Basic Conditions of Employment Act, 1997 To give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment; and thereby to comply with the obligations of the Republic as a member state of the International Labour Organisation; and to provide for matters connected therewith. Chapter One: Definitions, purpose and application of this Act 1. Definitions In this Act, unless the context indicates otherwise-- "agreement" includes a collective agreement; "area" includes any number of areas, whether or not contiguous; "bargaining council" means a bargaining council registered in terms of the Labour Relations Act, 1995, and, in relation to the public service, includes the bargaining councils referred to in section 35 of that Act; "basic condition of employment" means a provision of this Act or sectoral determination that stipulates a minimum term or condition of employment; "CCMA" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995 ; "child" means a person who is under 18 years of age; "code of good practice" means a code of good practice issued by the Minister in terms of section 87 of this Act; "collective agreement" means a written agreement concerning terms and conditions of employment or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand-- a) one or more employers; b) one or more registered employers' organisations; or c) one or more employers and one or more registered employers' organisation; "Commission" means the Employment Conditions Commission established by section 59(1); "compliance order" means a compliance order issued by a labour inspector in terms of section 69(1); "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); "council" includes a bargaining council and a statutory council; "Department" means the Department of Labour; "Director-General" means the Director-General of Labour; "dispute" includes an alleged dispute; "domestic worker" means an employee who performs domestic work in the home of his or her employer and includes-- a) a gardener; b) a person employed by a household as driver of a motor vehicle; and c) a person who takes care of children, the aged, the sick, the frail or the disabled, but does not include a farm worker; "employee" means-- a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have a corresponding meaning; "employers' organisation" means any number of employers associated together for the purpose, whether by itself or with other purposes, of regulating relations between employers and employees or trade unions; "employment law" includes this Act, any other Act the administration of which has been assigned to the Minister, and any of the following Acts: a) The Unemployment Insurance Act, 1966 (Act No. 30 of 1966); b) the Skills Development Act, 1998 (Act No. 97 of 1998); c) the Employment Equity Act, 1998 (Act No. 55 of 1998) d) the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); e) the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993); "farm worker" means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work in a home on a farm; "Labour Appeal Court" means the Labour Appeal Court established by section 167 of the Labour Relations Act, 1995; "Labour Court" means the Labour Court established by section 151 of the Labour Relations Act, 1995; "labour inspector" means a labour inspector appointed under section 63, and includes any person designated by the Minister under that section to perform any function of a labour inspector; "Labour Relations Act, 1995" means the Labour Relations Act, 1995 (Act No. 66 of 1995); "medical practitioner" means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974); "midwife" means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978); "Minister" means the Minister of Labour; "month" means a calendar month; "NEDLAC" means the National Economic, Development and Labour Council established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994); "ordinary hours of work" means the hours of work permitted in terms of section 9 or in terms of any agreement in terms of sections 11 or 12; "overtime" means the time that an employee works during a day or a week in excess of ordinary hours of work; "prescribe" means to prescribe by regulation and "prescribed" has a corresponding meaning; "public holiday" means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994); "public service" means the public service referred to in section 1(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes any organisational component contemplated in section 7(4) of that Act and specified in the first column of Schedule 2 to that Act, but excluding-- a) the members of the National Defence Force; b) the National Intelligence Agency; and c) the South African Secret Service; "registered employers' organisation" means an employers' organisation registered under section 96 of the Labour Relations Act, 1995; "registered trade union" means a trade union registered under section 96 of the Labour Relations Act, 1995; "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning, "sector" means an industry or a service or a part of an industry or a service; "sectoral determination" means a sectoral determination made under Chapter Eight; "senior managerial employee" means an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally; "serve" means to send by registered post, telegram, telex, telefax or deliver by hand; "statutory council" means a council established under Part E of Chapter III of the Labour Relations Act, 1995; "temporary employment service" means any person who, for reward, procures for, or provides to, a client, other persons-- a) who render services to, or perform work for, the client; and b) who are remunerated by the temporary employment service; "this Act" includes the Schedules and any regulation made under this Act, but does not include the headings or footnotes; "trade union" means an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers organisations; "trade union official" includes an official of a federation of trade unions; "trade union representative" means a trade union representative who is entitled to exercise the rights contemplated in section 14 of the Labour Relations Act, 1995; "wage" means the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or week; "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls; "workplace" means any place where employees work; "workplace forum" means a workplace forum established under Chapter V of the Labour Relations Act, 1995. Chapter One: Definitions, purpose and application of this Act 2. Purpose of this Act The purpose of this Act is to advance economic development and social justice by fulfilling the primary objects of this Act which are-- a) to give effect to and regulate the right to fair labour practices conferred by section 23(1) of the Constitution-- i) by establishing and enforcing basic conditions of employment; and ii) by regulating the variation of basic conditions of employment; b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation. Chapter One: Definitions, purpose and application of this Act 3. Application of this Act 1) This Act applies to all employees and employers except-- a) members of the National Defence Force, the National Intelligence Agency and the South African Secret Service; and b) unpaid volunteers working for an organisation serving a charitable purpose. 2) This Act applies to persons undergoing vocational training except to the extent that any term or condition of their employment is regulated by the provisions of any other law. 3) This Act, except section 41, does not apply to persons employed on vessels at sea in respect of which the Merchant Shipping Act, 1951 (Act No. 57 of 1951), applies except to the extent provided for in a sectoral determination. Chapter One: Definitions, purpose and application of this Act 4. Inclusion of provisions in contracts of employment A basic condition of employment constitutes a term of any contract of employment except to the extent that-- a) any other law provides a term that is more favourable to the employee; b) the basic condition of employment has been replaced, varied, or excluded in accordance with the provisions of this Act; or c) a term of the contract of employment is more favourable to the employee than the basic condition of employment. Chapter One: Definitions, purpose and application of this Act 5. This Act not affected by agreements This Act or anything done under it takes precedence over any agreement, whether entered into before or after the commencement of this Act. Chapter Two: Regulation of working time 6. Application of this Chapter 1) This Chapter, except section 7, does not apply to-- a) senior managerial employees; b) employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work; c) employees who work less than 24 hours a month for an employer. 2) Sections 9, 10(1), 14(1), 15(1), 17(2) and 18(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work. 3) The Minister must, on the advice of the Commission, make a determination that excludes the application of this Chapter or any provision of it to any category of employees earning in excess of an amount stated in that determination. 4) Before the Minister issues a notice in terms of subsection (3), the Minister must-- a) publish in the Gazette a draft of the proposed notice; and b) invite interested persons to submit written representations on the proposed notice within a reasonable period. Chapter Two: Regulation of working time 7. Regulation of working time Every employer must regulate the working time of each employee-- a) in accordance with the provisions of any Act governing occupational health and safety; b) with due regard to the health and safety of employees; c) with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87(1)(a); and d) with due regard to the family responsibilities of employees. Chapter Two: Regulation of working time 8. Interpretation of day For the purposes of sections 9 to 16, "day" means a period of 24 hours measured from the time when the employee normally commences work, and `daily' has a corresponding meaning. Chapter Two: Regulation of working time 9. Ordinary hours of work 1) Subject to this Chapter, an employer may not require or permit an employee to work more than-- a) 45 hours in any week; and b) nine hours in any day if the employee works for five days or fewer in a week; c) eight hours in any day if the employee works on more than five days in a week. 2) An employee's ordinary hours of work in terms of subsection (1) may by agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work. 3) Schedule 1 establishes procedures for the progressive reduction of the maximum ordinary hours of work to a maximum of 40 ordinary hours of work per week and eight ordinary hours of work per day. Chapter Two: Regulation of working time 10. Overtime 1) Subject to this Chapter, an employer may not require or permit an employee-- a) to work overtime except in accordance with an agreement; b) to work more than ten hours' overtime a week. 1A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day. 2) An employer must pay an employee at least one and one-half times the employee's wage for overtime worked. 3) Despite subsection (2), an agreement may provide for an employer to-- a) pay an employee not less than the employee's ordinary wage for overtime worked and grant the employee at least 30 minutes' time off on full pay for every hour of overtime worked; or b) grant an employee at least 90 minutes' paid time off for each hour of overtime worked. 4) a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it. b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months. 5) An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year. 6) a) A collective agreement may increase the maximum permitted overtime to 15 hours a week. b) A collective agreement contemplated in paragraph (a) may not apply for more than two months in any period of 12 months. Chapter Two: Regulation of working time 11. Compressed working week 1) An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of section 14, without receiving overtime pay. 2) An agreement in terms of subsection (1) may not require or permit an employee to work-- a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Chapter Two: Regulation of working time 12. Averaging of hours of work 1) Despite sections 9(1) and (2) and 10(1)(b), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement. 2) An employer may not require or permit an employee who is bound by a collective agreement in terms of subsection (1) to work more than-- a) an average of 45 ordinary hours of work in a week over the agreed period; b) an average of five hours' overtime in a week over the agreed period. 3) A collective agreement in terms of subsection (1) lapses after 12 months. 4) Subsection (3) only applies to the first two collective agreements concluded in terms of subsection (1). Chapter Two: Regulation of working time 13. Determination of hours of work by Minister 1) Despite this Chapter, the Minister, on grounds of health and safety, may prescribe by regulation the maximum permitted hours of work, including overtime, that any category of employee may work-- a) daily, weekly or during any other period specified in the regulation; and b) during a continuous period without a break. 2) A regulation in terms of subsection (1) may not prescribe maximum hours in excess of those permitted in sections 9 and 10. 3) A regulation in terms of subsection (1) may be made only-- a) on the advice of the chief inspector appointed in terms of section 27 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), or the chief inspector appointed in terms of section 48 of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996); and b) after consulting the Commission. Chapter Two: Regulation of working time 14. Meal intervals 1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. 2) During a meal interval the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee. 3) An employee must be remunerated-- a) for a meal interval in which the employee is required to work or is required to be available for work; and b) for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated. 4) For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes. 5) An agreement in writing may-- a) reduce the meal interval to not less than 30 minutes; b) dispense with a meal interval for an employee who works fewer than six hours on a day. Chapter Two: Regulation of working time 15. Daily and weekly rest period 1) An employer must allow an employee-- a) a daily rest period of at least twelve consecutive hours between ending and recommencing work; and b) a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday. 2) A daily rest period in terms of subsection (1)(a) may, by written agreement, be reduced to 10 hours for an employee-- a) who lives on the premises at which the workplace is situated; and b) whose meal interval lasts for at least three hours. 3) Despite subsection (1)(b), an agreement in writing may provide for-- a) a rest period of at least 60 consecutive hours every two weeks; or b) an employee's weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently. Chapter Two: Regulation of working time 16. Pay for work on Sundays 1) An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one-half times the employee's wage for each hour worked. 2) If an employee works less than the employee's ordinary shift on a Sunday and the payment that the employee is entitled to in terms of subsection (1) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage. 3) Despite subsections (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subsections (1) and (2). 4) Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of section 9(1) and (2), but is taken into account in calculating the overtime worked by the employee in terms of section 10(1)(b). 5) If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. 6) a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it. b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months. Chapter Two: Regulation of working time 17. Night work 1) In this section, "night work" means work performed after 18:00 and before 06:00 the next day. 2) An employer may only require or permit an employee to perform night work, if so agreed, and if-- a) the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift. 3) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must-- a) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands-- i) of any health and safety hazards associated with the work that the employee is required to perform; and ii) of the employee's right to undergo a medical examination in terms of paragraph (b), b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards-- i) before the employee starts, or within a reasonable period of the employee starting, such work; and ii) at appropriate intervals while the employee continues to perform such work; and c) transfer the employee to suitable day work within a reasonable time if-- i) the employee suffers from a health condition associated with the performance of night work; and ii) it is practicable for the employer to do so. 4) For the purposes of subsection (3), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year. 5) The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations for employees who perform night work." Chapter Two: Regulation of working time 18. Public holidays 1) An employer may not require an employee to work on a public holiday except in accordance with an agreement. 2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay-- a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day; b) an employee who does work on the public holiday-- i) at least double the amount referred to in paragraph (a); or ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day. 3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to-- a) the employee's ordinary daily wage; plus b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method. 4) An employer must pay an employee for a public holiday on the employee's usual pay day. 5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Chapter Three: Leave 19. Application of this Chapter 1) This Chapter does not apply to an employee who works less than 24 hours a month for an employer. 2) Unless an agreement provides otherwise, this Chapter does not apply to leave granted to an employee in excess of the employee's entitlement under this Chapter. Chapter Three: Leave 20. Annual leave 1) In this Chapter, "annual leave cycle" means the period of 12 months' employment with the same employer immediately following-- a) an employee's commencement of employment; or b) the completion of that employee's prior leave cycle. 2) An employer must grant an employee at least-- a) 21 consecutive days' annual leave on full remuneration in respect of each annual leave cycle; or b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid; c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid. 3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection (2) on consecutive days. 4) An employer must grant annual leave not later than six months after the end of the annual leave cycle. 5) An employer may not require or permit an employee to take annual leave during-- a) any other period of leave to which the employee is entitled in terms of this Chapter; or b) any period of notice of termination of employment. 6) Despite subsection (5), an employer must permit an employee, at the employee's written request, to take leave during a period of unpaid leave. 7) An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave on full remuneration granted to the employee at the employee's request in that leave cycle. 8) 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 on which the employee would ordinarily have worked. 9) An employer may not require or permit an employee to work for the employer during any period of annual leave. 