South African labour and employment laws governing the terms and conditions of employment contracts are mainly set out in the Basic Conditions of Employment Act (“BCEA”).
The BCEA applies to all employees who ordinarily work in South Africa except members of the State Security Agency and unpaid volunteers working for charities.
The legislation therefore covers employees who work partly outside South Africa and partly inside South Africa as well as outside the country (i.e. nationals and foreign nationals). This means that regardless of the stated governing law of the contract or the nationalities of either the employee or the employer, the terms of all employment contracts must comply with certain statutory requirements before the law recognises the enforceability of same.
It must however be noted that employees earning in excess of R 205 433.30 per annum are excluded from the application of Chapter 2 of the BCEA which regulates the prescribed working hours of employees, including all hours and overtime. (In terms of this determination, ‘earnings’ means gross pay before deductions for income tax, pension, medical and similar payments.)
Chapter 2 furthermore does not apply to senior managerial employees, employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work and employees who work less than 24 (twenty four) hours a month for an employer.
Subject to the above exceptions, the following provisions of Chapter 2 are applicable to employees:
•a work week must not be longer than 45 (forty five) hours (9 (nine) hours a day if an employee works 5 (five) days or less a week, alternatively, 8 (eight) hours a day if an employee works more than 5 (five) days a week);
•employees cannot be forced to work overtime. To this extent employees can agree to work overtime by agreement, but for no more than 10 (ten) hours a week;
•a mealtime break of 1 (one) hour must be awarded after 5 (five) hours of continuous work. This may be lowered to 30 (thirty) minutes, if both the employer and employee are in agreement, provided the working day is less than 6 (six) hours in length;
•employees must have a daily rest period of 12 (twelve) consecutive hours and a weekly rest period of thirty 6 (six) consecutive hours; and
•employees who work intermittently on a Sunday must be paid double, and those who normally work on a Sunday must be paid 1.5 (one point five) times their normal wage. Furthermore, employees cannot be forced to work on a public holiday, and to this extent must be paid double if they agree to.
Chapter 3 of the BCEA regulates the various types of leave granted to employees and does not apply to employees who work less than 24 (twenty four) hours a month for an employer. In terms of Chapter 3:
•employees are entitled to 21 (twenty one) consecutive days’ annual leave or, by agreement, 1 (one) day for every 17 (seventeen) days worked;
•employees are entitled to 6 (six) weeks’ paid sick leave in a 36 (thirty six) month period; and
•pregnant employees are entitled to 4 (four) consecutive months of unpaid maternity leave.
In summary, if any term of an employment contract contradicts any of the above protective provisions contained in Chapter 2 and 3 of the BCEA, such term will not be enforceable unless the conditions imposed thereby are more favourable to the employee. This statutory approach recognises the need for basic protection to employees who have little to no bargaining power to balance the superior unequalled power of their employers.
It is therefore prudent that both employer and employee comply with the necessary employment and statutory limitations when entering into an employment contract.