The Basic Conditions of Employment Act 75 of 1997 regulates the 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.
Discrimination and affirmative action issues are regulated by the Employment Equality Act.
Hours & Pay Regulations
The regular workweek may vary for different employers and workers, but the maximum is 45 hours. For employees whose regular workweek is five days, the regular workday cannot exceed nine hours. For those who work more than five days a week, the regular workday cannot exceed eight hours. Even with overtime, an employee’s workday cannot exceed 12 hours.
If set forth by a collective agreement, the hours of work and overtime may be averaged over a period of up to four months. Conditions of Employment Act, No. 75 of 1977, § § 9-15, 17.
The decision to work overtime must be by agreement between employee and employer, and most employees who work more than their regular workweek must be compensated for the extra time. Employees generally cannot work more than three hours’ overtime per day or 10 hours a week, although a collective or bargaining council agreement can increase overtime to 15 hours per week for up to two months in any 12-month period.
The overtime pay rate is 1.5 times the normal wage. An employer and an employee can also come to an agreement in which the worker is paid regular wages and given 30 minutes’ compensatory time off or simply 90 minutes of compensatory time for every hour of overtime worked.
Employees receive double their normal wage rate if they work on Sundays unless the day is part of their regular workweek, in which case they receive wages at time-and-one-half their normal salary. Employers and employees also can agree to the option of paid time off if an employee works on a Sunday, but it must be at the enhanced rate for Sunday work.
Restrictions on working time do not apply to senior managers, sales staff and employees who work fewer than 24 hours a month. Overtime: Basic Conditions of Employment Act, No. 75 of 1977, § § 10, 16.
Night work is considered any work done between 6 p.m. and 6 a.m. for most workers, 8 p.m. to 4 a.m. for farm workers and 7 p.m. to 7 a.m. for workers in the wholesale and retail sector. Employees cannot be required to work at night. If they agree to night work, employees are entitled to extra pay or a reduction in working hours, and transportation between home and workplace must be available at the beginning and end of the shift, but not necessarily provided by the employer.
Employees who work between 11 p.m. and 6 a.m. on a regular basis—“regular basis” defined as more than one hour at least five times a month or 50 times per year—must be informed by their employer about health and safety hazards related to night work and that they have the right to get medical examinations related to those hazards at the employers expense. Conditions of Employment Act, No. 75 of 1977, § § 9-15, 17.
Employees who complete five continuous hours of work on any given day must have a meal break of at least one continuous hour. If the employer and the employee agree, the 60-minute break can be reduced to 30 minutes or, in the case of employees who work fewer than six hours a day, dispensed with. Conditions of Employment Act, No. 75 of 1977, § § 9-15, 17.
Employees generally must have 12 hours off work between the end of one shift and the beginning of the next. Between the end of the last shift of one workweek and the beginning of the first shift of the next, employees are entitled to 36 consecutive hours off, which must include a Sunday unless an employer and an employee have an agreement to the contrary. Conditions of Employment Act, No. 75 of 1977, § § 9-15, 17.
There are 12 paid holidays under the Public Holidays Act. Employees who work on a public holiday are paid double their normal wage. A public holiday can be exchanged for another day off if the employer and the employee agree. South Africa’s public holidays are:
- New Year’s Day – January 1
- Human Rights Day – March 21
- Good Friday – The Friday before Easter Sunday
- Family Day – The day after Easter Sunday
- Freedom Day – April 27
- Workers’ Day – May 1
- Youth Day – June 16
- National Women’s Day – August 9
- Heritage Day – September 24
- Day of Reconciliation – December 16
- Christmas Day – December 25
- Day of Goodwill – December 26
Whenever a holiday falls on a Sunday, the following Monday is considered a public holiday. During election years, a 13th annual paid public holiday is usually declared to allow workers to vote in local government elections. Conditions of Employment Act, No. 75 of 1977, § 18.
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. 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 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. Employers must grant the leave within six months of the end of the annual 12-month leave cycle. The employee is entitled to take annual leave accumulated in an annual leave cycle on consecutive days. Basic Conditions of Employment Act, No. 75 of 1977, § § 20-21.
Effective Jan. 1, 2019, the national minimum wage will be 20 rands per hour.
Female employees are eligible for four consecutive months of maternity leave, benefits paid by the Unemployment Insurance Fund. Pregnant employees are entitled to start the leave within four weeks of the due date, although earlier or later start dates are allowed by agreement between an employer and an employee or in cases of medical necessity. Women are not permitted to work for six weeks after giving birth unless certified by a doctor or midwife to do so.
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.
The benefit from the Unemployment Insurance Fund is determined on a sliding scale based on monthly remuneration. 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.
Maternity protection guidelines appear in the nonbinding Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child. Employers are expected to inform workers about hazards to pregnant or breast-feeding employees and the importance of notifying employers if they are pregnant. According to the code, employers should keep a record of every notification of pregnancy and should evaluate whether the employee’s job might create a potential risk to the worker or the fetus. The code notes that for the first six months after the birth of a child, employees who are breast-feeding should have two 30-minute breaks each workday to breast-feed or express milk. While such codes are nonbinding, courts and tribunals consider them in labor law disputes. Basic Conditions of Employment Act, No. 75 of 1977, § § 25-26.
Working fathers are entitled to 10 days of parental leave upon the birth of their child. Basic Conditions of Employment Act, No. 75 of 1977, § 27.
Parents who are not covered by maternity leave are entitled to 10 days of parental leave upon the birth or adoption of their child. The benefit is paid by the Unemployment Insurance Fund. Employees must notify their employers in writing of the date in which they intend to begin taking parental leave and return to work following parental leave. Basic Conditions of Employment Act, No. 75 of 1977, § 27; Labour Laws Amendment Bill, 2017.
Parents of an adopted child under two years old may take up to ten consecutive weeks of adoption leave. If there are two adoptive parents, one of the employees is entitled to adoption leave and the other employee is entitled to parental leave. Basic Conditions of Employment Act, No. 75 of 1977, § 27; Labour Laws Amendment Bill, 2017.
Paid sick leave is granted in 36-month cycles commencing from an employee’s start date with an employer and is equal to the number of days the employee normally would work during a six-week period. For example, during the three-year cycle, an employee who works a five-day week is eligible for 30 days of sick leave. During the first six months with an employer, workers cannot take more than one sick day for every 26 days worked.
Sick leave terms can vary if they are negotiated differently in an employment contract or in a collective agreement If an employee is absent for more than two consecutive days or on more than two occasions during an eight-week period and does not respond to a request to provide a medical certificate that explains the absences, the employer is not required to pay the employee for the sick leave. Any unused sick leave balance is not carried over to the following year’s leave cycle.
Health insurance plans often are provided by bargaining councils and by most employers that are not covered by a bargaining council plan. The employer and the employee contribute in equal amounts to such plans. Basic Conditions of Employment Act, No. 75 of 1977, § 22.
Employees who have been with the same employer for more than four months and who work at least four days a week for the employer are generally entitled to three days of paid family responsibility leave during each 12-month period after starting the job (the annual leave cycle). Under the Basic Conditions of Employment Act, the leave can be taken for the birth of a child, a child’s illness or the death of a family member. Employers may require proof of the need for the leave. “Family member” is defined as a spouse, life partner, biological or adoptive parent, grandparent, child (including adopted), grandchild or sibling. Family responsibility leave time might differ in a collective agreement. Basic Conditions of Employment Act, No. 75 of 1977, § 27; Labour Laws Amendment Bill, 2017.
Last updated on: August 9th, 2019