10) Annual leave must be taken-- a) in accordance with an agreement between the employer and employee; or b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section. 11) An employer may not pay an employee instead of granting paid leave in terms of this section except-- a) on termination of employment; and b) in accordance with section 40(b) and (c). Chapter Three: Leave 21. Pay for annual leave 1) 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-- a) at the employee's rate of remuneration immediately before the beginning of the period of annual leave; and b) in accordance with section 35. 2) An employer must pay an employee leave pay-- a) before the beginning of the period of leave; or b) by agreement, on the employee's usual pay day. Chapter Three: Leave 22. Sick leave 1) In this Chapter, "sick leave cycle" means the period of 36 months' employment with the same employer immediately following-- a) an employee's commencement of employment; or b) the completion of that employee's prior sick leave cycle. 2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. 4) During an employee's first sick leave cycle, an employer may reduce the employee's entitlement to sick leave in terms of subsection (2) by the number of days sick leave taken in terms of subsection (3). 5) Subject to section 23, an employer must pay an employee for a day's sick leave-- a) the wage the employee would ordinarily have received for work on that day; and b) on the employee's usual pay day. 6) An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this section if-- a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and b) the employee's entitlement to pay-- i) for any day's sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and ii) for sick leave over the sick leave cycle is at least equivalent to the employee's entitlement in terms of subsection (2). Chapter Three: Leave 23. Proof of incapacity 1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury. 2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament. 3) If it is not reasonably practicable for an employee who lives on the employer's premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate. Chapter Three: Leave 24. Application to occupational accidents or diseases Sections 22 and 23 do not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), or the Occupational Diseases in Mines and Works Act, 1973 (Act No. 78 of 1973), except in respect of any period during which no compensation is payable in terms of those Acts. Chapter Three: Leave 25. Maternity leave 1) An employee is entitled to at least four consecutive months' maternity leave. 2) An employee may commence maternity leave-- a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child. 3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. 5) 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-- a) commence maternity leave; and b) return to work after maternity leave. 6) Notification in terms of subsection (5) must be given-- a) at least four weeks before the employee intends to commence maternity leave; b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) The payment of maternity benefits will be determined by the Minister subject to the provisions of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966). Chapter Three: Leave 26. Protection of employees before and after birth of a child 1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child. 2) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if-- a) the employee is required to perform night work, as defined in section 17(1) or her work poses a danger to her health or safety or that of her child; and b) it is practicable for the employer to do so. Chapter Three: Leave 27. Family responsibility leave 1) This section applies to an employee- a) who has been in employment with an employer for longer than four months; and b) who works for at least four days a week for that employer. 2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days' paid leave, which the employee is entitled to take-- a) when the employee's child is born; b) when the employee's child is sick; or c) in the event of the death of-- i) the employee's spouse or life partner; or ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 3) Subject to subsection (5), an employer must pay an employee for a day's family responsibility leave-- a) the wage the employee would ordinarily have received for work on that day; and b) on the employee's usual pay day. 4) An employee may take family responsibility leave in respect of the whole or a part of a day. 5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subsection [1](2) for which the leave was required. 6) An employee's unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues. 7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section. Chapter Four: Particulars of employment and remuneration 28. Application of this Chapter 1) This Chapter does not apply to an employee who works less than 24 hours a month for an employer. 2) Sections 29(1)(n), (o) and (p), 30, 31 and 33 do not apply to-- a) an employer who employs fewer than five employees; and b) [deleted by the Basic Conditions of Employment Act, No. 11 of 2002] Chapter Four: Particulars of employment and remuneration 29. Written particulars of employment 1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing-- a) the full name and address of the employer; b) the name and occupation of the employee, or a brief description of the work for which the employee is employed; c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this; d) the date on which the employment began; e) the employee's ordinary hours of work and days of work; f) the employee's wage or the rate and method of calculating wages; g) the rate of pay for overtime work; h) any other cash payments that the employee is entitled to; i) any payment in kind that the employee is entitled to and the value of the payment in kind; j) how frequently remuneration will be paid; k) any deductions to be made from the employee's remuneration; l) the leave to which the employee is entitled; m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate; n) a description of any council or sectoral determination which covers the employer's business; o) any period of employment with a previous employer that counts towards the employee's period of employment; p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained. 2) When any matter listed in subsection (1) changes-- a) the written particulars must be revised to reflect the change; and b) the employee must be supplied with a copy of the document reflecting the change. 3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 4) Written particulars in terms of this section must be kept by the employer for a period of three years after the termination of employment. Chapter Four: Particulars of employment and remuneration 30. Informing employees of their rights An employer must display at the workplace where it can be read by employees a statement in the prescribed form of the employee's rights under this Act in the official languages which are spoken in the workplace. Chapter Four: Particulars of employment and remuneration 31. Keeping of records 1) Every employer must keep a record containing at least the following information: a) The employee's name and occupation; b) the time worked by each employee; c) the remuneration paid to each employee; d) the date of birth of any employee under 18 years of age; and e) any other prescribed information. 2) A record in terms of subsection (1) must be kept by the employer for a period of three years from the date of the last entry in the record. 3) No person may make a false entry in a record maintained in terms of subsection (1). 4) An employer who keeps a record in terms of this section is not required to keep any other record of time worked and remuneration paid as required by any other employment law. Chapter Four: Particulars of employment and remuneration 32. Payment of remuneration 1) An employer must pay to an employee any remuneration that is paid in money-- a) in South African currency; b) daily, weekly, fortnightly or monthly; and c) in cash, by cheque or by direct deposit into an account designated by the employee. 2) Any remuneration paid in cash or by cheque must be given to each employee-- a) at the workplace or at a place agreed to by the employee; b) during the employee's working hours or within 15 minutes of the commencement or conclusion of those hours; and c) in a sealed envelope which becomes the property of the employee. 3) An employer must pay remuneration not later than seven days after-- a) the completion of the period for which the remuneration is payable; or b) the termination of the contract of employment. 4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund. Chapter Four: Particulars of employment and remuneration 33. Information about remuneration 1) An employer must give an employee the following information in writing on each day the employee is paid: a) The employer's name and address; b) the employee's name and occupation; c) the period for which the payment is made; d) the employee's remuneration in money; e) the amount and purpose of any deduction made from the remuneration; f) the actual amount paid to the employee; and g) if relevant to the calculation of that employee's remuneration-- i) the employee's rate of remuneration and overtime rate; ii) the number of ordinary and overtime hours worked by the employee during the period for which the payment is made; iii) the number of hours worked by the employee on a Sunday or public holiday during that period; and iv) if an agreement to average working time has been concluded in terms of section 12, the total number of ordinary and overtime hours worked by the employee in the period of averaging. 2) The written information required in terms of subsection (1) must be given to each employee-- a) at the workplace or at a place agreed to by the employee; and b) during the employee's ordinary working hours or within 15 minutes of the commencement or conclusion of those hours. Chapter Four: Particulars of employment and remuneration 34. Deductions and other acts concerning remuneration 1) An employer may not make any deduction from an employee's remuneration unless-- a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award. 2) A deduction in terms of subsection (1)(a) may be made to reimburse an employer for loss or damage only if-- a) the loss or damage occurred in the course of employment and was due to the fault of the employee; b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; c) the total amount of the debt does not exceed the actual amount of the loss or damage; and d) the total deductions from the employee's remuneration in terms of this subsection do not exceed one-quarter of the employee's remuneration in money. 3) A deduction in terms of subsection (1)(a) in respect of any goods purchased by the employee must specify the nature and quantity of the goods. 4) An employer who deducts an amount from an employee's remuneration in terms of subsection (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award. 5) An employer may not require or permit an employee to-- a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration; b) acknowledge receipt of an amount greater than the remuneration actually received. Chapter Four: Particulars of employment and remuneration 34A. Payment of contributions to benefit funds 1) For the purposes of this section, a benefit fund is a pension, provident, retirement, medical aid or similar fund. 2) An employer that deducts from an employee's remuneration any amount for payment to a benefit fund must pay the amount to the fund within seven days of the deduction being made. 3) Any contribution that an employer is required to make to a benefit fund on behalf of an employee, that is not deducted from the employee's remuneration, must be paid to the fund within seven days of the end of the period in respect of which the payment is made. 4) This section does not affect any obligation on an employer in terms of the rules of a benefit fund to make any payment within a shorter period than that required by subsections (2) or (3). Chapter Four: Particulars of employment and remuneration 35. Calculation of remuneration and wages Please refer to the proposed schedule on calculation of remuneration. 1) An employee's wage is calculated by reference to the number of hours the employee ordinarily works. 2) For the purposes of calculating the wage of an employee by time, an employee is deemed ordinarily to work-- a) 45 hours in a week, unless the employee ordinarily works a lesser number of hours in a week; b) nine hours in a day, or seven and a half hours in the case of an employee who works for more than five days a week, or the number of hours that an employee works in a day in terms of an agreement concluded in accordance with section 11, unless the employee ordinarily works a lesser number of hours in a day. 3) An employee's monthly remuneration or wage is four and one-third times the employee's weekly remuneration or wage, respectively. 4) If an employee's remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee's remuneration or wage fluctuates significantly from period to period, any payment to that employee in terms of this Act must be calculated by reference to the employee's remuneration or wage during-- a) the preceding 13 weeks; or b) if the employee has been in employment for a shorter period, that period. 5) a) The Minister may, by notice in the Gazette, after consultation with the Commission and NEDLAC, determine whether a particular category of payment, whether in money or in kind, forms part of an employee's remuneration for the purpose of any calculation made in terms of this Act. b) Without limiting the Minister's powers in terms of paragraph (a), the Minister may- i) determine the value, or a formula for determining the value, of any payment that forms part of remuneration; ii) place a maximum or minimum value on any payment that forms part of remuneration; and iii) for the purposes of any calculation, differentiate between different categories of payment and different sectors. c) Before the Minister issues a notice in terms of paragraph (a), the Minister must- i) publish a draft of the proposed notice in the Gazette; and ii) invite interested parties to submit written representations on the draft notice within a reasonable period. Chapter Five: Termination of employment 36. Application of this Chapter This Chapter does not apply to an employee who works less than 24 hours in a month for an employer. Chapter Five: Termination of employment 37. Notice of termination of employment 1) Subject to section 38, a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than-- a) one week, if the employee has been employed for six months or less; b) two weeks, if the employee has been employed for more than six months but not more than one year; c) four weeks, if the employee-- i) has been employed for one year or more; or ii) is a farm worker or domestic worker who has been employed for more than six months. 2) a) A collective agreement may permit a notice period shorter than that required by subsection (1). b) Despite paragraph (a), a collective agreement may permit the notice period of four weeks required by subsection (1)(c)(i) to be reduced to not less than two weeks. 3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer. 4) a) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee. b) If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands. 5) Notice of termination of a contract of employment given by an employer must-- a) not be given during any period of leave to which the employee is entitled in terms of Chapter Three; and b) not run concurrently with any period of leave to which the employee is entitled in terms of Chapter Three, except sick leave. 6) Nothing in this section affects the right-- a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; and b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law. Chapter Five: Termination of employment 38. Payment instead of notice 1) Instead of giving an employee notice in terms of section 37, an employer may pay the employee the remuneration the employee would have received, calculated in accordance with section 35, if the employee had worked during the notice period. 2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the remuneration referred to in subsection (1), unless the employer and employee agree otherwise. Chapter Five: Termination of employment 39. Employees in accommodation provided by employers 1) If the employer of an employee who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer terminates the contract of employment of that employee-- a) before the date on which the employer was entitled to do so in terms of section 37; or b) in terms of section 38, the employer is required to provide the employee with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated. 2) If an employee elects to remain in accommodation in terms of subsection (1) after the employer has terminated the employee's contract of employment in terms of section 38, the remuneration that the employer is required to pay in terms of section 38 is reduced by that portion of the remuneration that represents the agreed value of the accommodation for the period that the employee remains in the accommodation. Chapter Five: Termination of employment 40. Payments on termination On termination of employment, an employer must pay an employee-- a) for any paid time off that the employee is entitled to in terms of section 10(3) or 16(3) that the employee has not taken; b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken; and c) if the employee has been in employment longer than four months, in respect of the employee's annual leave entitlement during an incomplete annual leave cycle as defined in section 20(1)-- i) one day's remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or ii) remuneration calculated on any basis that is at least as favourable to the employee as that calculated in terms of subparagraph (i). Chapter Five: Termination of employment 41. Severance pay 1) For the purposes of this section, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. 2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements or whose contract of employment terminates or is terminated in terms of section 38 of the Insolvency Act, 1936 (Act No. 24 of 1936), severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with section 35. 3) The Minister may vary the amount of severance pay in terms of subsection (2) by notice in the Gazette. This variation may only be done after consulting NEDLAC and the Public Service Coordinating Bargaining Council established under Schedule 1 of the Labour Relations Act, 1995. 4) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subsection (2). 5) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law. 6) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to-- a) a council, if the parties to the dispute fail within the registered scope of that council; or b) the CCMA, if no council has jurisdiction. 7) The employee who refers the dispute to the council or the CCMA must satisfy it that a copy of the referral has been served on all the other parties to the dispute. 8) The council or the CCMA must attempt to resolve the dispute through conciliation. 9) If the dispute remains unresolved, the employee may refer it to arbitration. 10) If the Labour Court is adjudicating a dispute about a dismissal based on the employer's operational requirements, the Court may inquire into and determine the amount of any severance pay to which the dismissed employee may be entitled and the Court may make an order directing the employer to pay that amount. Chapter Five: Termination of employment 42. Certificate of service On termination of employment an employee is entitled to a certificate of service stating-- a) the employee's full name; b) the name and address of the employer; c) a description of any council or sectoral employment standard by which the employer's business is covered; d) the date of commencement and date of termination of employment; e) the title of the job or a brief description of the work for which the employee was employed at date of termination; f) the remuneration at date of termination; and g) if the employee so requests, the reason for termination of employment. Chapter Six: Prohibition of Employment of Children and Forced Labour 43. Prohibition of employment of children 1) No person may employ a child-- a) who is under 15 years of age; or b) who is under the minimum school-leaving age in terms of any law, if this is 15 or older. 2) No person may employ a child in employment-- a) that is inappropriate for a person of that age; b) that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development. 3) A person who employs a child in contravention of subsection (1) or (2) commits an offence. Chapter Six: Prohibition of Employment of Children and Forced Labour 44. Employment of children of 15 years or older 1) Subject to section 43(2), the Minister may, on the advice of the Commission, make regulations to prohibit or place conditions on the employment of children who are at least 15 years of age and no longer subject to compulsory schooling in terms of any law. 2) A person who employs a child in contravention of subsection (1) commits an offence. Chapter Six: Prohibition of Employment of Children and Forced Labour 45. Medical examinations The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations of children in employment. Chapter Six: Prohibition of Employment of Children and Forced Labour 46. Prohibitions It is an offence to-- a) assist an employer to employ a child in contravention of this Act; or b) discriminate against a person who refuses to permit a child to be employed in contravention of this Act. Chapter Six: Prohibition of Employment of Children and Forced Labour 47. Evidence of age In any proceedings in terms of this Act, if the age of an employee is a relevant factor for which insufficient evidence is available, it is for the party who alleges that the employment complied with the provisions of this Chapter to prove that it was reasonable for that party to believe, after investigation, that the person was not below the permitted age in terms of section 43 or 44. Chapter Six: Prohibition of Employment of Children and Forced Labour 48. Prohibition of forced labour 1) Subject to the Constitution, all forced labour is prohibited. 2) No person may for his or her own benefit or for the benefit of someone else, cause, demand or impose forced labour in contravention of subsection (1). 3) A person who contravenes subsection (1) or (2) commits an offence. 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-- a) reduce the protection afforded to employees by sections 7, 9 and any regulation made in terms of section 13; b) reduce the protection afforded to employees who perform night work in terms of section 17(3) and (4); c) reduce an employee's annual leave in terms of section 20 to less than two weeks; d) reduce an employee's entitlement to maternity leave in terms of section 25; e) reduce an employee's entitlement to sick leave in terms of sections 22, 23 and 24; f) 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-- a) a contract of employment or agreement between an employer and an employee contrary to the provisions of a collective agreement; b) a collective agreement contrary to the provisions of a collective agreement concluded in a bargaining council. Chapter Seven: Variation of Basic Conditions of Employment 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-- a) any category of employees or category of employers; or b) any employer or employee in respect of whom an application is made by-- i) the employer; ii) the registered employers' organisation; iii) the employer and the registered employers' organisation. 2) A determination in terms of subsection (1)- a) 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 b) 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. 2A) A determination in terms of subsection (1) may only be made in respect of section 9 if- a) 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 b) the determination- i) has been agreed to in a collective agreement; ii) 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 iii) applies to the agricultural sector or the private security sector. 3) A determination in terms of subsection (1)(a) must-- a) be made on the advice of the Commission; and b) be issued by a notice in the Gazette. 4) The Minister may request the Commission-- a) to advise on any application made in terms of subsection (1)(b); b) 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) a) 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. b) If no consent contemplated in paragraph (a) is obtained, a determination in terms of subsection (1)(b) may be issued if-- i) 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 ii) 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)-- a) may be issued on any conditions and for a period determined by the Minister; b) 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; c) must be issued in a notice in the prescribed form if the determination is made in respect of an application made by an employer; d) 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) a) 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). b) For the purposes of paragraph (a), an affected party is-- i) an employer or employer's organisation that is covered by the determination; ii) 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-- a) display a copy of the notice conspicuously at the workplace where it can be read by the employees to whom the determination applies; b) notify each employee in writing of the fact of the determination and of where a copy of the notice has been displayed; and c) give a copy of the notice to every-- i) registered trade union representing those employees; ii) trade union representative representing those employees; and iii) employee who requests a copy. Chapter Eight: Sectoral Determinations 51. Sectoral determination 1) The Minister may make a sectoral determination establishing basic conditions of employment for employees in a sector and area. 2) A sectoral determination must be made in accordance with this Chapter and by notice in the Gazette. Chapter Eight: Sectoral Determinations 52. Investigation 1) Before making a sectoral determination, the Minister must direct the Director-General to investigate conditions of employment in the sector and area concerned. 2) The Minister must determine terms of reference for the investigation, which must include-- a) the sector and area to be investigated; b) the categories or classes of employees to be included in the investigation; and c) the matters to be investigated, which may include any matter listed in section 55(4). 3) The Minister must publish a notice in the Gazette setting out the terms of reference of the investigation and inviting written representations by members of the public. 4) If an organisation representing employers or employees in a sector and area makes a written request to the Minister to investigate conditions of employment in that sector and area, the Minister must either-- a) direct the Director-General to conduct an investigation; or b) request the Commission to advise the Minister on whether the requested investigation ought to be conducted. Chapter Eight: Sectoral Determinations 53. Conduct of investigation 1) For the purposes of conducting an investigation in terms of section 52(1), the Director-General may-- a) question any person who may be able to provide information relevant to any investigation; or b) require, in writing, any employer or employee in a sector and area that is being investigated or any other person to furnish any information, book, document or object that is material to the investigation within a specified period, which must be reasonable. 2) A person may not refuse to answer any relevant question by the Director-General that he or she is legally obliged to answer. Chapter Eight: Sectoral Determinations 54 Preparation of report 1) On completion of an investigation, and after considering any representations made by members of the public, the Director-General must prepare a report. 2) A copy of the report must be submitted to the Commission for its consideration. 3) When advising the Minister on the publication of a sectoral determination, the Commission must consider in respect of the sector and area concerned-- a) the report prepared in terms of subsection (1); b) the ability of employers to carry on their business successfully; c) the operation of small, medium or micro-enterprises, and new enterprises; d) the cost of living; e) the alleviation of poverty; f) conditions of employment; g) wage differentials and inequality; h) the likely impact of any proposed condition of employment on current employment or the creation of employment; i) the possible impact of any proposed conditions of employment on the health, safety or welfare of employees; j) any other relevant information made available to the Commission. Chapter Eight: Sectoral Determinations 55. Making of sectoral determination 1) After considering the report and recommendations of the Commission contemplated in section 54(4), the Minister may make a sectoral determination for one or more sector and area. 2) If the Minister does not accept a recommendation of the Commission made in terms of section 54(4), the Minister must refer the matter to the Commission for its reconsideration indicating the matters on which the Minister disagrees with the Commission. 3) After considering the further report and recommendations of the Commission, the Minister may make a sectoral determination. 4) A sectoral determination may in respect to the sector and area concerned-- a) set minimum terms and conditions of employment, including minimum rates of remuneration; b) provide for the adjustment of minimum rates of remuneration; c) regulate the manner, timing and other conditions of payment of remuneration; d) prohibit or regulate payment of remuneration in kind; e) require employers to keep employment records; f) require employers to provide records to their employees; g) prohibit or regulate task-based work, piecework, home work and contract work; h) set minimum standards for housing and sanitation for employees who reside on their employers' premises; i) regulate payment of traveling and other work-related allowances; j) specify minimum conditions of employment for trainees; k) specify minimum conditions of employment for persons other than employees; l) regulate training and education schemes; m) regulate pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds; and n) regulate any other matter concerning remuneration or other terms or conditions of employment. 5) Any provisions of a sectoral determination may apply to all or some of the employers and employees in the sector and area concerned. 6) A sectoral determination in terms of subsection (1)-- a) may not be made in respect of section 7, 43(2), or 44 or 48; b) 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; c) may not reduce the protection afforded to employees by sections 17(3) and (4) and 25, or a regulation made in terms of section 13. d) may vary the basic conditions of employment in section 9 in the circumstances contemplated by section 50(2A). 7) The Minister may not publish a sectoral determination-- a) covering employees and employers who are bound by a collective agreement concluded at a bargaining council; b) regulating any matter in a sector and area in which a statutory council is established and in respect of which that statutory council has concluded a collective agreement; c) regulating any matter regulated by a sectoral determination for a sector and area which has been in effect for less than 12 months. Chapter Eight: Sectoral Determinations 56. Period of operation of sectoral determination 1) The provisions of a sectoral determination remain binding until they are amended or superseded by a new or amended sectoral determination, or they are cancelled or suspended by the Minister. 2) If a collective agreement contemplated in section 55(6)(a) or (b) is concluded, the provisions of a sectoral determination cease to be binding upon employers and employees covered by the agreement. 3) The Minister may, by notice in the Gazette-- a) cancel or suspend any provision of a sectoral determination, either in the sector and area as a whole or in part of the sector or in a specific area; or b) correct or clarify the meaning of any provision of a sectoral determination as previously published. 4) Before publishing a notice of cancellation or suspension in terms of subsection (3)(a) the Minister must, by notice in the Gazette, announce the intention to do so, and allow an opportunity for public comment. Chapter Eight: Sectoral Determinations 57. Legal effect of sectoral determination If a matter regulated in this Act is also regulated in terms of a sectoral determination, the provision in the sectoral determination prevails. Chapter Eight: Sectoral Determinations 58. Employer to keep a copy of sectoral determination Unless a sectoral determination provides otherwise, every employer on whom the sectoral determination is binding must-- a) keep a copy of that sectoral determination available in the workplace at all times; b) make that copy available for inspection by an employee; and c) give a copy of that sectoral determination-- i) to an employee who has paid the prescribed fee; and ii) free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum. Chapter Nine: Employment Conditions Commission 59. Establishment and functions of Employment Conditions Commission 1) The Employment Conditions Commission is hereby established. 2) The functions of the Commission are to advise the Minister-- a) on sectoral determinations in terms of Chapter Eight; b) on any matter concerning basic conditions of employment; c) on any matter arising out of the application of this Act; d) on the effect of the policies of the government on employment; e) on trends in collective bargaining and whether any of those trends undermine the purpose of this Act; f) and the Minister for Welfare and Population Development, on any matter concerning the employment of children, including the review of section 43; g) and the Minister for the Public Service and Administration, on any matter concerning basic conditions of employment in the public service. 3) The Commission may draw up rules for the conduct of its meetings and public hearings. 4) Subject to the laws governing the public service, the Minister must provide the Commission with the staff that the Minister considers necessary for the performance of its functions. 5) The Minister must direct the Director-General to undertake research that is required to enable the Commission to perform its functions. 6) The expenses of the Commission are to be met by money appropriated by Parliament for that purpose and which is subject to audit by the Auditor-General, referred to in section 188 of the Constitution. Chapter Nine: Employment Conditions Commission 60. Composition of Commission 1) The Minister must, after consultation with NEDLAC, appoint as members of the Commission three persons who are knowledgeable about the labour market and conditions of employment, including the conditions of employment of vulnerable and unorganised workers, and designate one of them as the chairperson. 2) The Minister must, in addition, appoint to the Commission-- a) one member and one alternate member nominated by the voting members of NEDLAC representing organised labour; b) one member and one alternate member nominated by the voting members of NEDLAC representing organised business. 3) The chairperson and members of the Commission-- a) must be citizens or permanent residents of the Republic; b) must act impartially when performing any function of the Commission; c) may not engage in any activity that may undermine the integrity of the Commission; and d) must recuse themselves from advising the Minister on any matter in respect of which they have a direct financial interest or any other conflict of interest. 4) The Minister must determine-- a) the term of office of the chairperson and members of the Commission, which may not be more than three years; b) with the concurrence of the Minister of Finance, the remuneration and allowances to be paid to members of the Commission; and c) any other conditions of appointment not provided for in this section. 5) The Minister must appoint a member to act as chairperson whenever-- a) the chairperson is absent from the Republic or from duty, or for any reason is temporarily unable to function as chairperson; or b) the office of chairperson is vacant. 6) A person whose period of office as the chairperson or a member of the Commission has expired is eligible for reappointment. 7) The chairperson or a member of the Commission may resign in writing. 8) The Minister may remove the chairperson or a member of the Commission from office for-- a) serious misconduct; b) permanent incapacity; or c) engaging in any activity that may undermine the integrity of the Commission. Chapter Nine: Employment Conditions Commission 61. Public hearings The Commission may hold public hearings at which it may permit members of the public to make oral representations on any matter that the Commission is considering in terms of section 59(2). Chapter Nine: Employment Conditions Commission 62. Report by Commission 1) The Commission's advice to the Minister must be in the form of a written report. 2) The Commission must, when performing any function in terms of section 59(2)(b) to (e), take into account the considerations set out in section 54(3) to the extent that they are appropriate. 3) The members of the Commission must endeavour to prepare a unanimous report to the Minister. If the members are not able to prepare a unanimous report, each member is entitled to have his or her views reflected in the report. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 63. Appointment of labour inspectors 1) The Minister may-- a) appoint any person in the public service as a labour inspector; b) designate any person in the public service, or any person appointed as a designated agent of a bargaining council in terms of section 33 of the Labour Relations Act, 1995, to perform any of the functions of a labour inspector. 2) Any person appointed under subsection (1) must perform his or her functions in terms of this Chapter, subject to the direction and control of the Minister. 3) The Minister must provide each labour inspector with a signed certificate in the prescribed form stating-- a) that the person is a labour inspector; b) which legislation that labour inspector may monitor and enforce; and c) which of the functions of a labour inspector that person may perform. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 64. Functions of labour inspectors 1) A labour inspector appointed under section 63(1) may promote, monitor and enforce compliance with an employment law by-- a) advising employees and employers of their rights and obligations in terms of an employment law; b) conducting inspections in terms of this Chapter; c) investigating complaints made to a labour inspector; d) endeavouring to secure compliance with an employment law by securing undertakings or issuing compliance orders; and e) performing any other prescribed function. 2) A labour inspector may not perform any function in terms of this Act in respect of an undertaking in respect of which the labour inspector has, or may reasonably be perceived to have, any personal, financial or similar interest. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 65. Powers of entry 1) In order to monitor and enforce compliance with an employment law, a labour inspector may, without warrant or notice, at any reasonable time, enter-- a) any workplace or any other place where an employer carries on business or keeps employment records, that is not a home; b) any premises used for training in terms of the Manpower Training Act, 1981 (Act No. 56 of 1981); or c) any private employment office registered under section 15 of the Guidance and Placement Act, 1981 (Act No. 62 of 1981). 2) A labour inspector may enter a home or any place other than a place referred to in subsection (1) only-- a) with the consent of the owner or occupier; or b) if authorised to do so in writing in terms of subsection (3). 3) The Labour Court may issue an authorisation contemplated in subsection (2) only on written application by a labour inspector who states under oath or affirmation the reasons for the need to enter a place in order to monitor or enforce compliance with any employment law. 4) If it is practical to do so, the employer and a trade union representative must be notified that the labour inspector is present at a workplace and of the reason for the inspection. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 66. Powers to question and inspect 1) In order to monitor or enforce compliance with an employment law, a labour inspector may-- a) require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on any matter to which an employment law relates, and require that the disclosure be made under oath or affirmation; b) inspect, and question a person about, any record or document to which an employment law relates; c) copy any record or document referred to in paragraph (b), or remove these to make copies or extracts; d) require a person to produce or deliver to a place specified by the labour inspector any record or document referred to in paragraph (b) for inspection; e) inspect, question a person about, and if necessary remove, any article, substance or machinery present at a place referred to in section 65; f) inspect or question a person about any work performed; and g) perform any other prescribed function necessary for monitoring or enforcing compliance with an employment law. 2) A labour inspector may be accompanied by an interpreter and any other person reasonably required to assist in conducting the inspection. 3) A labour inspector must-- a) produce on request the certificate referred to in section 63(3); b) provide a receipt for any record, document, article, substance or machinery removed in terms of subsection (1)(c) or (e); and c) return anything removed within a reasonable period of time. 4) The powers provided for in this Part are in addition to any power of a labour inspector in terms of any other employment law. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 67. Co-operation with Labour inspectors 1) Any person who is questioned by a labour inspector in terms of section 66 must answer all relevant questions lawfully put to that person truthfully and to the best of his or her ability. 2) Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a labour inspector to perform the labour inspector's functions effectively. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 68. Securing an undertaking 1) A labour inspector who has reasonable grounds to believe that an employer has not complied with any provision of this Act must endeavour to secure a written undertaking by the employer to comply with the provision. 1A) A labour inspector may endeavour to secure a written undertaking by the employer to comply with subsection (1) either by - a) meeting with the employer or a representative of the employer; or b) serving a document, in the prescribed form, on the employer. 2) In endeavouring to secure the undertaking, the labour inspector-- a) may seek to obtain agreement between the employer and employee as to any amount owed to the employee in terms of this Act; b) may arrange for payment to an employee of any amount paid as a result of an undertaking; c) may, at the written request of an employee, receive payment on behalf of the employee; and d) must provide a receipt for any payment received in terms of paragraph (c). Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 69. Compliance order 1) A labour inspector who has reasonable grounds to believe that an employer has not complied with a provision of this Act may issue a compliance order. 2) A compliance order must set out-- a) the name of the employer, and the location of every workplace, to which it applies; b) any provision of this Act that the employer has not complied with, and details of the conduct constituting non-compliance; c) any amount that the employer is required to pay to an employee; d) any written undertaking by the employer in terms of section 68(1) and any failure by the employer to comply with a written undertaking; e) any steps that the employer is required to take including, if necessary, the cessation of the contravention in question and the period within which those steps must be taken; and f) the maximum fine that may be imposed upon the employer in accordance with Schedule Two for a failure to comply with a provision of this Act. 3) a) A labour inspector must serve a copy of the compliance order on the employer named in it, and on each employee affected by it unless this is impractical, and on a representative of the employees. b) The failure to serve a copy of a compliance order on any employee or any representative of employees in terms of paragraph (a) does not invalidate the order. 4) The employer must display a copy of the compliance order prominently at a place accessible to the affected employees at each workplace named in it. 5) An employer must comply with the compliance order within the time period stated in the order unless the employer objects in terms of section 71. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 70. Limitations A labour inspector may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with a provision of this Act if-- a) the employee is covered by a collective agreement that provides for resolution by arbitration of disputes concerning amounts owing in terms of this Act; b) the employee is employed in a category of employees mentioned in section 6(1)(a) or in respect of which a notice has been issued in terms of section 6(3); c) any proceedings have been instituted for the recovery of that amount or, if proceedings have been instituted, those proceedings have been withdrawn; or d) that amount has been payable by the employer to the employee for longer than 12 months before the date on which a complaint was made to a labour inspector by or on behalf of the employee or, if no complaint was made, the date on which a labour inspector first endeavoured to secure a written undertaking by the employer in terms of section 68. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 71. Objections to compliance order 1) An employer may object to a compliance order by making representations in writing to the Director-General within 21 days of receipt of that order. 2) If the employer shows good cause at any time, the Director-General may permit the employer to object after the period of 21 days has expired. 3) After considering any representations by the employer and any other relevant information, the Director-General-- a) may confirm, modify or cancel an order or any part of an order; and b) must specify the period within which the employer must comply with any part of an order that is confirmed or modified. 4) The information that the Director-General must consider includes-- a) any evidence concerning the employer's compliance record; b) the likelihood that the employer was aware of the relevant provisions; and c) the steps taken by the employer to ensure compliance with the relevant provision. 5) The Director-General must serve a copy of the order made in terms of subsection (3) on the employer and on each employee affected by it or, if this is impractical, on a representative of the employees. 6) If the Director-General confirms or modifies the order or any part of the order, the employer must comply with that order within the time period specified in that order. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 72. Appeals from order of Director-General 1) An employer may appeal to the Labour Court against an order of the Director-General within 21 days of receipt of that order. 2) The order is suspended pending the final determination of the appeal by the Labour Court or any appeal from the Labour Court. 3) If the employer shows good cause at any time, the Labour Court may permit the employer to appeal after the period of 21 days has expired. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part A: Monitoring and Enforcement 73. Order may be made order of Labour Court 1) The Director-General may apply to the Labour Court for a compliance order to be made an order of the Labour Court in terms of section 158(1)(c) of the Labour Relations Act, 1995, if the employer has not complied with the order and has not lodged an objection against the order in terms of section 71(1). 2) The Director-General may apply to the Labour Court for an order of the Director-General in terms of section 71(3) to be made an order of the Labour Court in terms of section 158(1)(c) of the Labour Relations Act, 1995, if the employer has not complied with the order and has not appealed against the order in terms of section 72(1). 3) [deleted by the Basic Conditions of Employment Act, No. 11 of 2002] Chapter Ten: Monitoring, Enforcement and Legal proceedings Part B: Legal proceedings 74. Consolidation of proceedings 1) A dispute concerning a contravention of this Act may be instituted jointly with proceedings instituted by an employee under Part C of this Chapter. 2) If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act if-- a) the claim is referred in compliance with section 191 of the Labour Relations Act, 1995; b) the amount had not been owing by the employer to the employee for longer than one year prior to the dismissal; and c) no compliance order has been made and no other legal proceedings have been instituted to recover the amount. 3) A dispute concerning any amount that is owing to an employee as a result of a contravention of this Act may be initiated jointly with a dispute instituted by that employee over the entitlement to severance pay in terms of section 41(6). Chapter Ten: Monitoring, Enforcement and Legal proceedings Part B: Legal proceedings 75. Payment of interest An employer must pay interest on any amount due and payable in terms of this Act at the rate of interest prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), to any person to whom a payment should have been made. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part B: Legal proceedings 76. Proof of compliance 1) In any proceedings concerning a contravention of this Act or any sectoral determination it is for an employer-- a) to prove that a record maintained by or for that employer is valid and accurate; b) who has failed to keep any record required by this Act that is relevant to those proceedings, to prove compliance with any provision of this Act. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part B: Legal proceedings 77. Jurisdiction of Labour Court 1) Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act, except in respect of an offence specified in sections 43, 44, 46, 48, 90 and 92. 2) The Labour Court may review the performance or purported performance of any function provided for in this Act or any act or omission of any person in terms of this Act on any grounds that are permissible in law. 3) The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract. 4) Subsection (1) does not prevent any person relying upon a provision of this Act to establish that a basic condition of employment constitutes a term of a contract of employment in any proceedings in a civil court or an arbitration held in terms of an agreement. 5) If proceedings concerning any matter contemplated in terms of subsection (1) are instituted in a court that does not have jurisdiction in respect of that matter, that court may at any stage during proceedings refer that matter to the Labour Court. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part B: Legal proceedings 77A. Powers of Labour Court Subject to the provisions of this Act, the Labour Court may make any appropriate order, including an order- a) making a compliance order issued in terms of this Act, an order of the Labour Court, on application by the Director-General in terms of section 73(1) or 73(2); b) condoning the late filing of any document with, or the late referral of any dispute to, the Labour Court; c) confirming, varying or setting aside all or part of an order made by the Director-General in terms of section 71(3), on appeal by the employer in terms of section 72; d) reviewing the performance or purported performance of any function provided for in terms of this Act or any act or omission by any person or body in terms of this Act, on any grounds permissible in law; e) making a determination that it considers reasonable on any matter concerning a contract of employment in terms of section 77(3), which determination may include an order for specific performance, an award of damages or an award of compensation; f) imposing a fine in accordance with Schedule 2 to this Act or for any contravention of any provision of this Act for which a fine can be imposed; and g) dealing with any matter necessary or incidental to performing its functions in terms of this Act. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part C: Protection of Employees against Discrimination 78. Rights of employees 1) Every employee has the right to-- a) make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act; b) discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person; c) refuse to comply with an instruction that is contrary to this Act or any sectoral determination; d) refuse to agree to any term or condition of employment that is contrary to this Act or any sectoral determination; e) inspect any record kept in terms of this Act that relates to the employment of that employee; f) participate in proceedings in terms of this Act; g) request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee. 2) Every trade union representative has the right, at the request of an employee, to inspect any record kept in terms of this Act that relates to the employment of that employee. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part C: Protection of Employees against Discrimination 79. Protection of rights 1) In this section, "employee" includes a former employee or an applicant for employment. 2) No person may discriminate against an employee for exercising a right conferred by this Part and no person may do, or threaten to do, any of the following: a) Require an employee not to exercise a right conferred by this Part; b) prevent an employee from exercising a right conferred by this Part; or c) prejudice an employee because of a past, present or anticipated-- i) failure or refusal to do anything that an employer may not lawfully permit or require an employee to do; ii) disclosure of information that the employee is lawfully entitled or required to give to another person; or iii) exercise of a right conferred by this Part. 3) No person may favour, or promise to favour, an employee in exchange for the employee not exercising a right conferred by this Part. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle the dispute. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part C: Protection of Employees against Discrimination 80. Procedure for disputes 1) If there is a dispute about the interpretation or application of this Part, any party to the dispute may refer the dispute in writing to-- a) a council, if the parties to the dispute fail within the registered scope of that council; or b) the CCMA, if no council has jurisdiction. 2) The party who refers a dispute must satisfy the council or the CCMA that a copy of the referral has been served on all the other parties to the dispute. 3) The council or the CCMA must attempt to resolve a dispute through conciliation. 4) If a dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication. 5) In respect of a dispute in terms of this Part, the relevant provisions of Part C of Chapter VII of the Labour Relations Act, 1995, apply with the changes required by the context. Chapter Ten: Monitoring, Enforcement and Legal proceedings Part C: Protection of Employees against Discrimination 81. Burden of proof In any proceeding in terms of this Part-- a) an employee who alleges that a right or protection conferred by this Part has been infringed, must prove the facts of the conduct said to constitute such infringement; and b) the party who allegedly engaged in the conduct in question must then prove that the conduct did not infringe any provision of this Part. Chapter Eleven: General 82. Temporary employment services 1) For the purposes of this Act, a person whose services have been procured for, or provided to, a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer. 2) Despite subsection (1), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person. 3) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any employee who provides services to that client, does not comply with this Act or a sectoral determination. Chapter Eleven: General 83. Deeming of persons as employees 1) The Minister may, on the advice of the Commission and by notice in the Gazette, deem any category of persons specified in the notice to be- a) employees for purposes of the whole or any part of this Act, any other employment law other than the Unemployment Insurance Act, 1966 Act No. 30 of 1966), or any sectoral determination b) contributors for purposes of the whole or any part of the Unemployment Insurance Act, 1966. 2) Before the Minister issues a notice under subsection (1), the Minister must- a) publish a draft of the proposed notice in the Gazette; and b) invite interested persons to submit written representations on the proposed notice within a reasonable period. Chapter Eleven: General 83A. Presumption as to who is employee 1) A person who works for, or renders services to, an other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present: a) The manner in which the person works is subject to the control or direction of another person; b) the person's hours of work are subject to the control or direction of another person; c) in the case of a person who works for an organisation, the person is a part of that organisation; d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; e) the person is economically dependent on the other person for whom 35 that person works or renders services; f) the person is provided with tools of trade or work equipment by the other person; or g) the person only works for or renders services to one person. 2) Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6(3). 