Last updated on: September 19th, 2022
The Basic Conditions of Employment Act 75 of 1997 regulates working time, leave, termination of employment, recordkeeping, and prohibition of child labor in South Africa. The Labour Relations Act governs freedom of association, collective bargaining, strikes and lockouts, and other forms of industrial action.
Hours & Pay Regulations
The annual leave cycle means the period of 12 months’ employment with the same employer immediately following an employee’s commencement of employment or the completion of that employee’s prior leave cycle.
- The employer must grant an employee at least 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or
- If the employee and the employer agree, the worker can take one day of leave for every 17 days worked or one hour of leave for every 17 hours worked.
An employee is entitled to take leave accumulated in an annual leave cycle on consecutive days. An employer must grant annual leave not later than six months after the end of the annual leave cycle.
Employees who work 24 hours or more per month are entitled to 21 consecutive days of paid annual leave during every 12-month period they are with the same employer.
An employee must generally complete the 12-month leave cycle before taking the leave, although employers have the discretion to change this. Employers cannot pay workers in lieu of taking annual leave, although, on termination of employment, they must pay them for unused leave. Absent an agreement between the employer and employee, the employer can mandate when leave must be taken. An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave.
Pay for Annual Leave
An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated at the employee’s rate of remuneration immediately before the beginning of the period of annual leave: and in accordance with the regular rate of pay. For the purposes of calculating an employee’s annual leave pay or severance pay an employee’s remuneration:
- includes the cash value of any payment in kind that forms part of the employee’s remuneration unless the employee receives that payment in kind; but
- Excludes (i) gratuities: (ii) allowances paid to an employee for the purposes of enabling an employee to work; and (iii) any discretionary payments not related to the employee’s hours of work or work performance.
Section 20, 21& 35 of Employment Act
Female employees are eligible for 4 consecutive months of maternity leave of which benefits are paid by the Unemployment Insurance Fund. Pregnant employees are entitled to start the leave within four weeks of the due date, or on a date from which a medical practitioner certifies that it is necessary for the employee’s health or that of her unborn child.
Women are not permitted to work for six weeks after giving birth unless certified by a doctor. An employee who suffers a miscarriage during the third trimester of pregnancy or who gives birth to a stillborn child receives six weeks’ leave after the loss, regardless of whether maternity leave had begun.
Employees also can receive paid maternity benefits based on a collective agreement or employment contract in which the employer agrees to provide payment above its contribution to the Unemployment Insurance Fund. Employers cannot require or allow pregnant or nursing employees to perform work that is hazardous to their health or that of their children and must if possible provide alternative work. Section 25 & 26 of Employment Act.
An employee, who is a commissioning parent in a surrogate motherhood agreement is entitled to at least ten weeks consecutive commissioning parental leave; or ten consecutive days parental leave when his/her child is born as a result of a surrogate motherhood agreement. Section 25C of Employment Act.
An employee, who is a parent of a child, is entitled to at least 10 unpaid consecutive days of parental leave. An employee may commence parental leave on the day that the employee’s child is born; or the date that the adoption order is granted; or that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child, whichever date occurs first.
An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to commence parental leave; and return to work after parental leave. The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001). Section 25A of Employment Act.
An employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave of at least ten weeks consecutively; or the parental leave referred to in section 25A. An employee may commence adoption leave on the date
- that the adoption order is granted; or
- that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child, whichever date occurs first.
If there are two adoptive parents, one of the employees is entitled to adoption leave and the other employee is entitled to parental leave. The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001. Section 25C of Employment Act
An employee is entitled to six weeks’ paid sick leave in a period of 36 months. During the first six months, an employee is entitled to one day’s paid sick leave for every 26 days worked. An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent. Section 22-24 of the Employment Act as amended in 2020.
Full-time employees who have been in employment with an employer for longer than four months; and who works for at least four days a week for that employer are entitled to 3 days paid family responsibility leave per year, on request, when the employee’s child is born or sick, or in the event of the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. Family responsibility leave time might differ in a collective agreement.
An employee may take family responsibility leave in respect of the whole or a part of a day. An employee’s unused entitlement to leave lapses at the end of the annual leave cycle in which it accrues. Section 27 of the Employment Act.
During election years, a 13th annual paid public holiday is usually declared to allow workers to vote in local government elections.