Basic Conditions of Employment Amendment Act
This section amends the definition of “employment law” in the principal Act.
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- South Africa
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- Act or statute
- Citation
- Act 11 of 2002
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- en
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Citation provenance: source:za:government-acts · schema StatuteEnrichmentPublicV1.
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Statute overview
About this statute
This section amends the definition of “employment law” in the principal Act. This section states that section 8 of the Act is substituted. This section replaces section 8 of the principal Act with new text. For sections 9 to 16, “day” means 24 hours counted from when the employee normally starts work; “daily” has the same meaning. Employers may not require or allow overtime except under an agreement, and overtime is capped at 3 hours a day and 10 hours a week unless a collective agreement changes the weekly limit within the stated limits.
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Provisions of Basic Conditions of Employment Amendment Act
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- 1 Verify source ↗
Section 1 of the Basic Conditions of Employment Act, 1997 (hereinafter referred to
AI-assisted research summary: This section amends the definition of “employment law” in the principal Act.
1. Section 1 of the Basic Conditions of Employment Act, 1997 (hereinafter referred to as the principal Act), is amended by the substitution for the definition of “employment law” of the following definition: 5 “ ‘employment law’ includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts: ( a ) The Unemployment Insurance Act, 1966 (Act No. ( 0 ) [the Manpower Training Act, 30 of 1966); 1981 (Act No. 56 of 19Sl)l the Skills k; I O ( c ) [the Guidance and Placement Act, Employment Equity Act, 1998 (Act No. 55 of 1998); 1981 (Act No. 62 of 198l)l the ( d ) the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); ( e ) the Compensation for Occupational Injuries and Diseases Act, I993 (Act No. 15 130 of 1993);”.Referenced legislation
- Basic Conditions of Employment Act, 1997 (unresolved)
- 4 Verify source ↗
No. 23539
AI-assisted research summary: This section states that section 8 of the Act is substituted.
4 No. 23539 JUNE GOVERNMENT GAZETTE. 24 ~ _ _ _ _ _ 2002 Act No. 11,2002 BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, 2002 Substitution of section 8 of Act 75 of 1997 - 2 Verify source ↗
The following section is substituted for section 8 of the principal Act:
AI-assisted research summary: This section replaces section 8 of the principal Act with new text.
2. The following section is substituted for section 8 of the principal Act: “Interpretation of day - 8 Verify source ↗
For the purposes of sections 9 [, 10 and ll,] - to 16, ‘day’ means a
AI-assisted research summary: For sections 9 to 16, “day” means 24 hours counted from when the employee normally starts work; “daily” has the same meaning.
8. For the purposes of sections 9 [, 10 and ll,] - to 16, ‘day’ means a period of 24 hours measured from the time when the employee normally commences work, and ‘daily’ has a corresponding meaning.”. 5 Amendment of section 10 of Act 75 of 1997 - 3 Verify source ↗
Section 10 of the principal Act is amended by-
AI-assisted research summary: Employers may not require or allow overtime except under an agreement, and overtime is capped at 3 hours a day and 10 hours a week unless a collective agreement changes the weekly limit within the stated limits.
3. Section 10 of the principal Act is amended by- the substitution for-subsection (1) of the- following subsection: “(1) Subject to this Chapter, an employer may not require or permit an 10 employee to work- (a) overtime except in accordance with an agreement; (b) more than [- (i) (ii)] three hours’ overtime a day; or ten hours’ overtime a week.”; 15 the insertion after subsection (1) of the following subsection: . , ” “( 1 A) An agreement in terms of subsection ( 1 ) may not require or permit an employee to work more than 12 hours on any day.”; and the addition of the following subsection: “(6) ( a ) A collective agreement may increase the maximum permitted 20 overtime to 15 hours a week. ~~~~~ (b) A collective agreement contemplated in paragraph ( a ) may not apply for more than two months in any period of 12 months.”. Amendment of section 27 of Act 75 of 1997 - 4 Verify source ↗
Section 27 of the principal Act is amended by the substitution for subsection (5) of
AI-assisted research summary: An employer may require reasonable proof before paying an employee for leave under this section.
4. Section 27 of the principal Act is amended by the substitution for subsection (5) of 25 the following subsection: “ ( 5 ) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection [1](2) for which the leave was required.”. Amendment of section 28 of Act 75 of 1997 30 - 5 Verify source ↗
Section 28 of the principal Act is amended by the deletion of subsection (2)(b).
AI-assisted research summary: This section amends the principal Act by deleting section 28(2)(b) and inserting section 34A into Act 75 of 1997.
5. Section 28 of the principal Act is amended by the deletion of subsection (2)(b). Insertion of section 34A in Act 75 of 1997 - 6 Verify source ↗
The following section is inserted after section 34 of the principal Act:
AI-assisted research summary: Employers must pay benefit fund deductions and required employer contributions to the fund within seven days, unless the fund rules require an even shorter period.
6. The following section is inserted after section 34 of the principal Act: “Payment of contributions to benefit funds 34A. (1) For the purposes of this section, a benefit fund is a pension. 35 provident, retirement, medical aid or similar fund. ( 2 ) An employer that deducts from an employee’s amount for payment within seven days of the deduction being made. to a benefit fund must pay the amount to remuneration any the fund (3) Any contribution that an employer is required to make to a benefit fund on behalf of an employee, that is not deducted from the employee’s remuneration, must be paid to the fund within seven days of the end of the period in respect of which the payment is made. (4) This section does not affect any obligation on an employer in terms of the rules of a benefit fund to make any payment within a shorter period than that required by subsections (2) or (3).”. 40 45 GOVERNMENT 23539 6 No. GAZETTE, 24 JUNE 2002 Act No. 11,2002 BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, 2002 Amendment of section 35 of Act 75 of 1997 - 7 Verify source ↗
Section 35 of the principal Act is amended by the substitution for subsection ( 5 ) of
AI-assisted research summary: The Minister may decide how certain payments count as employee remuneration, and must first consult, publish a draft notice, and invite written comments.
7. Section 35 of the principal Act is amended by the substitution for subsection ( 5 ) of the following subsection: “(5) ( a ) The Minister may, by notice in the Gazette, after consultation with the Commission and NEDLAC, determine whether a particular category of payment, whether in money or in kind, forms part of an employee’s remuneration for the purpose of any calculation made in terms of this Act. (b) Without limiting the Minister’s powers in terms of paragraph ( a ) , the Minister may- (i) determine the value, or a formula for determining the value, of any payment that forms part of remuneration; (ii) place a maximum or minimum value on any payment that forms part of remuneration; and (iii) for the purposes of any calculation, differentiate between different categories of payment and different sectors, (c) Before the Minister issues a notice in terms of paragraph (a), the Minister must- (i) publish a draft of the proposed notice in the Gazette; and (ii) invite interested parties to submit written representations on the draft notice within a reasonable period.”. 5 10 15 20 Amendment of section 37 of Act 75 of 1997 - 8 Verify source ↗
Section 37 of the principal Act is amended by the substitution for subsection (1) of
AI-assisted research summary: Employment contracts that can be ended by either party must be ended on at least the notice period set by employment length, with a limited collective-agreement exception.
8. Section 37 of the principal Act is amended by the substitution for subsection (1) of the following subsection: “( 1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than- ( a ) one week, if the employee has been employed for [four weeks] six months or 25 less; (b) two weeks, if the employee has been employed for more than [four weeks] six months but not more than one year; ( c ) four weeks, if the employee- (i) has been employed for one year or more; or (ii) is a farm worker or domestic worker who has been employed for more than [four weeks] six months. required by subsection (1). (2) (a) A collective agreement may not permit a notice period shorter than that jb) Despite paragraph (a), a collective agreement may permit the notice period of four weeks required by subsection (l)(c)(i) to be reduced to not less than two weeks.”. Amendment of section 41 of Act 75 of 1997 - 9 Verify source ↗
Section 41 of the principal Act is amended by the substitution for subsection ( 2 ) of
AI-assisted research summary: An employer must pay severance pay to an employee in the specified dismissal or insolvency-termination cases.
9. Section 41 of the principal Act is amended by the substitution for subsection ( 2 ) of the following subsection: “ ( 2 ) An employer must pay an employee who is dismissed for reasons based on the employer’s operational requirements or whose contract of employment terminates or is terminated in terms of section 38 of the Insolvency Act. 1936 (Act No. 24 of 19361, severance pay equal to at least one week’s remuneration for each completed year of continuous service with that employer, calculated in accordance with section 35.”. Amendment of section 50 of Act 75 of 1997Referenced legislation
- Insolvency Act. 1936 (Act No. 24 of 19361 (unresolved)
- 10 Verify source ↗
Section 50 of the principal Act is amended by-
AI-assisted research summary: This section limits when a determination under subsection (1) may be made, including strict limits on child employment and on determinations for section 9.
10. Section 50 of the principal Act is amended by- ( a ) the substitution for subsection (2) of the following subsection: 30 35 40 45 50 “(2) A determination in terms of [section] subsection (1)- ( a ) may not be made in respect of sections 7 , [9,] 17(3) and (4), 3. 43(2), 44 or 48 or a regulation made in terms of section 13; and 8 No. 23539 Act No. 11, 2002 GAZETIE. GOVERNMENT 24 JUNE 2002 BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, 2002 ( b ) may only be made to allow the employment of children in the performance of advertising, sports, artistic or cultural activities.”; and (6) the insertion after subsection (2) of the following subsection: in respect of section 43(1) “(2A) A determination in terms of subsection ( 1 ) may only be made in respect of section 9 if- ( a ) the employees’ ordinary hours of work, rest periods and annual leave are on the whole more favourable to the employees than the basic conditions of employment in terms of sections 9, 10, 14, 15 and 20; and (b) the determination- 5 10 (i) has been agreed to in a collective agreement; (ii) is necessitated by the operational circumstances of the sector in respect of which the variation is sought and the majority of employees in the sector are not members of a registered trade 15 union; or Amendment of section 55 of Act 75 of 1997 - 11 Verify source ↗
Section 55 of the principal Act is amended by the substitution for subsection (6) 20
AI-assisted research summary: A sectoral determination may not be made for certain sections, may only be made for child employment in specified performance activities, may not reduce employee protections, and may vary basic conditions of employment in the circumstances stated.
11. Section 55 of the principal Act is amended by the substitution for subsection (6) 20 of the following subsection- “(6) A sectoral determination in terms of subsection (1): ( a ) May not be made in respect of [section] section 7,43(2), [or] 44 e: ( b ) may only be made in respect of section 43( 1) to allowthe employment of children in the performance activities: of advertising, sports, artistic or cultural 25 (c) may not reduce the protection afforded to employees by sections [9 and] 17(3) and (4) and 25 or a regulation made in terms of section 13; Id) may vary the basic conditions contemplated stances by section 50(2A).”. 30 of employment in section 9 in the circum- Amendment of section 60 of Act 75 of 1997 - 12 Verify source ↗
Section 60 of the principal Act is amended by the substitution for subsection (2)
AI-assisted research summary: The Minister must appoint two additional Commission members, including one member and one alternate member nominated by NEDLAC labour and one member and one alternate member nominated by NEDLAC business.