3) If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6(3), any of the contracting parties may approach the CCMA for an advisory award about whether the persons involved in the arrangement are employees. Chapter Eleven: General 84. Duration of employment 1) For the purposes of determining the length of an employee's employment with an employer for any provision of this Act, previous employment with the same employer must be taken into account if the break between the periods of employment is less than one year. 2) Any payment made or any leave granted in terms of this Act to an employee contemplated in subsection (1) during a previous period of employment must be taken into account in determining the employee's entitlement to leave or to a payment in terms of this Act. Chapter Eleven: General 85. Delegation 1) The Minister may in writing delegate or assign to the Director-General or any employee in the public service of the rank of assistant director or of a higher rank, any power or duty conferred or imposed upon the Minister in terms of this Act, except the Minister's powers in terms of sections 6(3), 55(1), 60, 83, 87 and 95(2) and the Minister's power to make regulations. 2) A delegation or assignment in terms of subsection (1) does not limit or restrict the Minister's authority to exercise or perform the delegated or assigned power or duty. 3) Any person to whom a power or duty is delegated or assigned in terms of subsection (1) must exercise or perform that power or duty subject to the direction of the Minister. 4) The Minister may at any time-- a) withdraw a delegation or assignment made in terms of subsection (1); and b) withdraw or amend any decision made by a person exercising or performing a power or duty delegated or assigned in terms of subsection (1). 5) The Director-General may in writing delegate or assign any power or duty conferred or imposed upon the Director-General by Chapter Ten of this Act to any employee in the Department of the rank of assistant director or of a higher rank. 6) Subsections (2), (3) and (4) apply with changes required by the context to any delegations or assignments by the Director-General under subsection (5). Chapter Eleven: General 86. Regulations 1) The Minister may by notice in the Gazette, after consulting the Commission, make regulations regarding any matter that may be necessary or expedient to prescribe in order to achieve the objects of this Act. 2) A regulation regarding state revenue or expenditure may be made only with the concurrence of the Minister of Finance. Chapter Eleven: General 87. Codes of Good Practice 1) The Minister, after consulting NEDLAC-- a) must issue a Code of Good Practice on the Arrangement of Working Time; b) must issue a Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child; c) may issue other codes of good practice; and d) may change or replace any code of good practice. 2) Any code of good practice or any change to or replacement of a code of good practice must be published in the Gazette. 3) Any person interpreting or applying this Act must take into account relevant codes of good practice. 4) A Code of Good Practice issued in terms of this section may provide that the Code must be taken into account in applying or interpreting any employment law. Chapter Eleven: General 88. Minister's power to add and change footnotes The Minister may, by notice in the Gazette, add to, change or replace any footnote in this Act. Chapter Eleven: General 89. Representation of employees or employers 1) A registered trade union or registered employers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party: a) In its own interest; b) on behalf of any of its members; c) in the interest of any of its members. 2) A registered trade union or a registered employers' organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to these proceedings. Chapter Eleven: General 90. Confidentiality 1) It is an offence for any person to disclose information which that person acquired while exercising or performing any power or duty in terms of this Act and which relates to the financial or business affairs of any other person, except if the information is disclosed in compliance with the provisions of any law-- a) to enable a person to perform a function or exercise a power in terms of an employment law; b) for the purposes of the proper administration of this Act; c) for the purposes of the administration of justice. 2) Subsection (1) does not prevent the disclosure of any information concerning an employer's compliance or non-compliance with the provisions of any employment law. 3) The record of any medical examination performed in terms of this Act must be kept confidential and may be made available only-- a) in accordance with the ethics of medical practice; b) if required by law or court order; or c) if the employee has in writing consented to the release of that information. Chapter Eleven: General 91. Answers not to be used in criminal prosecutions No answer by any person to a question by a person conducting an investigation in terms of section 53 or by a labour inspector in terms of section 66 may be used against that person in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement. Chapter Eleven: General 92. Obstruction, undue influence and fraud It is an offence to-- a) obstruct or attempt to influence improperly a person who is performing a function in terms of this Act; b) obtain or attempt to obtain any prescribed document by means of fraud, false pretenses, or by presenting or submitting a false or forged document; c) pretend to be a labour inspector or any other person performing a function in terms of this Act; d) refuse or fail to answer fully any lawful question put by a labour inspector or 1 any other person performing a function in terms of this Act; e) refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of this Act; f) hinder or obstruct a labour inspector or any other person performing a function in terms of this Act. Chapter Eleven: General 93. Penalties 1) Any magistrates' court has jurisdiction to impose a penalty for an offence provided for in this Act. 2) Any person convicted of an offence in terms of any section mentioned in the first column of the table below may be sentenced to a fine or imprisonment for a period not longer than the period mentioned in the second column of that table opposite the number of that section. Offences and Penalties Section under which convicted Maximum term of imprisonment Section 43 3 years Section 44 3 years Section 46 3 years Section 48 3 years Section 90(1) and (3) 1 year Section 92 1 year Chapter Eleven: General 94. This Act binds the State This Act binds the State except in so far as criminal liability is concerned. Chapter Eleven: General 95. Transitional arrangements and amendment and repeal of laws 1) The provisions of Schedule Three apply to the transition from other laws to this Act. 2) The Minister may for the purposes of regulating the transition from any law to this Act add to or change Schedule Three. 3) Any addition or change to Schedule Three must be tabled in the National Assembly and takes effect-- a) if the National Assembly does not pass a resolution that the addition or change is not binding within 14 days of the date of the tabling; and b) on publication in the Gazette. 4) Section 186 of the Labour Relations Act, 1995, is hereby amended by the deletion of subparagraph (ii) of paragraph (c). 5) The laws mentioned in the first two columns of Schedule Four are hereby repealed to the extent indicated opposite that law in the third column of that Schedule. 6) The repeal of any law by subsection (5) does not affect any transitional arrangement provided for in Schedule Three. Chapter Eleven: General 96. Short title and commencement This is the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be fixed by the President by proclamation in the Gazette. Schedule One: Procedures for Progressive Reduction of Maximum Working Hours 1. Goal This Schedule records the procedures to be adopted to reduce the working hours of employees to the goal of a 40 hour working week and an eight hour working day-- a) through collective bargaining and the publication of sectoral determinations; b) having due regard to the impact of a reduction of working hours on existing employment and opportunities for employment creation, economic efficiency and the health, safety and welfare of employees. Schedule One: Procedures for Progressive Reduction of Maximum Working Hours 2. Collective bargaining When during negotiations on terms and conditions of employment, a party to the negotiations introduces the reduction of maximum working hours as a subject for negotiation, the parties must negotiate on that issue. Schedule One: Procedures for Progressive Reduction of Maximum Working Hours 3. Role of Employment Conditions Commission The Commission may investigate the possibility of reducing working hours in a particular sector and area and make recommendations to the Minister thereon. Schedule One: Procedures for Progressive Reduction of Maximum Working Hours 4. Investigation by Department of Labour 1) The Department of Labour must, after consultation with the Commission, conduct an investigation as to how the reduction of weekly working hours to a level of 40 hours per week may be achieved. 2) The investigation must be completed and the report submitted to the Minister not later than 18 months after the Act has come into operation. Schedule One: Procedures for Progressive Reduction of Maximum Working Hours 5. Reports 1) The Department of Labour must, after consultation with the Commission-- a) monitor and review progress made in reducing working hours; b) prepare and publish a report for the Minister on the progress made in the reduction of working hours. 2) The Department must publish reports every two years. 3) The reports must be tabled at NEDLAC and in Parliament by the Minister. 4) The Minister may prescribe the returns to be submitted by employers, trade unions and councils on any matter concerning this Schedule. Schedule Two: Maximum Permissible Fines that may be Imposed for Failure to Comply with this Act 1) This Schedule sets out the maximum fine that may be imposed in terms of Chapter Ten for a failure to comply with a provision of this Act. 2) The maximum fine that may be imposed-- a) for a failure to comply with a provision of this Act not involving a failure to pay an amount due to an employee in terms of any basic condition of employment, is the fine determined in terms of Table One or Table Two; b) involving a failure to pay an amount due to an employee, is the greater of the amount determined in terms of Table One or Table Two. Table One: Maximum Permissible Fine not Involving an Underpayment No previous failure to comply R100 per employee in respect of whom the failure to comply occurs A previous failure to comply in respect of the same provision R200 per employee in respect of whom the failure to comply occurs A previous failure to comply within the previous 12 months or two previous failures to comply in respect of the same provision within three years R300 per employee in respect of whom the failure to comply occurs Three previous failures to comply in respect of the same provision within three years R400 per employee in respect of whom the failure to comply occurs Four previous failures to comply in respect of the same provision within three years R500 per employee in respect of whom the failure to comply occurs Table Two: Maximum Permissible Fine Involving an Underpayment No previous failure to comply 25% of the amount due, including any interest owing on the amount at the date of the order A previous failure to comply in respect of the same provision within three years 50% of the amount due, including any interest owing on the amount at the date of the order A previous failure to comply in respect of the same provision within a year, or two previous failures to comply in respect of the same provision within three years 75% of the amount due, including any interest owing on the amount at the date of the order Three previous failures to comply in respect of the same provision within three years 100% of the amount due, including any interest owing on the amount at the date of the order Four previous failures to comply in respect of the same provision within three years 200% of the amount due, including any interest owing on the amount at the date of the order Schedule Three: Transitional Provisions 1. Definitions For the purposes of this Schedule-- "Basic Conditions of Employment Act, 1983" means the Basic Conditions of Employment Act, 1983 (Act No. 3 of 1983); "domestic worker" means an employee defined as a "domestic servant" in section 1(1) of the Basic Conditions of Employment Act, 1983; "farm worker" means an employee who is employed mainly in or in connection with farming activities, and includes an employee who wholly or mainly performs domestic work in home premises on a farm; "mineworker" means an employee employed at a mine whose hours of work are prescribed in terms of any regulation that is in force in terms of item 4 of Schedule 4 to the Mine Health and Safety Act, 1996 (Act No. 29 of 1996); "security guard" means an employee defined as a "guard" or a "security guard" in terms of the Basic Conditions of Employment Act, 1983; "Wage Act, 1957" means the Wage Act, 1957 (Act No. 5 of 1957); "wage determination" means a wage determination made in terms of section 14 of the Wage Act, 1957. Schedule Three: Transitional Provisions 2. Application to public service This Act, except section 41, does not apply to the public service for 18 months after the commencement of this Act, unless a bargaining council concludes a collective agreement that a provision of this Act will apply from an earlier date. Schedule Three: Transitional Provisions 3. Application to farm workers 1) Section 6A, section 10(2A) and section 14(4A) of the Basic Conditions of Employment Act, 1983, continue to apply to the employment of a farm worker until such time as the matters regulated by those provisions are regulated by a sectoral determination applicable to the farm worker. 2) Until regulated by a sectoral determination, section 17(3) applies to farm workers who work after 20:00 and before 04:00 at least five times per month or 50 times per year. Schedule Three: Transitional Provisions 4. Payment in kind of domestic workers and farm workers 1) The definition of "wage" in section 1(1) of the Basic Conditions of Employment Act, 1983, and the definition of "payment in kind" in the regulations published under that Act continue to apply to the employment of domestic workers and farm workers, until regulated by a sectoral determination. 2) The Minister may, by notice in the Gazette, amend any cash amount prescribed in the definition of "payment in kind" in accordance with section 37 of the Basic Conditions of Employment Act, 1983, as if that section had not been repealed. Schedule Three: Transitional Provisions 5. Ordinary hours of work An employer may require or permit an employee who is employed as a farm worker, mineworker or security guard to work ordinary hours of work in excess of those prescribed by section 9(1) and (2) for the period specified in column two of Table One: Provided that-- a) any condition in column two of Table One is complied with; b) the employee's hours of work do not exceed any limit on hours of work in any law or any wage-regulating measure applicable to that category of employee immediately before this Act came into effect; c) the employee and his or her employer do not conclude an agreement in terms of sections 11 and 12. Table One Farm workers For a period of 12 months after the commencement date of this Act, provided that the employee's ordinary hours of work do not exceed 48 hours per week. Mineworkers For a period of 12 months after the commencement date of this Act, provided that the employee's total hours of work do not exceed any limit on hours or work prescribed in any applicable regulation that is in force in terms of item 4 of Schedule 4 to the Mine Health and Safety Act, 1996 (Act No. 29 of 1996). Security guards For a period of 12 months after the commencement date of this Act, provided that the employee's ordinary hours of work do not exceed 55 hours per week; and thereafter for a further period of 12 months, provided that the employee's ordinary hours of work do not exceed 50 hours per week. Security guards in the private security sector Despite the preceding sentence, for a period of 12 months after the commencement date of a sectoral determination for the private security sector, provided that the employee's ordinary hours of work do not exceed 55 hours per week; and thereafter for a further period of 12 months, provided that the employee's ordinary hours of work do not exceed 50 hours per week. Schedule Three: Transitional Provisions 6. Leave pay 1) The entitlement in terms of section 20(2) of an employee employed continuously before and after the commencement of this Act takes effect on the date on which, but for the enactment of this Act, the employee would next have commenced a leave cycle in terms of section 12 of the Basic Conditions of Employment Act, 1983, or any wage determination. 2) Any accrued leave to which an employee was entitled in terms of section 12 of the Basic Conditions of Employment Act, 1983, or a wage determination, but which has not been granted by the date on which section 20(2) takes effect with respect to that employee, must be added to the paid leave earned by that employee in terms of this Act. 3) Section 22(3) does not apply to any leave earned by the employee in respect of any period prior to the date on which this Act takes effect. Schedule Three: Transitional Provisions 7. Pay for sick leave 1) Table Two applies in respect of any employee, as defined in the Basic Conditions of Employment Act, 1983, in employment at the commencement of this Act. 2) An employee listed in column one who was in continuous employment before the commencement of this Act for the period set out in column two becomes entitled to the rights under section 22(2) on the date listed in column three and section 22(3) on the date listed in column four. Table Two: Transitional Arrangements in Relation to Sick Leave Employees as defined in the Basic Conditions of Employment Act, 1983 Period of continuous employment before commencement date of this Act Date of entitlement to six weeks' paid sick leave over 36-months sick Leave cycle in terms of section 22(2) Date of entitlement to one day's paid sick leave every 26 days worked during the first six consecutive months of employment in terms of section 22(3) Employees and regular day workers Less than six months Six months after commencement day of employment Date on which employee began employment Casual employees Less than six months Six months after commencement day of employment Commencement date of this Act Regular day workers and casual employees More than six months Commencement date of this Act Not applicable Employees (other than casual workers and regular day workers) Between six and twelve months Commencement date of this Act Not applicable Employees More than twelve months At conclusion of current sick leave cycle in terms of section 13(1) of the Basic Conditions of Employment Act, 1983 Not applicable 3) Any period of paid sick leave granted to an employee in accordance with Table Two, may be deducted from the employee's entitlement in terms of either section 22(2) or section 22(3), if-- a) it was taken before the commencement of this Act; or b) it was taken during the period that the relevant section was in effect with respect to that employee. Schedule Three: Transitional Provisions 8. Exemptions Any exemption granted under section 34 of the Basic Conditions of Employment Act, 1983, in force immediately before the commencement of this Act remains in force for the period for which the exemption was granted, or if the exemption was granted for an indefinite period, for a period of six months after the commencement of this Act as if that Act had not been repealed, unless it is withdrawn by the Minister, before the end of such period. Schedule Three: Transitional Provisions 9. Wage determinations 1) Any wage determination and any amendment to a wage determination made in terms of section 15 of the Wage Act, 1957, in force immediately before the commencement of the Basic Conditions of Employment Amendment Act, 2002 (hereafter referred to as a `wage determination') is deemed to be a sectoral determination made in accordance with section 55 of this Act. 2) Any provision in a wage determination stipulating a minimum term or condition of employment is deemed to be a basic condition of employment defined in section 1 of this Act. 3) The Minister may amend, cancel, suspend, clarify or correct any wage determination in accordance with Chapter Eight of this Act. 4) The provisions of a wage determination may be enforced in accordance with Chapter Ten of this Act. 5) Any prosecution concerning a contravention of, or failure to comply with, a binding wage determination or licence of exemption from 1 November 1998 until the commencement of the Basic Conditions of Employment Amendment Act, 2002, which prosecution commenced prior to or within three months of the commencement date of the Basic Conditions of Employment Amendment Act, 2002, must be dealt with in terms of the Wage Act, 1957, as if the Wage Act, 1957, had not been repealed. 