The Basic Conditions of Employment Act should be the bible of all employers in South Africa - fall foul of it at your peril. The Act is weighted in favour of employees because it is believed that employers hold the power by virtue of them paying the wages.
And if you think it is safer (for you) to simply avoid creating an employment contract at all, think again. A contract does not always have to be in writing: if you talk to your employee about the terms of their employment it is considered a verbal contract and is legally binding and enforceable. So putting it all in writing will avoid disputes later and could make your life a whole lot easier.
Scope of the act and who it applies to
It is not just full-time employees who should be given a contract; the same goes for part-time, fixed term, contract and temporary workers. In fact, except for employees working less than 24 hours a month and employers who employ less than five people, employers should give all employees certain details about their position in writing:
- The job description
- Hours of work
- Normal and overtime rates
- Deductions to be made
- Start (and end, if applicable) date of employment
- Notice period
- Name and address of the employer
- Wage or salary, and any other payments, be it cash or in kind
- Date that salaries or day that wages are to be paid.
If you do not provide a suitable contract, or fail to meet the terms of the contract, you could quickly find that a disgruntled employee has you up in front of the CCMA - and you could go to prison or be liable for a hefty fine.
What you need to know about the Act
- Workers are not allowed to work more than 45 hours a week or nine hours a day.
- Employees cannot be forced to work overtime, and by agreement for no more than ten hours a week.
- Overtime must be paid at 1,5 times the normal wage.
- Employees must have a meal break of one hour after five hours of work.
- Employees must have a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours.
- Employees who work occasionally on Sunday must be paid double, and those who normally work on a Sunday must be paid 1,5 times the normal wage. Employees cannot be forced to work on a public holiday, and must be paid double if they agree to.
- Employees are entitled to 21 consecutive days' annual leave or, by agreement, one day for every 17 days worked.
- Employees cannot receive money instead of holidays, except when they leave the company.
- Employees are entitled to six weeks' paid sick leave in a 36-month period.
- Pregnant employees are entitled to four consecutive months of maternity leave, although they do not have to be paid during this time.
- Full-time employees are entitled to three days of paid family responsibility leave per year, but an employer can ask for reasonable proof of the circumstances.
The Act is an in depth and detailed document that is not for the faint-hearted, but these are the general topics it covers: