BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

Note: This Act includes amendments contained in the Basic Conditions of Employment Amendment Act, 2012.

To give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment; and thereby to comply with the obligations of the Republic as a member state of the International Labour Organisation; and to provide for matters connected therewith.

CHAPTER ONE
DEFINITIONS, PURPOSE AND APPLICATION OF THIS ACT (ss 1-5)



 
1.   Definitions
In this Act, unless the context indicates otherwise-

'agreement' includes a collective agreement;

'area' includes any number of areas, whether or not contiguous;

'bargaining council' means a bargaining council registered in terms of the Labour Relations Act, 1995, and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act;

'basic condition of employment' means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment;

'CCMA' means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995;

'child' means a person who is under 18 years of age;

'code of good practice' means a code of good practice issued by the Minister in terms of section 87 of this Act;

'collective agreement'means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-

  1. one or more employers;
  2. one or more registered employers' organisations; or
  3. one or more employers and one or more registered employers' organisation;
'Commission' means the Employment Conditions Commission established by section 59 (1);

'compliance order' means a compliance order issued by a labour inspector in terms of section 69 (1);

'Constitution' means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996);

'council' includes a bargaining council and a statutory council;

'Department' means the Department of Labour;

'Director-General' means the Director-General of Labour;

'dispute' includes an alleged dispute;

'domestic worker' means an employee who performs domestic work in the home of his or her employer and includes-

  1. a gardener;
  2. a person employed by a household as driver of a motor vehicle; and
  3. a person who takes care of children, the aged, the sick, the frail or the disabled,
but does not include a farm worker;

'employee' means-

  1. any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
  2. any other person who in any manner assists in carrying on or conducting the business of an employer,
and 'employed' and 'employment' have a corresponding meaning;

'employers' organisation' means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions;

'employment law' includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts:

  1. The Unemployment Insurance Act, 1966 (Act 30 of 1966);
  2. the Skills Development Act, 1998 (Act 97 of 1998);
  3. the Employment Equity Act, 1998 (Act 55 of 1998);
  4. the Occupational Health and Safety Act, 1993 (Act 85 of 1993);
  5. the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993);
'farm worker' means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work in a home on a farm;

'Labour Appeal Court' means the Labour Appeal Court established by section 167 of the Labour Relations Act, 1995;

'Labour Court' means the Labour Court established by section 151 of the Labour Relations Act, 1995;

'labour inspector' means a labour inspector appointed under section 63, and includes any person designated by the Minister under that section to perform any function of a labour inspector;

'Labour Relations Act, 1995' means the Labour Relations Act, 1995 (Act 66 of 1995);

'medical practitioner' means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974);

'midwife' means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act 50 of 1978);

'Minister' means the Minister of Labour;

'month' means a calendar month;

'NEDLAC' means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act 35 of 1994);

'ordinary hours of work' means the hours of work permitted in terms of section 9 or in terms of any agreement in terms of sections 11 or 12;

'overtime' means the time that an employee works during a day or a week in excess of ordinary hours of work;

'prescribe' means to prescribe by regulation and 'prescribed' has a corresponding meaning;

'public holiday' means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act 36 of 1994);

public service' means the public service referred to in section 1 (1) of the Public Service Act, 1994 (Proclamation 103 of 1994), and includes any organisational component contemplated in section 7 (4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding-

  1. the members of the National Defence Force;
  2. the National Intelligence Agency;
  3. the South African Secret Service;
  4. the South African National Academy of Intelligence;
  5. Comsec.
'registered employers' organisation' means an employers' organisation registered under section 96 of the Labour Relations Act, 1995;

'registered trade union' means a trade union registered under section 96 of the Labour Relations Act, 1995;

'remuneration' means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and 'remunerate' has a corresponding meaning;

'sector' means an industry or a service or part of an industry or a service and, in respect of a sectoral determination made in terms of section 55(8), means the employers and employees covered by that determination;

'sectoral determination' means a sectoral determination made under Chapter Eight;

'senior managerial employee' means an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally;

'serve' means to send by electronic mail, registered post, telegram, telefax or deliver by hand or any prescribed method of service;

'statutory council' means a council established under Part E of Chapter III of the Labour Relations Act, 1995;

'temporary employment service' means any person who, for reward, procures for, or provides to, a client, other persons-

  1. who render services to, or perform work for, the client; and
  2. who are remunerated by the temporary employment service;
'this Act' includes the Schedules and any regulation made under this Act, but does not include the headings or footnotes;

'trade union' means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' organisations;

'trade union official' includes an official of a federation of trade unions;

'trade union representative' means a trade union representative who is entitled to exercise the rights contemplated in section 14 of the Labour Relations Act, 1995;

'wage' means the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week;

'week' in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls;

'workplace' means any place where employees work;

'workplace forum' means a workplace forum established under Chapter V of the Labour Relations Act, 1995.

 

2.   Purpose of this Act
The purpose of this Act is to advance economic development and social justice by fulfilling the primary objects of this Act which are-

  1. to give effect to and regulate the right to fair labour practices conferred by section 23 (1) of the Constitution-
    1. by establishing and enforcing basic conditions of employment; and
    2. by regulating the variation of basic conditions of employment;
  2. to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation.
 
3.   Application of this Act
  1. This Act applies to all employees and employers except-
    1. members of the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence;
    2. unpaid volunteers working for an organisation serving a charitable purpose;
    3. the directors and staff of Comsec.
  2. This Act applies to persons undergoing vocational training except to the extent that any term or condition of their employment is regulated by the provisions of any other law.
  3. This Act, except section 41, does not apply to persons employed on vessels at sea in respect of which the Merchant Shipping Act, 1951 (Act 57 of 1951), applies except to the extent provided for in a sectoral determination.
 
4.   Inclusion of provisions in contracts of employment
A basic condition of employment constitutes a term of any contract of employment except to the extent that-

  1. any other law provides a term that is more favourable to the employee;
  2. the basic condition of employment has been replaced, varied, or excluded in accordance with the provisions of this Act; or
  3. a term of the contract of employment is more favourable to the employee than the basic condition of employment.
 
5.   This Act not affected by agreements
This Act or anything done under it takes precedence over any agreement, whether entered into before or after the commencement of this Act.