6) The Director of Public Prosecutions having jurisdiction is deemed to have issued a certificate in terms of section 23(3)(x) of the Wage Act, 1957, in respect of any contravention or failure contemplated in subitem (5) in respect of which no prosecution is commenced within three months of the commencement date of the Basic Conditions of Employment Amendment Act, 2002. Schedule Three: Transitional Provisions 10. Exemptions to wage determination Any licence of exemption granted in respect of a wage determination in terms of section 19 of the Wage Act, 1957, in force immediately before the commencement of this Act is deemed to be withdrawn as from a date six months after the commencement date of the Basic Conditions of Employment Amendment Act, 2002. Schedule Three: Transitional Provisions 11. Agreements 1) Any agreement entered into before the commencement of this Act which is permitted by this Act remains valid and binding. 2) Any provision in a collective agreement concluded in a bargaining council that was in force immediately before this Act came into effect remains in effect for-- a) six months after the commencement date of this Act in the case of a provision contemplated by section 49(1)(a) to (d); and b) 18 months after the commencement date of this Act in the case of a provision contemplated by section 49(1)(e). Schedule Four: Laws Repealed by Section 95(5) (see annexure of table as above) General Administrative Regulations 1. Definitions 1) In these regulations any expression that is defined in the Act has that meaning unless the context indicates otherwise - "the Act" means the Basic Conditions of Employment Act (Act no. 75 of 1997). "Labour Relations Act" means the Labour Relations Act (Act 66 of 1995). "form" means a document attached to these regulations. 2) Whenever the expression "Department of Labour" or "Provincial Executive Manager" appears in the Act or in these regulations, it means - a) in the province of KwaZulu/Natal, the Provincial Executive Manager, Department of Labour, PO Box 940, Durban, 4000; b) in the province of Northern Cape, the Provincial Executive Manager, Department of Labour, Private Bag X5012, Kimberley, 8300; c) in the Northern Province, the Provincial Executive Manager, Department of Labour, Private Bag X9368, Pietersburg, 0700; d) in the province of North-West, the Provincial Executive Manager, Department of Labour, Private Bag X2040, Mmabatho, 8681; e) in the province of Eastern Cape. the Provincial Executive Manager, Department of Labour, Private Bag X9005, East London, 5200; f) in the province of Mpumalanga, the Provincial Executive Manager, Department of Labour. Private Bag X7263, Witbank, 1035; g) in the province of the Free State, the Provincial Executive Manager, Department of Labour, PO Box 522, Bloemfontein, 9300; h) in the province of Gauteng: Gauteng-South: - in the Magisterial Districts of Alberton, Boksburg, Brakpan, Germiston, Heidelberg, Johannesburg, Kempton Park, Oberholzer, Randburg, Roodepoort, Vanderbijlpark, Vereeniging and Westonaria, The Provincial Executive Manager, Department of Labour, PO Box 4560, Johannesburg, 2000; Gauteng North: - in the Magisterial Districts of Benoni, Bronkhorstspruit, Cullinan, Krugersdorp, Nigel, Pretoria, Randfontein, Soshanguve 1, Soshanguve 2, Springs and Wonderboom, the Provincial Executive Manager, Department of Labour, PO Box 393, Pretoria, 0001; and i) in the Province of the Western Cape, the Provincial Executive Manager, Department of Labour, PO Box 872, Cape Town, 8000. General Administrative Regulations 2. Informing Employees of Their Rights An employer must keep the statement of employees rights referred to in section 30 of this Act in the form of BCEA 1 in all official languages. Form BCEA 1A English Form BCEA 1B Afrikaans Form BCEA 1C Sepedi Form BCEA 1D Sesotho Form BCEA 1E Setswana Form BCEA 1F siSwati Form BCEA 1G Tshivenda Form BCEA 1H Xitsonga Form BCEA 1I isiNdebele Form BCEA 1J isiXhosa Form BCEA 1K isiZulu General Administrative Regulations 3. Keeping of Records 1) The record that an employer is required to keep in terms of section 31 must comprise a) a wages register in the form of BCEA 2 or some other record that contains the information set out in that form; and b) an attendance register in the form of BCEA 3 or some other record that contains the information set out in that form. General Administrative Regulations 4. Record of Employee's Wages The information about remuneration that an employer is required to give an employee in terms of section 33 of the Act must be given in the form of BCEA 4, or contain the information required by that form. General Administrative Regulations 5. Written particulars of Employment Within six months of the date on which the Act comes into effect, an employer must give an employee who was in employment on that date the written particulars of employment required by Section 29. General Administrative Regulations 6. Certificate of Service The certificate of service that an employer is required to give an employee in terms of section 42 must be given in the form of BCEA 5, or contain the information required by that form. General Administrative Regulations 7. Ministerial Determination An application for a Ministerial determination in terms of Section 50(1)(b) of the Act must be in the form of BCEA 6, or contain the information required by that form. A Ministerial determination must be issued in the form of BCEA 7, or contain the information required by that form. General Administrative Regulations 8. Subpoenas 1) For the purpose of performing the functions referred to in section 66 of the Act, a labour inspector may-- a) subpoena for questioning any person who may be able to give information or whose presence may help the inspector in performing the inspector's functions; b) subpoena any person who is believed to have possession or control of any book, document or object relevant to an inspection or investigation to appear before the inspector to be questioned or to produce that book, document or object; c) call, and if necessary subpoena, any expert to appear before the inspector to give evidence relevant to an inspection or investigation; d) call any person present at an inspection or investigation who was or could have been subpoenaed for any purpose set out in these regulations, to be questioned about any matter relevant to an inspection or investigation; e) administer an oath or accept an affirmation from any person called to give evidence or be questioned; f) examine, demand the production of, and seize any book, document or object that is on or in those premises an that is relevant to an inspection or investigation; g) take a statement in respect of any matter relevant to an inspection of investigation from any person on the premises who is willing to make a statement; and h) inspect, and retain for a reasonable period, any of the books, documents, or objects that have been produced to, or seized by, the inspector. 2) A subpoena issued in terms of sub-regulation (1) must be made in the form of BCEA 8. 3) A subpoena issued for any purpose in terms of sub-regulation (1) must be signed by the Director General or a person authorised by the Director-General and must - a) specifically require the person named in it to appear before the inspector; b) sufficiently identify the book, document or object to be produced; and c) State the date, time and place at which the person is to appear. General Administrative Regulations 9. Securing an Undertaking 1) Any undertaking secured by a labour inspector in terms of Section 68(2) of the Act must be in the form of BCEA 9 or contain the information required by that form. 2) A receipt for any payment in terms of Section 68(2)(d) of the Act must be in the form of BCEA 10 or contain the information required by that form. 3) A receipt for any record, document, article, substance or machinery removed in terms of Section 66(3)(b) of the Act must be in the form of BCEA 11 or contain the information required by that form. General Administrative Regulations 10. Compliance Order A compliance order issued by a labour inspector in terms of Section 69 of the Act must be in the form of BCEA 12 or contain the information set out in that form. General Administrative Regulations 11. Objections to Compliance Order 1) An objection lodged by an employer in terms of Section 71 of the Act must be in the form of BCEA 13 or contain the information set out in that form. 2) The objection must be lodged at any office of the Department of Labour listed in regulation 1(2). General Administrative Regulations 12. Proof of Service Whenever a party is required to satisfy any person that a copy of a referral, objection or other document has been served on another party, that party may do so by providing - a) a copy of the proof of mailing the referral, objection or other document by registered post to the other party; b) copy of the telegram, telex or telefax including proof of transmission, communicating the referral, objection or other document to the other party; c) copy of a receipt signed by the other party or on that party's behalf if the copy of the referral, objection or other document was delivered by hand; or d) statement confirming service signed by the person who delivered a copy of the referral objection or other party. General Administrative Regulations 13. Inspector certificates in terms of section 63 1) A certificate issued to a labour inspector in terms of section 63(3) must be in the form of Annexure 14A 2) Every labour inspector who is issued with a certificate in terms of sub-regulation (1) must also be issued with a certificate in the form of an inspector card in the form of Annexure 14B 3) Production of a certificate by a labour inspector in the form of either Annexure 14A or Annexure 14 B constitutes a) Proof that the person identified in the certificate is a labour inspector; b) Compliance with a request for the productions of a certificate in terms of section 65(3)(a) of the Act." General Administrative Regulations Form BCEA 1 Summary to be kept by an Employer in terms of Section 30 Click here to download this summary in Word 97/2000 format. (Regulation 3) The following is a summary of the provisions of the most important sections of the Basic Conditions of Employment Act, 1997. (Section 30) 1. Application of the Act: Section 3 (Section 3) The Act applies to all employees and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for an organisation with a charitable purpose. The Act takes precedence over any agreement. 2. Regulation of Working Time: Chapter Two (Chapter 2) 2.1 Application This chapter does not apply to senior managerial employees, employees engaged as sales staff who travel and those employees who work less than 24 hours a month. 2.2 Ordinary hours of work: Section 9 No employer shall require or permit an employee to work more than-- a) 45 hours in any week; b) nine hours in any day if an employee works for five days or less in a week; or c) eight hours in any day if an employee works on more than five days in a week. 2.3 Overtime: Section 10 2.3.1 An employer may not require or permit an employee- a) to work overtime except by an agreement; b) to work more than-- i) three hours' overtime a day; or ii) ten hours' overtime a week. 2.3.2 Overtime must be paid at 1.5 times the employee's normal wage or an employee may agree to receive paid time off. 2.4 Compressed working week: Section 11 2.4.1 An employee may agree in writing to work up to 12 hours in a day without receiving overtime pay. 2.4.2 This agreement may not require or permit an employee to work- a) more than 45 ordinary hours in any week; b) more than ten hours' overtime in any week: or c) more than five days in any week. 2.5 Averaging of hours of work: Section 12 2.5.1 A collective agreement may permit the hours of work to be averaged over a period of up to four months. 2.5.2 An employee who is bound by a collective agreement may not work more than- a) an average of 45 ordinary hours in a week over the agreed period; b) an average of five hours overtime in a week over the agreed period. 2.6 Meal intervals: Section 14 2.6.1 An employee must have a meal interval of 60 minutes after five hours work. 2.6.2 A written agreement may-- a) reduce the meal interval to 30 minutes; b) dispense with the meal interval if worked fewer than six hours on a day. 2.7 Daily and weekly rest period: Section 15 An employee must have a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which, unless otherwise agreed, must include Sunday. 2.8 Pay for work on Sundays: Section 16 2.8.1 An employee who occasionally works on a Sunday must receive double pay. 2.8.2 An employee who ordinarily works on a Sunday must be paid at 1.5 times the normal wage. 2.8.3 Paid time off in return for working on a Sunday may be agreed upon. 2.9 Night work: Section 17 2.9.1 Employees who work at night between 18:00 and 06:00 must be compensated by payment of an allowance or by a reduction of working hours and transport must be available. 2.9.2 Employees who work regularly after 23:00 and before 06:00 the next day must be informed a) of any health and safety hazards; and b) the right to undergo a medical examination. 2.10 Public holidays: Section 18 2.10.1 Employees must be paid for any public holiday that falls on a working day. 2.10.2 Work on a public holiday is by agreement and paid at double the rate. 2.10.3 A public holiday is exchangeable by agreement. 3. Leave: Chapter Three (Chapter 3) 3.1 Application The chapter on leave does not apply to an employee who works less than 24 hours a month for an employer and if an agreement provides for leave in excess of the leave entitlement under this chapter. 3.2 Annual leave: Sections 20 & 21 3.2.1 Employees are entitled to 21 consecutive days' annual leave or by agreement, one day for every 17 days worked or one hour for every 17 hours worked. 3.2.2 Leave must be granted not later than six months after the end of the leave cycle. 3.2.3 An employer must not pay an employee instead of granting leave except on termination of employment. 3.3 Sick leave: Sections 22, 23 & 24 3.3.1 An employee is entitled to six weeks' paid sick leave in a period of 36 months. 3.3.2 During the first six months an employee is entitled to one day's paid sick leave for every 26 days worked. 3.3.3 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. 3.4 Maternity leave: Sections 25 & 26 3.4.1 A pregnant employee is entitled to four consecutive months' maternity leave. 3.4.2 A pregnant employee or employee nursing her child is not allowed to perform work that is hazardous to her or her child. 3.5 Family responsibility leave: Section 27 3.5.1 Full time employees are entitled to three 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. 3.5.2 An employer may require reasonable proof. 4. Particulars of Employment and Remuneration: Chapter Four (Chapter 4) 4.1 Application This chapter does not apply to an employee who works less than 24 hours a month for an employer. 4.2 Written particulars of employment: Section 29 4.2.1 An employer must supply an employee when the employee commences employment, with the following particulars in writing: a) full name and address of the employer; b) name and occupation of the employee. or a brief description of the work ; c) various places of work; d) date of employment; e) ordinary hours of work and days of work; f) wage or the rate and method of calculating; g) rate for overtime work; h) any other cash payments; i) any payment in kind and the value thereof; j) frequency of remuneration; k) Any deductions; l) leave entitlement; m) period of notice or period of contract; n) description of any council or sectoral determination which covers the employer's business; o) period of employment with a previous employer that counts towards the period of employment; p) list of any other documents that form part of the contract, indicating a place where a copy of each may be obtained. 4.2.2 Particulars must be revised if the terms of employment change. 4.3 Informing employees of their rights: Section 30 A statement of employees' rights must be displayed at the workplace in official languages used at this workplace. 4.4 Keeping of records: Section 31 Every employer must keep a record containing the following information: a) employee's name and occupation; b) time worked; c) remuneration paid; d) date of birth if under 18 years of age; and e) any other prescribed information. 4.5 Information about remuneration: Section 33 The following information must be given in writing when the employer is paid: a) employer's name and address; b) employee's name and occupation; c) period of payment; d) remuneration in money; e) any deduction made from the remuneration; f) the actual amount paid; and g) if relevant to the calculation of that employee's remuneration- i) employee's rate of remuneration and overtime rate; ii) number of ordinary and overtime hours worked during the period of payment; iii) number of hours worked on a Sunday or public holiday during that period: and iv) if an agreement to average working time has been concluded, the total number of ordinary and overtime hours worked in the period of averaging. 4.6 Deductions and other sets concerning remuneration: Section 34 No unlawful deductions may be made unless agreed to in writing. 4.7 Calculation of remuneration and wages: Section 35 4.7.1 Wages are calculated by the number of hours ordinarily worked. 4.7.2 Monthly remuneration or wage is four and one-third times the weekly wage. 4.7.3 If calculated on a basis other than time, or if the employee's remuneration or wage fluctuates significantly from period to period, any payment must be calculated by reference to remuneration or wage during- a) the preceding 13 weeks; or b) if employed for a shorter period, that period. 5. Termination of Employment: Chapter Five (Chapter 5) 5.1 Application This chapter does not apply to an employee who works less than 24 hours in a month for an employer. 5.2 Notice of termination of employment: Section 37 5.2.1 A contract of employment may be terminated only on notice of not less than-- a) one week, if employed for four weeks or less; b) two weeks, if employed for more than four weeks but not more than one year; c) four weeks, if employed for one year or more, or is a farm worker or a domestic worker who has been employed for more than four weeks. 5.2.2 Notice must be given in writing except when it is given by an illiterate employee. 5.2.3 The notice on termination of employment by an employer in terms of the Act does not prevent the employee challenging the fairness or lawfulness of the dismissal in terms of the Labour Relations Act, 1995 or any other law. 5.3 Severance pay: Section 41 An employee, dismissed for operational requirements is entitled to one week's severance pay for every year of service. 