Labour Law – ABR224

1. Labour Law – ABR224 Lecture 10 The Basic Conditions of Employment Act, 75 of 1997

2. Learning outcomes • Indicate which rights are regarded as core rights of an employee in terms of the Act. • Briefly explain the ways in which conditions of employment are monitored and enforced. • Indicate which other rights an employee may exercise in terms of the Act and discuss the protection against discrimination as afforded to an employee by the Act.

3. BCEA (Employment Conditions Commission) • Wage Act 5 of 1957 replaced by BCEA of 1997 and old Wage Board replaced by ECC. • Aims of ECC: • Advising Minister on sectoral determinations. • Advising Minister on matters concerning basic conditions of employment. • Advising Minister on matters arising out of application of Act. • Advise Minister on effect of policies of government on employment. • Advising Minister on trends in collective bargaining and whether any of those trends undermine purposes of Act. • Advice to Minister for Welfare and Social Development on any matter concerning the employment of children. • Advice to Minister for the Public Service and Administration on any matter concerning basic conditions of employment in the public service. • ECC is composed of 3 persons who are knowledgeable about labour market and conditions of employment, including conditions of employment of vulnerable and unorganized workers. • Appointed by Minister after consultation with NEDLAC.

4. The “policing” by the ECC

5. BCEA (Monitoring and enforcement of legal provisions I) • Monitoring and enforcement of employment conditions responsibility of administrative system and Labour Court. • Administrative enforcement promoted by investing labour inspectors with wide powers of entry and investigation and empowering them to issue compliance orders against employers who fail to comply with Act. • Labour inspector may enter private home only with consent of owner/occupier or if authorised by Labour Court. • Evidence given by person to inspector may not be used against that person in criminal proceedings. • Labour inspectors and accredited bargaining council agents may promote, monitor and enforce compliance with employment laws by advising employers and employees of their rights and obligations. May conduct inspections, investigate complaints and endeavour to secure compliance with employment laws, by securing undertakings from employers or issuing compliance orders. • Labour inspector who has reasonable grounds to believe that employer has not complied with Act, must endeavour to secure from employer written undertaking to comply. (By meeting with employer/serving prescribed document on employer. • Inspector may: • Seek to obtain agreement between employer and employee as to any amount owed to employee i.t.o. Act. • Arrange for payment to employee of any amount paid as result of undertaking. • At written request of employee, receive payment on behalf of employee. • Provide receipt for any abovementioned payment received.

6. BCEA (Monitoring and enforcement of legal provisions II) • Labour inspector who has reasonable grounds to believe that employer has not complied with provision of Act, may issue compliance order, which must set out: • Name of employer and location of every workplace to which order applies. • Any provision employer has failed to comply with, and his conduct that constitutes non-compliance. • Any amount that employer is required to pay to employee. • Any written undertaking by employer, and failure to comply with such undertaking. • Any steps that employer is required to take. • Maximum fine that may be imposed upon employer’s failure to comply. • If employee is subject to collective agreement that provides for arbitration, inspector may not issue compliance order. Order may also not be issued if employee concerned is senior managerial employee, or an employee who earns in excess of ceiling determined by Minister, if employee has instituted action for recovery of amount or where amount has been owed for more than 12 months. • Labour inspector must deliver copy of compliance order to employer and to each affected employee. Mere failure to serve copy on any employee, does not invalidate order. Copy of order must be displayed in workplace by employer. Employer must comply with order within time period stated, unless he objects to it. • Employer may object to compliance order by making representations in writing to Director-General (within 21 days of receipt of that order). DG may confirm, amend or cancel such an order. • Employer may appeal against DG’s order to Labour Court, within 21 days.

7. Check your understanding ...... • What labour inspectors may and may not do. • Differentiate between a compliance order and a written undertaking to conform to legislation. • Know when labour inspectors and bargaining council agents may enter a place of business or a home and when not. • When may a compliance order not be issued??

8. BCEA (Legal proceedings) • If employee institutes proceedings for unfair dismissal, Labour Court/arbitrator hearing matter, may determine any claim for an amount owed to employees. Amount, however, must not have been owing to employee for longer than 1 year prior to dismissal. • Employee has right to institute civil claim to recover any amount owing i.t.o. Act, and may also approach DOL for assistance. • Present, former and prospective employees and trade union representatives are protected against discrimination. No person may discriminate against employee for exercising right or prevent him from exercising right. Employee may not be prejudiced because of past/present/anticipated failure/refusal to do anything that employer may not lawfully permit/require to be done. • If dispute about interpretation/application i.r.o. unfair discrimination, it may be referred to council/CCMA, after it has been served on all relevant parties. CCMA must attempt to resolve dispute through conciliation. If unsuccessful, it must be referred to the Labour Court.

9. The ECC should be awake

10. EEC has rights and obligations!

11. BCEA (General) • Employees have the following rights: • To lodge complaint with trade union/labour inspector regarding employer’s alleged failure/refusal to comply with Act. • To discuss his conditions of employment with co-employees. • To refuse to obey illegal instructions. • To refuse to consent to condition of employment in contradiction with BCEA/sectoral determination. • To inspect any record of his employment. • To request that labour inspector/trade union representative inspect any record of his employment. • To participate in proceedings i.t.o. Act. • Employees (including former employees and job applicants) are protected against discrimination for exercising rights i.t.o. Act. No person may request employee not to exercise right i.t.o. the Act. • Employees may not be prejudiced because of past/present /anticipated failure to obey illegal instructions. Employee may not be discriminated against because of information he was entitled/obliged to disclose. • Person whose services have been procured for to client by temporary employment service, is the employee, and the temporary employment service is that person’s employer. Temporary employment service and client (person for whom services are rendered) are jointly and severally liable if there is failure to comply with Act. • In determining duration of employment, previous employment with the same employer must be taken into account, but only if break between periods of employment was less than one year. • Code of Good Practice on Arrangement of Working Time • Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child. • Offence for any person to disclose information which he has acquired in the performance of his powers and which relates to financial/business affairs of another person, except if information is disclosed i.t.o. employment law, for the purposes of proper administration of Act or for the purposes of the administration of justice.