12. Section 60 of the principal Act is amended by the substitution for subsection (2) of the following subsection: .‘(2) The Minister must, in addition, appoint [two more members] to the Commission- ( a ) one [of whom must be] member and one alternate member nominated by the 3.5 voting members of NEDLAC representing organised labour; (b) one [of whom must be] member and one alternate member nominated by the voting members of NEDLAC representing organised business.”. of Amendment Act section 68 of 75 of 1997 - 13 Verify source ↗
Section 68 of the principal Act is amended by the insertion after subsection (1) of
AI-assisted research summary: A labour inspector may try to obtain a written undertaking from the employer to comply with subsection (1).
13. Section 68 of the principal Act is amended by the insertion after subsection (1) of the following subsection: “( 1 A) A labour inspector may endeavour to secure a written undertaking by the employer to comply with subsection (1) either by- (a) meeting with the employer or a representative of the employer: or ( b ) serving a document, in the prescribed form, on the employer.”. Amendment of section 69 of Act 75 of 1997 - 14 Verify source ↗
Section 69 of the principal Act is amended by the substitution for subsection (3)
AI-assisted research summary: A labour inspector must serve a copy of a compliance order on the named employer, affected employees, or, if that is impractical, a representative of the employees.
14. Section 69 of the principal Act is amended by the substitution for subsection (3) 40 45 of the following subsection: “(3) @zJ A labour inspector must [deliver] e a copy of the compliance order 50 [to] on the employer named in it, and [to] 0” each employee affected by it [or, if this is] unless this is impractical, and on a representative of the employees. 10 No. 23539 GAZETTE, GOVERNMENT 24 JUNE 2002 Act No. 11,2002 BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, 2002 ( b ) The failure to serve a copy of a compliance order on any employee or any representative of employees in terms of paragraph ( a ) does not invalidate the order.”. Amendment of section 70 of Act 75 of 1997 - 15 Verify source ↗
Section 70 of the principal Act is amended by the substitution for paragraph (d) of
AI-assisted research summary: Section 70, paragraph (d), is replaced so it applies only when the amount has been payable for more than 12 months before the relevant complaint or labour-inspector date.
15. Section 70 of the principal Act is amended by the substitution for paragraph (d) of 5 the following paragraph: _ . - “ ( d ) that amounthas been payable by the employer to the employee for longer than 12 months before the date to a labour inspector by or on behalf of the employee or, if no complaint was made, the date on which a labour inspector undertaking by the employer in terms of section 68.”. on which a complaint was made first endeavoured to secure a written 10 Amendment of section 73 of Act 75 of 1997 - 16 Verify source ↗
Section 73 of the principal Act is amended by the deletion of subsection (3).
AI-assisted research summary: Section 73 of the principal Act is amended by deleting subsection (3).
16. Section 73 of the principal Act is amended by the deletion of subsection (3). Amendment of section 74 of Act 75 of 1997 - 17 Verify source ↗
Section 74 of the principal Act is amended by the substitution for subsection (2) 15
AI-assisted research summary: If an employee starts an unfair dismissal case, the Labour Court or arbitrator may also decide related money claims owed to the employee, but only if the claim was referred under section 191, is not older than one year before dismissal, and there is no compliance order or other recovery case.
17. Section 74 of the principal Act is amended by the substitution for subsection (2) 15 of the following subsection- “(2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act if- ( a ) the claim is referred in compliance with section 191 of the Labour Relations 20 Act, 1995; (6) the amount [has] not been owing by the employer to the employee for longer than one year prior to the dismissal; and (c) no compliance order has been made and no other legal proceedings have been 25 amount.”. instituted to recover the Substitution of section 75 of Act 75 of 1997Referenced legislation
- Labour Relations 20 Act, 1995 (unresolved)
- 18 Verify source ↗
The following section is substituted for section 75 of the principal Act:
AI-assisted research summary: This section replaces section 75 of the principal Act with a new section titled “Payment of interest”.
18. The following section is substituted for section 75 of the principal Act: “Payment of interest - 75 Verify source ↗
An employer must pay interest on any amount due and payable in
AI-assisted research summary: An employer must pay interest on overdue amounts due under the Act to the person who should have been paid.
75. An employer must pay interest on any amount due and payable in terms of this Act at the rateof interest prescribed in terms of section 1 of the 30 Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), to any person to whom a payment should have been made.” Insertion of section 77A in Act 75 of 1997Referenced legislation
- Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), (unresolved)
- 19 Verify source ↗
The following section is inserted after section 77 of the principal Act:
AI-assisted research summary: This text inserts a new section after section 77 of the principal Act, titled “Powers of Labour Court.”
19. The following section is inserted after section 77 of the principal Act: “Powers of Labour Court - 77A Verify source ↗
Sub.ject to the provisions of this Act, the Labour Court may make
AI-assisted research summary: The Labour Court may make any appropriate order, subject to this Act.
77A. Sub.ject to the provisions of this Act, the Labour Court may make any appropriate order, including an order- .. . by the Director-General in terms making a compliance order issued in terms of this Act, an order of the Labour Court, on application of section 73( 1) or 73(2); condoning the late filing of any document with, or the late referral of any dispute to, the Labour Court; confirming, varying or setting aside all or part of an order made by the Director-General in terms of section 7 1 (3), on appeal by the employer in terms of section 72; reviewing the performance or purported performance of any function provided for in terms of this Act or any act or omission by any person or body in terms of this Act, on any grounds permissible in law; 35 40 45 12 No. 23539 Act No. 11,2002 GOVERNMENT GAZE’lTE, 24 JUNE 2002 BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, 2002 ( e ) it considers reasonable on any matter making a determination that concerning a contract of employment in terms of section 77(3), which determination may include an order for specific performance, an award of damages or an award of compensation; imposing a fine in accordance with Schedule 2 to this Act or for any contravention of any provision of this Act for which a fine can be imposed; and dealing with any matter necessary or incidental to performing its functions in terms of this Act.”. Amendment of section 83 75 of Act of 1997 10 - 20 Verify source ↗
Section 83 of the principal Act is amended by the substitution for subsection (1)
AI-assisted research summary: The Minister may, after consulting the Commission and by notice in the Gazette, declare specified categories of people to be employees or contributors for the stated employment and unemployment insurance purposes.
20. Section 83 of the principal Act is amended by the substitution for subsection (1) of the following subsection: “(1) The Minister may, on the advice of the Commission and by notice in the Gazette, deem any category of persons specified in the notice to be- (a] employees for purposes - employment law other than the Unemployment Insurance Act, 1966 (Act No. of the whole or any part of this Act, any other 15 30 - of 1966), or any sectoral determination; (6) contributors for purposes of the whole or any part of the Unemployment Insurance Act, 1966.”. Insertion of section 83A in Act 75 of 1997 20Referenced legislation
- Unemployment Insurance Act, 1966 (unresolved)
- 21 Verify source ↗
The following section is inserted after section 83 of the principal Act:
AI-assisted research summary: A worker is presumed to be an employee if certain factors are present, unless the person earns above the Minister-determined amount.
21. The following section is inserted after section 83 of the principal Act: “Presumption as to who is employee 83A. (1) A person who works for, or renders services to, any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present: 25 is subject to the control or The manner in which the person works direction of another person; the person’s hours of work are subject to the control or direction of another person; in the case of a person who works for an organisation, the person is a part of that organisation; the person has worked for that other person for an average of at least 40 hours per month over the last three months; the person is economically dependent on the other person for whom that person works or renders services: the person is provided with tools of trade or work equipment by the other person; or the person only works for or renders services to one person. (2) Subsection (1) does not apply to any person who e&s the amount determined by the Minister in terms of section 6(3). in excess of 40 (3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6(3), any CCMA for an advisory award about whether the persons involved arrangement are employees.”. of the contracting parties may approach the in the 45 Amendment of section 87 of Act 75 of 1997
Part
part of that organisation;
- 22 Verify source ↗
Section 87 of the principal Act is amended by the addition
AI-assisted research summary: A Code of Good Practice made under this section may state that the Code must be considered when applying or interpreting employment law.