5.4 Certificate of service: Section 42 On termination of employment an employee is entitled to a certificate of service. 6. Prohibition of Employment of Children and Forced Labour: Sections 43 - 58 (Sections 43 - 58) 6.1 It is a criminal offence to employ a child under 15 years of age. 6.2 Children under 18 may not be employed to do work inappropriate for their age or that places them at risk. 6.3 Forced labour is a criminal offence. 7. Variation of Basic Conditions of Employment: Sections 49 - 50 (Sections 49 & 50) 7.1 A collective agreement concluded by a bargaining council may replace or exclude any basic condition of employment except the following: a) the duty to arrange working time with regard to the health and safety and family responsibility of employees (S. 7, 9 and 13); b) reduce the protection afforded to employees who perform night work (S. 17(3) and (4)); c) reduce annual leave to less than two weeks (S. 20); d) reduce entitlement to maternity leave (S. 25); e) reduce entitlement to sick leave to the extent permitted (S. 22 - 24); and f) prohibition of child and forced labour (S.48). 7.2 Collective agreements and individual agreements may only replace or exclude basic conditions of employment to the extent permitted by the Act or a sectoral determination (S. 49). 7.3 The Minister of Labour may make a determination to vary or exclude a basic condition of employment. This can also be done on application by an employer or employer organisation (S. 50). 7.4 A determination may not be granted unless a trade union representing the employees has consented to the variation or has had the opportunity to make representations to the Minister. A copy of any determination must be displayed by the employer at the work place and must be made available to employee's (S. 50). 8. Sectoral Determinations: Section 51 (Section 51) Sectoral determinations may be made to establish basic conditions for employees in a sector and area. 9. Monitoring, Enforcement and Legal Proceedings: Sections 63 - 81 (Sections 63 - 81) 9.1 Labour inspectors must advise employees and employers on their rights and obligations in terms of employment laws. They conduct inspections, investigate complaints and may question persons and inspect, copy and remove records and other relevant documents (S. 64 - 66). 9.2 An inspector may serve a compliance order on an employer who is not complying with a provision of the Act. The employer may object against the order to the Director-General: Labour, who after receiving representations, may confirm, modify or set aside an order. This decision is subject to appeal to the Labour Court (S. 68 - 73). 9.3 Employees may not be discriminated against for exercising their rights in terms of the Act (S. 78 - 81). 10. General It is an offence to-- a) obstruct or attempt to influence improperly a person who is performing a function in terms of the Act; b) obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document; c) pretend to be a labour inspector or any other person performing a function in terms of the Act; d) refuse or fail to answer fully any lawful question put by a labour inspector or any other person performing a function in terms of the Act; e) refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of the Act; f) hinder or obstruct a labour inspector or any other person performing a function in terms of the Act. (S. 92) General Administrative Regulations Form BCEA 2 Wages register (Section 31) What is the purpose of this form? This form is a record of the calculation of remuneration. Who fills in this form? The employer. Where does this form go? Must be kept in employer's possession. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 3 Attendance register (Section 31) What is the purpose of this form? This form is a record of attendance. Who fills in this form? The employee or if the employee is unable the employer. Where does this form go? Must be kept in employer's possession. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 4 Payslip (Section 33) What is the purpose of this form? This form is a record of information about remuneration. Who fills in this form? The employer. Where does this form go? To the employee. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 5 Certificate of Service (Section 42) What is the purpose of this form? This form is proof of employment with an employer. Who fills in this form? The employer. Where does this form go? To the employee. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 6 Application for Ministerial Determination (Section 50(1)(b)) What is the purpose of this form? This form is an application for a Ministerial Determination to replace or exclude certain provisions of the Act or a Sectoral Determination. Who fills in this form? The employer. Where does this form go? The relevant Provincial Executive Manager of the Department of Labour. Refer to page 4 of this form for the applicable address. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 7 Determination in terms of Section 50 (Section 50(8)(c)) What is the purpose of this form? To record a determination to replace or exclude any basic condition of employment. Who fills in this form? The Minister. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 8 Subpoena (Section 66(1)) What is the purpose of this form? To subpoena information or a person who has such information to make it available to the Director-General or a duly authorised representative. Who fills in this form? The Department of Labour. Where does this form go? To the person who has the information. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 9 Undertaking (Section 68) What is the purpose of this form? To record an undertaking by the employer to comply with a provision of the Act. Who fills in this form? The inspector. Where does this form go? The employer. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 10 Receipt (Section 68(2)(d)) What is the purpose of this form? Proof of monies received. Who fills in this form? The inspector. Where does this form go? The employer. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 11 Receipt (Section 66(3)(b)) What is the purpose of this form? This form is proof of records received from employer. Who fills in this form? The inspector. Where does this form go? The employer. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 12 Compliance order (Section 69) What is the purpose of this form? This form is to enforce compliance with a provision of the Act. Who fills in this form? The inspector. Where does this form go? Order must be delivered to employer named in it, and to employee affected by it or, if this is impractical, to a representative of the employees including a registered trade union. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html General Administrative Regulations Form BCEA 13 Notice of objection (Section 71) What is the purpose of this form? For an employer to object against a compliance order. Who fills in this form? The employer. Where does this form go? To the office of the Department from which the compliance order was issued. The form can be downloaded from the Dept of Labour site at http://www.labour.gov.za/docs/legislation/bcea/forms/index.html Code of Good Practice on the Arrangement of Working Time Notice is hereby given in terms of section 87(2) of the Basic Conditions of Employment Act, 1997, that the Minister of Labour, after consulting NEDLAC, has issued under section 87(1)(a) of that Act, a Code of Good Practice on the Arrangement of Working Time as set out in the Schedule. Code of Good Practice on the Arrangement of Working Time 1. Objectives The objective of this code is to provide information and guidelines to employers and employees concerning the arrangement of working time and the impact of working time on the health, safety and family responsibilities of employees. Code of Good Practice on the Arrangement of Working Time 2. Application 2.1 This code is issued in terms of section 87(1)(a) of the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997), (BCEA) and must be read in conjunction with the BCEA, particularly Chapter Two which governs the regulation of working time. 2.2 Section 7 of the BCEA requires employers to regulate the working time of each employee - 2.2.1 in accordance with the provisions of any Act governing occupational health and safety; 2.2.2 with due regard to the health and safety of employees; 2.2.3 with due regard to this Code of Good Practice; 2.2.4 with due regard to the family responsibilities of employees. 2.3 This code applies to all employers and employees covered by the BCEA. This Code of Good Practice is of particular significance for employees who perform shift work or regular night work and to their employers. 2.4 The norms established by this Code are general and may not be appropriate for all workplaces. A departure from the Code may be justified in proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach. Code of Good Practice on the Arrangement of Working Time 3. Relationship to Health and Safety Laws 3.1 The regulation of working time is closely connected to the protection and promotion of the health and safety of employees and, in some cases, members of the public. 3.2 Employers may be required to take working-time schedules into account in complying with their general duties to provide and maintain a working environment that is safe and without risk to the health of employees in terms of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), (OHSA) 85 of 1993 and the Mine Health and Safety Act, 1996 (Act No. 19 of 1996), (MHSA). 3.3 Key aspects of these Acts are the following: 3.3.1 Employers must conduct a risk assessment. This requires that they identify hazards and assess the risk that they pose to the health and safety of employees. The results of the risk assessment must be recorded. 3.3.2 Employers must implement appropriate measures to eliminate or control hazards identified in the risk assessment. 3.3.3 Employers must train and supply information to employees about the risks to their health and safety and the measures taken to control such risks. 3.3.4 Elected worker health and safety representatives and committees are entitled to participate in the risk assessment and control of hazards. 3.3.5 Employees have a duty to take reasonable steps to protect their own health and safety and that of other employees. 3.4 Employers who engage employees to perform regular night work' must ensure that these employees are informed of the health and safety hazards associated with the work that they would perform. This provision of the BCEA reiterates the obligation on employers in terms of OHSA and MHSA. Code of Good Practice on the Arrangement of Working Time 4. Design and Evaluation of Shift Systems 4.1 The design of shift rosters must be sensitive to the impact of these rosters on employees and their families. This information can be obtained during consultations, negotiations or by circulating individual questionnaires to employees. 4.2 The information that an employer may require on the effect of shift rosters includes - 4.2.1 the ranked preferences of employees for different shift systems (this should include factors such as rate of rotation, length of shift, extension of operating time, starting and finishing times of shifts, weekends off, off-duty periods); 4.2.2 the employee's views of the advantages and disadvantages of the existing or proposed shift system; 4.2.3 aspects of the employee's work that could affect the determination of a suitable shift length; 4.2.4 how an existing or proposed shift schedule affects or might affect the health and safety of employees; 4.2.5 means, costs and availability of transport to and from the place of residence and the personal security of the employee while commuting; 4.2.6 the childcare needs of the employees. 4.3 The information that will be required will depend on whether an employer is introducing a shift system for the first time or is re-evaluating or redesigning a shift system. Code of Good Practice on the Arrangement of Working Time 5. Arrangement of Shifts The following recommendations apply to the arrangement of shift work: 5.1 Overtime should be avoided, especially in occupations involving special hazards or heavy physical or mental strain. 5.2 The changeover from one shift to another during the working day should, where appropriate, include a brief period of overlap of the two crews in order to pass on any information that is needed by the subsequent crew. 5.3 If appropriate and if it is possible within legal requirements, workers whose skills are interchangeable should be allowed to exchange a shift with another worker. 5.4 The shift schedule should be displayed or distributed for easy access by all workers, and should be presented in a readily understandable form. 5.5 Workers should receive reasonable notice in advance of scheduled hours of work and of any foreseeable changes to the schedule. 5.6 Arrangements should be considered to accommodate the special needs of workers such as pregnant and breast-feeding workers, workers with family responsibilities, older workers, disabled workers or workers with health problems, and also workers' personal preferences for the scheduling of their own free time. Code of Good Practice on the Arrangement of Working Time 6. Design of Shift Rosters The following factors should be taken into account in the design of rosters for semi-continuous and continuous shift work: 6.1 The frequency of night work, weekend work and work on public holidays should be limited as much as possible for each worker. 6.2 The frequency of shift rotation should take account of the difficulties workers may have in adapting to night work. 6.3 It is preferable that shifts be rotated in a forward direction (morning to afternoon to night), bearing in mind workers' preferences, local conditions and difficulties in scheduling a long period of rest after spells of night shifts. 6.4 Night shifts should be no longer than morning and afternoon shifts. Where long night shifts are used they should be carefully reviewed to find ways to avoid excessive fatigue. Successive long night shifts should be avoided to the extent practicable. 6.5 Rest periods for shift workers should be scheduled to fall on weekends-a certain minimum number of times during a given period. Code of Good Practice on the Arrangement of Working Time 7. Performance of Safety-Critical Tasks 7.1 Employers should take particular care in the timing of safety-critical tasks in shift cycles and during individual shifts. 7.2 These should, to the greatest extent possible, not be undertaken at a time when the employees involved may be fatigued or have low levels of alertness. 7.3 This is of particular importance to employers, such as operators of major hazard installations whose activities have a direct impact upon the public, and operators of services such as mass transportation or goods transportation. Code of Good Practice on the Arrangement of Working Time 8. Health Assessment and Counselling 8.1 In terms of section 17(3)(b) of BCEA an employer, if requested by an employee who is performing regular night work, must make arrangements for the employee to undergo a medical examination. An employee is entitled to have such an examination at the time of commencing regular night work and thereafter at regular intervals while he or she continues to work regularly at night. 8.2 The examination should be performed by a medical practitioner or by a health professional who could refer employees to a medical practitioner in appropriate cases. This could include qualified staff employed in a workplace clinic. The cost of the examination is for the account of the employer although arrangements could be made for the cost to be covered through medical aid. 8.3 The timing of these examinations should be determined by individual or collective agreement in the light of the employee's health status, the nature of the work the employee performs and the employee's working hours. 8.4 The examination should cover 8.4.1 any difficulties the employee may be having in adapting to night-work routines; 8.4.2 any health problems that the employee is manifesting;' 8.4.3 any psychological, emotional and social stresses experienced by the employee, strategies that may help the employee cope with night work and educational input on the risks of shift work; 8.4.4 insomnia and symptoms of sleep deprivation such as irritability and chronic fatigue; 8.4.5 use of medication, the effectiveness of which depends upon circadian (daily body) rhythms; 8.4.6 diet and use of caffeinated drinks, alcohol, sleeping pills, and cigarettes. 8.5 In certain circumstances, it may be appropriate to advise certain individuals against shift work. These circumstances include where the effectiveness of medication is fundamentally affected by circadian (daily body) rhythms, workers with gastro-intestinal or cardiovascular disorders, and epileptics. 8.6 The examination should also include educational input on the health risks that may be associated with the employee's work schedule and as coping strategies that may assist the employee. Code of Good Practice on the Arrangement of Working Time 9. Working Environment Employers should regularly assess whether the work environment, in particular the lighting and heating, are adequate for the health, safety and physical comfort of employees, particularly night workers. Code of Good Practice on the Arrangement of Working Time 10. Management Services 10.1 Employers should provide appropriate management services to employees working outside of ordinary hours. Depending on the nature of the business, some aspects of management services should be available at all times to nightshift employees. 10.2 Services that should be available at night include: 10.2.1 first aid services; 10.2.2 qualified safety supervision; 10.2.3 occupational health services, in particular counselling on nutrition and fatigue related-problems; 10.2.4 emergency services in case of accidents, including transportation to hospitals. 10.3 Employers who engage employees on night work should ensure that 10.3.1 there is adequate security for employees at the workplace; 10.3.2 employees are able to obtain safe, affordable transportation between their places of residence and their workplace; 10.3.3 there are adequate eating facilities; 10.3.4 there are adequate rest rooms and change-rooms. 10.4 Administrative services should be sufficient, so that employees working nights do not have to use their off-duty time to have contact with services such as the wages or personnel department. This could be achieved by making these services available at the start or end of shifts by introducing rosters that permit employees working at night to have contact during this time. 10.5 The need for and extent of administrative services will depend on the type of shift patterns. The need will be greatest if employees are working at night for long periods or permanently; there will be less of a need if employees change rapidly from day shift to night shift. 10.6 Employees working at night should not be disadvantaged in having access to education and training. 10.7 Collective bargaining, trade union activities and the activities of participative bodies such as workplace forums or health and safety committees should be arranged so as to allow employees who work at night to participate. 10.8 An agreement to reduce employees' meal intervals to 30 minutes in terms of section 14(5)(a) of the BCEA should not be concluded if it may have the effect of endangering the health and safety of employees. 