The South African constitution provides for some basic rights for workers. The Labour Relations Act (LRA) expands on these basic rights. In addition to this, the Basic Conditions of Employment Act (BCEA) seeks to protect vulnerable workers. The conditions outlined in the LRA and the BCEA aren’t inflexible, meaning that employers can offer better conditions, but not worse conditions.
The most important advice for any worker is to read and know your contract. While a contract isn’t strictly necessary, it protects both the employer and the employee. A contract signed by both parties is legally binding. But what are the responsibilities of the workers themselves?
What are your fundamental rights?
National minimum wage
Currently, the national minimum wage is R20 an hour for the average worker, R18 an hour for farmworkers, R15 an hour for domestic workers and R11 an hour for expanded public works programme workers, with various complications surrounding this number (read more here). This doesn’t mean that an employer should only pay this amount, but rather that employers can use this number as a benchmark for lowest-paid workers.
Time and overtime
Chapter 2 of the BCEA regulates working time, including all hours and overtime. However, these hours only apply to employees earning less than R147,376 per year. The maximum normal working time allowed is 9 hours per day (excluding lunch break) if the employee works a five-day week. Employees who earn above R147,376 per year must negotiate the normal amount of working hours per day or per week with the employer, and this should be noted in the contract. The employee is under no obligation to work more than 45 hours per week. Employees above the threshold cannot demand to be paid overtime, and the employer cannot force the employee to work overtime or work overtime without compensation. To know more details, go here.
Leave, sick leave and parental leave
The BCEA gives employees a “minimum of 21 consecutive days or 15 working days’ annual leave on full pay”. Annual leave is accumulative, meaning for every 17 days worked, one day of leave is granted, or for every 17 hours worked, one hour of leave is granted. Sick leave is granted in a cycle of 36 months. Every cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. So if the employee works 5 days a week, that means the employee is entitled to 30 sick leave days per 36-month cycle. There are some limitations to this, read more here.
A pregnant employee is entitled to at leave 4 months unpaid maternity leave. The employer has to hold the employee’s job open for her to return from maternity leave. Many employers in South Africa choose to offer partially paid maternity leave, with the employee having the option of claiming from the Department of Labour for additional remuneration during maternity leave. The maternity leave laws provide for the mother, while in terms of the Labour Laws Amendment Act an employee (other parent) is entitled to 10 days parental leave when the child is born.
The Compensation for Occupational Injuries and Diseases Act
Health and safety
The Occupational Health and Safety Act (OHSA) gives guidelines on the things that must be in place to ensure the health and safety of employees. Some of the rights include proper toilets, first aid, drinking water, changing facilities, protective clothing, ventilation, lighting and temperature. Workers in mines and ships are exempted from OHSA. The covid-19 pandemic presented new workplace issues addressed in the guidelines and direction for OHS issued by the minister of Employment and Labour in October 2020.
One of the most important rights of being employed in South Africa is the right to organise. The constitution gives two very important rights to workers in South Africa about this: firstly, that every worker has the right to form and join a trade union and to participate in the union’s activities; and secondly, every worker has the right to strike.
Discrimination is addressed in section 9(3) and section 9(4) of the Constitution of the Republic of South Africa, 1996 and section 6 of the Employment Equity Act (EEA). It reads that: ‘No person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds including race, gender, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, and birth.’