Chapter Seven: Variation of Basic Conditions of Employment

49. Variation by agreement

1. A collective agreement concluded in a bargaining council may alter, replace or exclude any basic condition of employment if the collective agreement is consistent with the purpose of this Act and the collective agreement does not--

   1. reduce the protection afforded to employees by sections 7, 9 and any regulation made in terms of section 13;
   2. reduce the protection afforded to employees who perform night work in terms of section 17(3) and (4);
   3. reduce an employee's annual leave in terms of section 20 to less than two weeks;
   4. reduce an employee's entitlement to maternity leave in terms of section 25;
   5. reduce an employee's entitlement to sick leave in terms of sections 22, 23 and 24;
   6. conflict with the provisions of Chapter Six.



2. A collective agreement, other than an agreement contemplated in subsection (1), may replace or exclude a basic condition of employment, to the extent permitted by this Act or a sectoral determination.

3. An employer and an employee may agree to replace or exclude a basic condition of employment to the extent permitted by this Act or a sectoral determination.

4. No provision in this Act or a sectoral determination may be interpreted as permitting--

   1. a contract of employment or agreement between an employer and an employee contrary to the provisions of a collective agreement;
   2. a collective agreement contrary to the provisions of a collective agreement concluded in a bargaining council.

50. Variation by Minister

1. The Minister may, if it is consistent with the purpose of this Act, make a determination to replace or exclude any basic condition of employment provided for in this Act in respect of--

   1. any category of employees or category of employers; or

   2. any employer or employee in respect of whom an application is made by--

      1. the employer;
      2. the registered employers' organisation;
      3. the employer and the registered employers' organisation.



2. A determination in terms of subsection (1)-

   1. may not be made in respect of sections 7, , 17(3) and (4), 43(2), 44 or 48 or a regulation made in terms of section 13; and
   2. may only be made in respect of section 43(1) to allow the employment of children in the performance of advertising, sports, artistic or cultural activities.

2. A. A determination in terms of subsection (1) may only be made in respect of section 9 if-

   1. the employees' ordinary hours of work, rest periods and annual leave are on the whole more favourable to the employees than the basic conditions of employment in terms of sections 9, 10, 14, 15 and 20; and

   2. the determination-

      1. has been agreed to in a collective agreement;
      2. is necessitated by the operational circumstances of the sector in respect of which the variation is sought and the majority of employees in the sector are not members of a registered trade union; or
      3. applies to the agricultural sector or the private security sector.
   
   

3. A determination in terms of subsection (1)(a) must--

   1. be made on the advice of the Commission; and
   2. be issued by a notice in the Gazette.



4. The Minister may request the Commission--

   1. to advise on any application made in terms of subsection (1)(b);
   2. to prepare guidelines for the consideration of applications made in terms of subsection (1)(b).



5. A determination in terms of subsection (1) that applies to the public service must be made by the Minister with the concurrence of the Minister for the Public Service and Administration.

6. If a determination in terms of subsection (1) concerns the employment of children, the Minister must consult with the Minister for Welfare and Population Development before making the determination.

7. 1. A determination in terms of subsection (1)(b) may be issued if the application has the consent of every registered trade union that represents the employees in respect of whom the determination is to apply.

   2. If no consent contemplated in paragraph (a) is obtained, a determination in terms of subsection (1)(b) may be issued if--

      1. the employer or employers' organisation has served a copy of the application, together with a notice stating that representations may be made to the Minister, on any registered trade union that represents employees affected by the application; and
      2. in the case where the majority of employees are not represented by a registered trade union, the employer or employer's organisation has taken reasonable steps to bring the application and the fact that representations may be made to the Minister, to the attention of those employees.
   
   

8. A determination made in terms of subsection (1)(b)--

   1. may be issued on any conditions and for a period determined by the Minister;
   2. may take effect on a date earlier than the date on which the determination is given, but not earlier than the date on which application was made;
   3. must be issued in a notice in the prescribed form if the determination is made in respect of an application made by an employer;
   4. must be published in a notice in the Gazette if the determination is made in respect of an application made by an employers' organisation.


9. 1. The Minister may on application by any affected party and after allowing other affected parties a reasonable opportunity to make representations, amend or withdraw a determination issued in terms of subsection (1).

   2. For the purposes of paragraph (a), an affected party is--

      1. an employer or employer's organisation that is covered by the determination;
      2. a registered trade union representing employees covered by the determination, or an employee covered by the determination who is not a member of a registered trade union.



10. An employer in respect of whom a determination has been made, or whose employees are covered by a determination in terms of subsection (1), must--

    1. display a copy of the notice conspicuously at the workplace where it can be read by the employees to whom the determination applies;
    2. notify each employee in writing of the fact of the determination and of where a copy of the notice has been displayed; and

    3. give a copy of the notice to every--

       1. registered trade union representing those employees;
       2. trade union representative representing those employees; and
       3. employee who requests a copy.