to protect the employee following
who is doing night work or hazardous work alternative employment at terms and conditions that are not the risk assessment, which may include
less favourable. temporarily transferring the employee to a
different position.

See BCEA: Pregnancy Risk Assessment

Form (SD) document.
30. INFORMING EMPLOYEES OF THEIR RIGHTS

30 Display at the workplace where it can be read by employees a statement in the prescribed form of the See BCEA 1A: Summary to be kept by an
employee’s rights under this Act in the official languages that are spoken in the workplace. Employer (SD) document.
(Official languages in terms of the General Administrative Regulations).
Display the BCEA posters, which can be
obtained from various service providers,
in the workplace.
43. PROHIBITION OF EMPLOYMENT OF CHILDREN

43(1) & 1) A person must not require or permit a child to work (subject to par 2), if the child: “Child” means someone under 18 years
(2) a) Is under 15 years of age; or old.
b) Is under the minimum school-leaving age in terms of any law.
2) A person must not require or permit a child to perform any work or provide any services: Maximum prison sentence is 6 years.
a) That are inappropriate for a person of that age;
b) That place at risk the child’s well-being, education, physical or mental health, or spiritual, moral or HR and recruitment practices should
social development. ensure that no persons under 15 are
employed. If a person under 18 is
employed, do a risk assessment to ensure
the child is adequately protected.
46. PROHIBITIONS

46 Do not: As above.
1) assist any person to require or permit a child to work in contravention of this Act; or Maximum prison sentence is 6 years.
2) discriminate against a person who refuses to permit a child to work in contravention of this Act.

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 IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS
Basic Conditions of Employment Act, Act 75 of 1997

Section LEGAL COMPLIANCE REQUIREMENTS COMMENTS / NOTES

49. VARIATION BY AGREEMENT

49 Collective agreements may not: Ensure that collective agreements do not

1) reduce the protection afforded by sections 7 and 9 and related regulations; allow for excessive overtime or diminishes
2) reduce the protection regarding night work; employee rights regarding night work,
3) reduce entitlement to maternity and sick leave. maternity and sick leave.

82. TEMPORARY EMPLOYMENT SERVICES

82 The client and the temporary employment service (such as a labour broker) are jointly and severally liable if If using a labour broker, ensure that the
the temporary employment service does not comply with this Act. labour broker’s employment practices are
in line with the legal requirements. This
should also be set as a contractual
condition with the labour broker.
83A. PRESUMPTION AS TO WHO IS AN EMPLOYEE

83A If any one or more of the following factors are present, a person working or rendering service is presumed to This does not apply to persons earning
be an employee: more than R 205 433.30 per annum.
1) The manner in which the person works is subject to the control or direction of another person;
2) The person’s hours of work are subject to the control or direction of another person; HR and employment practices should
3) In the case of a person working for an organisation, the person is a part of that organisation; take these factors into consideration, and
4) The person has worked for that other person for an average of at least 40 hours per month over the last not treat someone as an independent
three months; contractor if that person should actually
5) The person is economically dependent on the other person for whom that person works or renders be treated as an employee.
services;
6) The person is provided with tools of trade or work equipment by the other person;
7) The person only works for or renders services to one person.

90. CONFIDENTIALITY

90 The record of any medical examination performed in terms of this Act must be kept confidential and may only Maximum prison sentence is 1 year.
be made available:
1) according to the ethics of medical practice; Workplace clinics and HR departments
2) if required by law, or court order; or should ensure that personal employee
3) if the employee has in writing consented to the release of that information.

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 IWC, TEKTOWER, CWC, PFC ENGINEERING, WEC PROJECTS, KHANYA PROJECTS
Basic Conditions of Employment Act, Act 75 of 1997

Section LEGAL COMPLIANCE REQUIREMENTS COMMENTS / NOTES

records are properly secured and not

unlawfully disclosed.

SCHEDULE TWO TABLE 1

TABLE ONE: MAXIMUM PERMISSIBLE FINE NOT INVOLVING AN UNDERPAYMENT

Failure to comply Maximum Fine

No previous failure to comply R300 per employee in respect of whom the failure to
comply occurs

A previous failure to comply in respect of the same R600 per employee in respect of whom the failure to
provision comply occurs

A previous failure to comply within the previous 12 months R900 per employee in respect of whom the failure to
or two previous failures to comply in respect of the same comply occurs
provision within three years

Three previous failures to comply in respect of the same R1 200 per employee in respect of whom the failure to
provision within three years comply occurs

Four previous failures to comply in respect of the same R1 500 per employee in respect of whom the failure to
provision within three years comply occurs

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