22. Section 87 of the principal Act is amended by the addition of the following subsection: “(4) A Code of Good Practice issued in terms of this section may provide that the 50 Code must be taken into account in applying or interpreting any employment law.”. 14 No. 23539 GAZETTE. GOVERNMENT 24 JUNE 2002 Act No. 11,2002 BASIC CONDITIONS OF EMPLOYMENT AMENDMENT ACT, 2002 Amendment of Schedule 3 to Act 75 of 1997 - 23 Verify source ↗
Schedule 3 to the principal Act is amended by-
AI-assisted research summary: This section amends Schedule 3 so certain old wage determinations are treated as sectoral determinations, lets the Minister change wage determinations, and sets transitional rules for related prosecutions and certificates.
23. Schedule 3 to the principal Act is amended by- ( a ) the substitution for item 9 of the following item: “Wage determinations 9. (1) Any wage determination and any amendment to a wage 5 determination made in terms of section 15 of the Wage Act, 1957, in force immediately before the commencement of [this Act remains in force for the period of its operation in terms of section 18 of that Act, and may be extended or amended as if that Act had not been repealed] the Basic Conditions of Employment Amendment Act, 2002 (hereafter referred to as a ‘wage determination’) is deemed to be a sectoral determination made in accordance with section 55 of this Act. 10 (2) Any provision in a wage determination stipulating a minimum term of of employment is deemed to be a basic condition or condition employment defined in section 1 of this Act. (3) The Minister may amend, cancel, suspend, clarify or correct any wage determination in accordance with Chapter Eight of this Act. (4) The provisions of a wage determination may be enforced in accordance with Chapter Ten of this Act. or licence of exemption from ( 5 ) Any prosecution concerning a contravention of, or failure to comply with, a binding wage determination 1 November 1998 until the commencement of Employment Amendment Act. 2002, which prosecution commenced prior to or within three months Basic Conditions of Employment Amendment Act, 2002, must be dealt with in not been terms of the Wage Act, 1957, as if the Wage Act, 1957, had repealed. of the commencement date of the Basic Conditions of the 15 20 25 ( 6 ) The Director of Public Prosecutions having jurisdiction is deemed to have issued a certificate in terms of section 23(3)(a) of the Wage Act. 1957, in respect of any contravention or failure contemplated in subitem (5) in respect of which no prosecution is commenced within three months of the commencement date of the Basic Conditions of Employment Amendment Act. 2002.”; and ( b ) the substitution for item 10 of the following item: “Exemptions to wage determinationReferenced legislation
- Wage Act. 1957 (unresolved)
- Wage Act, 1957 (unresolved)
- Wage Act, 1957 (unresolved)
- Wage Act, 1957 (unresolved)
- 10 Verify source ↗
Any licence of exemption granted
AI-assisted research summary: A licence of exemption tied to a wage determination may be withdrawn six months after the commencement of the Basic Conditions of Employment Amendment Act, 2002.
10. Any licence of exemption granted [to] in respect of a wage 30 35 determination in terms of section 19 of the Wage Act, 1957, in force immediately before the commencement be withdrawn as from a date six months after the commencement date of the Basic Conditions of Employment Amendment Act, 2002 [remains in force 40 for the period of the determination, or until withdrawn in section 19(5) of that Act, as if that Act had not been repealed.]”. of this Act is deemed to terms of Short title and commencementReferenced legislation
- Wage Act, 1957 (unresolved)
- 24 Verify source ↗
This Act is called the Basic Conditions of Employment Amendment Act, 2002,
AI-assisted research summary: This Act is named the Basic Conditions of Employment Amendment Act, 2002, and it starts when the President sets the commencement date by proclamation in the Gazette.
24. This Act is called the Basic Conditions of Employment Amendment Act, 2002, and comes into operation on a date determined by the President by proclamation in the 45 Gazette.
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