10.9 Employers must ensure that employees receive adequate rest periods. 10.10 The number and duration of rest pauses during the shift and rotation should be adapted to the workload. Particular attention must be given to the scheduling of rest periods for employees who are engaged in- 10.10.1 physically and mentally strenuous work; 10.10.2 work involving manual lifting; 10.10.3 work involving repetitive movement; 10.10.4 monotonous work; 10.10.5 shifts of longer than eight hours. Code of Good Practice on the Arrangement of Working Time 11. Coping Strategies Employers should provide appropriate and up-to-date information to employees about coping strategies, both in the workplace and at home. Strategies that will assist employees to cope with shift work and night work include - 11.1 Maintaining a regular sleeping routine; 11.2 Taking steps to block out noise and light for employees who have to sleep in the day; 11.3 Maintaining a healthy diet; 11.4 Exercise and relaxation. Code of Good Practice on the Arrangement of Working Time Glossary Continuous shift work the employer operates 24 hours a day, seven days a week, all year round. Semi-continuous shift work the employer operates 24 hours a day without a daily break, but with a break at the weekend. Discontinuous shift work the employer operates less than 24 hours a day with at least one daily break. A "two-shift" system is the most common discontinuous shift system. Short or part-time shifts daily scheduled working hours that are substantially shorter than eight hours. Long shifts daily scheduled working hours that are substantially longer than eight hours. Rotating (or alternating) shifts workers alternate between different shifts. There are three key elements to rotation: i) The direction of rotation - rotation can either be forward (clockwise, for instance, morning to afternoon to night) or backward (or counter-clockwise). In forward or advancing shifts, the starting time of one shift in a shift worker's schedule is always later on the 24-hour clock than the previous shift. In a continuous shift system workers will work a morning shift. In backward or delaying rosters. one shift always begins at an earlier time than the previous shift; ii) The frequency - employees may change shifts every week or at shorter or longer intervals; iii) The length of the cycle - the period required for a complete schedule of rotation, after which the cycle is repeated. Fixed (or permanent) shifts employees work permanently on a single shift. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child Notice is hereby given in terms of section 87(2) of the Basic Conditions of Employment Act, 1997, that the Minister of Labour, after consulting NEDLAC, has issued under section 87(1)(b) of that Act, a Code of Good Practice on the Protection of Employees during pregnancy and after the Birth of a Child as set out in the Schedule. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 1. Introduction 1.1 Many women work during pregnancy and many return to work while they are still breast-feeding. 1.2 The objective of this code is to provide guidelines for employers and employees concerning the protection of the health of women against potential hazards in their work environment during pregnancy, after the birth of a child and while breast-feeding. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 2. Application of the Code 2.1 This code is issued in terms of section 87(1)(b) of the Basic Conditions of Employment Act (BCEA) 75 of 1997. 2.2 It is intended to guide all employers and employees concerning the application of section 26(1) of the BCEA which prohibits employers from requiring or permitting pregnant or breast-feeding employees to perform work that is hazardous to the health of the employee or that of her child. 2.3 Workplaces may be affected differently depending upon the type of business and sector they are engaged in and the physical, chemical and biological hazards to which employees may be exposed in the workplace. 2.4 The norms established by this code are general and may not be appropriate for all workplaces. A departure from the code may be justified in the proper circumstances. For example, the number of employees employed in an establishment may warrant a different approach. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 3. Contents This code - 3.1 sets out the legal requirements relevant to the protection of the health and safety of pregnant and breast-feeding employees; 3.2 sets out a method for assessing and controlling the risks to the health and safety of pregnant and breast-feeding employees; 3.3 lists the principal physical, ergonomic, chemical and biological hazards to the health and safety of pregnant and breast-feeding employees and recommends steps to prevent or control these risks. These are listed in Schedules One to Four, which are included for guidance and are not exhaustive. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 4. Legal Requirements 4.1 The Constitution protects the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction [section 12(2)] and gives every person the right to health services, including reproductive health care [section 27(1)(a)]. 4.2 No person may be discriminated against or dismissed on account of pregnancy. 4.3 Employers are required to provide and maintain a work environment that is safe and without risk to the health of employees. This includes risks to the reproductive health of employees. These duties are established in terms of both the Occupational Health and Safety Act (OHSA) 85 of 1993 and the Mine Health and Safety Act (MHSA) 27 of 1996. Key aspects of these Acts are - 4.3.1 employers must conduct a risk assessment, which involves identifying hazards, assessing the risk that they pose to the health and safety of employees. and recording the results of the risk assessment. 4.3.2 employers must implement appropriate measures to eliminate or control hazards identified in the risk assessment; 4.3.3 employers must supply employees with information about and train them in the risks to their health and safety and the measures taken to eliminate or minimise them; 4.3.4 elected worker health and safety representatives and committees are entitled to participate in the risk assessment and control of hazards; 4.3.5 employees have a duty to take reasonable steps to protect their own health and safety and that of other employees. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 5. Protecting the Health of Pregnant and Breast-Feeding Employees 5.1 Section 26(1) of the BCEA prohibits employers from requiring or permitting a pregnant employee or an employee who is breast-feeding to perform work that is hazardous to the health of the employee or the health of her child. This requires employers who employ women of childbearing age to assess and control risks to the health of pregnant or breast-feeding employees and that of the foetus or child. 5.2 Employers should identify, record and regularly review - 5.2.1 potential risks to pregnant or breast-feeding employees within the workplace; 5.2.2 protective measures and adjustments to working arrangements for pregnant or breast-feeding employees. 5.3 Where appropriate, employers should also maintain a list of employment positions not involving risk to which pregnant or breast-feeding employees could be transferred. 5.4 Employers should inform employees about hazards to pregnant and breast feeding employees and of the importance of immediate notification of pregnancy. 5.5 Workplace policies should encourage women employees to inform employers of their pregnancy as early as possible to ensure that the employer is able to identify and assess risks and take appropriate preventive measures. 5.6 The employer should keep a record of every notification of pregnancy. 5.7 When an employee notifies an employer that she is pregnant her situation in the workplace should be evaluated. The evaluation should include - 5.7.1 an examination of the employee's physical condition by a qualified medical professional; 5.7.2 the employee's job; 5.7.3 workplace practices and potential workplace exposures that may affect the employee. 5.8 If the evaluation reveals that there is a risk to the health or safety of the pregnant employee or the foetus, the employer must - 5.8.1 inform the employee of the risk; 5.8.2 after consulting the employee and her representative, if any, determine what steps should be taken to prevent the exposure of the employee to the risk by adjusting the employee's working conditions. 5.9 The employee should be given appropriate training in the hazards and the preventive measures taken. 5.10 If there is any uncertainty or concern about whether an employee's workstation or working conditions should be adjusted, it may be appropriate in certain circumstances to consult an occupational health practitioner. If appropriate adjustments cannot be made, the employee should be transferred to an alternative position in accordance with section 26(2) of the BCEA. 5.11 Employers must keep the risk assessment for expectant or new mothers under regular review. The possibility of damage to the health of the foetus may vary during the different stages of pregnancy. There are also different risks to consider for workers who are breast-feeding. 5.12 Arrangements should be made for pregnant and breast-feeding employees to be able to attend antenatal and postnatal clinics as required during pregnancy and after birth. 5.13 Arrangements should be made for employees who are breast-feeding to have breaks of 30 minutes twice per day for breast-feeding or expressing milk each working day for the first six months of the child's life. 5.14 Where there is an occupational health service at a workplace, appropriate records should be kept of pregnancies and the outcome of pregnancies, including any complications in the condition of the employee or child. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 6. The Identification and Assessment of Hazards 6.1 Physical hazards The control of physical hazards in the workplace includes the recognition, evaluation and control of- 6.1.1 exposure to noise, vibration, radiation, electric and electromagnetic fields and radioactive substances; 6.1.2 work in extreme environments; 6.1.3 control of the thermal environment (heating and air conditioning). Schedule One describes the extent to which certain of these physical agents may constitute a hazard to the health and safety of pregnant and breast-feeding employees and suggests methods to prevent or control these hazards. 6.2 Ergonomic hazards The application of ergonomics involves ensuring that work systems are designed to meet the employee's needs for health, safety and comfort. A range of ergonomic risk factors may pose hazards to the health and safety of pregnant and breast-feeding employees and should be identified and assessed as part of the risk assessment programme. These include - 6.2.1 heavy physical work; 6.2.2 static work posture; 6.2.3 frequent bending and twisting; 6.2.4 lifting heavy objects and movements requiring force; 6.2.5 repetitive work; 6.2.6 awkward postures; 6.2.7 no rest; 6.2.8 standing for long periods; 6.2.9 sitting for long periods. Schedule Two describes the extent to which some of these factors may constitute a hazard to the health and safety of pregnant and breast-feeding employees and suggests methods to prevent or control these hazards. 6.3 Chemical hazards Contact with harmful chemical substances may cause infertility and foetal abnormalities. Some chemicals can be passed to the baby during breast-feeding and could possibly impair the health and the development of the child. The Hazardous Chemical Substances Regulations, 1995, issued under OHSA apply to all employers who carry out activities, which may expose people to hazardous chemical substances. These employers must assess the potential exposure of employees to any hazardous chemical substance and take appropriate preventive steps. The Regulations set maximum exposure levels for some 700 hazardous chemical substances. The Hazardous Chemical Substances Regulations require employers to inform and train employees about, and in any substance to which they are or may be exposed. This must include information on any potential detrimental effect on the reproductive ability of male or female employees. Regulation 7(1) of the General Administrative Regulations, 1996, under OHSA requires manufacturers, importers, sellers and suppliers of hazardous chemical substances used at work to supply a Material Safety Data Sheet (MSDS) which must include information on any reproductive hazards. Every employer who uses a hazardous chemical substance must be in possession of the relevant MSDS and must make it available on request to affected persons. With the exception of the Lead Regulations, there are no regulations, which set maximum exposure levels of specific applications for women of childbearing age or pregnant women.' In view of the absence of occupational health standards for the exposure of pregnant or breast-feeding women to chemical substances, care should be taken to minimise exposure to chemicals, which can be inhaled, swallowed or absorbed through the skin. Where this cannot be achieved, employees should be transferred to other work in accordance with section 26(2) of the BCEA. Chemical substances that are known or suspected to constitute a hazard to pregnant or breast-feeding women and to the foetus or child are listed in Schedule Three below. 6.4 Biological hazards Many biological agents, such as bacteria and viruses, can affect the unborn child if the mother is infected during pregnancy. Biological agents may also be transferred through breast-feeding or by direct physical contact between mother and baby. Health workers, including service workers in health-care facilities and workers looking after animals or dealing with animal products are more likely to be exposed to infection than other workers. Employees who have close contact with young children, such as teachers and edu-care workers, are at increased risk of exposure to rubella (German measles) and varicella (chicken pox). Universal hygiene precautions are required to prevent disease. These include high standards of personal hygiene, surveillance of staff in high-risk areas, appropriate sterilisation and disinfecting procedures, designation of person to be responsible for health and safety, the use of protective clothing and gloves and the avoidance of eating or smoking in laboratories or other risk areas. Some of the biological agents that are known to constitute a hazard to the health of breast-feeding or pregnant women are listed in Schedule Four. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child 7. Aspects of Pregnancy that may Affect Work Employers and employees should be aware of the following common aspects of pregnancy that may affect work: 7.1 As a result of morning sickness employees may be unable to perform early shift work. Exposure to nauseating smells may also aggravate morning sickness. 7.2 Backache and varicose veins may result from work involving prolonged standing or sitting. Backache may also result from work involving manual handling. 7.3 More frequent visits to the toilet will require reasonable access to toilet facilities and consideration of the employee's position if leaving the work she performs unattended poses difficulties. 7.4 The employee's increasing size and discomfort may require changes of protective clothing, changes to work in confined spaces and changes to her work where manual handling is involved. Her increasing size may also impair dexterity, agility, co-ordination, speed of movement and reach. 7.5 The employee's balance may be affected making work on slippery or wet surfaces difficult. 7.6 Tiredness associated with pregnancy may affect the employee's ability to work overtime and to perform evening work. The employer may have to consider granting rest periods. XXXX Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child Schedule 1 Physical Hazards Hazard What is the Risk How to avoid the Risk Vibration and mechanical shocks Long-term exposure to vibrations may increase the risk of miscarriage and stillbirth. Exposure to shocks or whole body vibrations in the later stages of pregnancy can result in premature labour. It is advised that pregnant workers and those that have recently given birth avoid work that is likely to involve uncomfortable, whole body vibrations, especially at low frequencies, or where the abdomen is exposed to shocks or jolts. Extreme heat The exposure of pregnant and breast-feeding employees to extreme heat may lead to dizziness and faintness, particularly in the case of women performing standing work. Lactation may be impaired by heat dehydration. Employers should limit the exposure of pregnant and breast-feeding workers to extreme heal. Arrangements for access to rest facilities and refreshments should be made in conditions of extreme heat. Extreme cold Work in extremely cold conditions such as cold storage rooms has been associated with problems in pregnancy. Employees must be supplied with thermal protective clothing and their exposure to cold limited in terms of regulation 2 of the Environmental Regulations for Workplaces, made under the Occupational Health and Safety Act (OHSA). Noise Prolonged exposure to noise can elevate the blood pressure of pregnant women and lead to tiredness. Employers should ensure compliance with regulation 7 of the Environmental Regulations for Workplaces, OHSA. Ionising radiation Significant exposure to ionising radiation is known to be harmful to the foetus. Working with radioactive liquids or dusts can result in exposure of the foetus (through ingestion or via contamination of the mother's skin) or a breast-fed baby to ionising radiation. Work procedures should be designed to keep exposure of pregnant women as low as reasonably practicable and below the statutory dose limit for a pregnant woman. pregnant women or breast-feeding mothers should not work where there is a risk of radioactive contamination. Employers of registered radiation workers, including radiographers, must comply with the regulations controlling the use of electronic products issued under the Nuclear Energy Act 131 of 1993. Non-ionising (electromagnetic) radiation It has not been established that the levels of non-ionising electromagnetic radiation likely to be generated by video display units (VDU's) or other office equipment constitutes a risk to human reproductive health. Women who are pregnant or who are planning children and are worried about working with VDU's should discuss their concerns with an occupational health practitioner. The following practical measures can be adopted to limit exposure to electromagnetic fields in offices (emfs): ? Workers should sit at arm's length from the computer (70 cm) and about 120 cm from the backs and sides of co-workers' monitors. ? Workers should have regular breaks from VDU work, as this reduces exposure lime. ? Radiation-reducing glare screens (or shields) can reduce the electrical component of the emfs. However, shields that distort the image on the monitor should not be used. Work in compressed air and diving People who work in compressed air are at risk of developing the bends. It is not clear whether pregnant women are more at risk of getting the bends but potentially the foetus could be seriously harmed by :as bubbles. Pregnant workers should not work in compressed air because of potential harm to the foetus from gas bubbles. For those who have recently given birth there is a small increase in the risk of the bends. The Diving Regulations, 1991, under OHSA, must be complied with. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child Schedule 2 Ergonomic Hazards Hazard What is the Risk How to avoid the Risk Physical and mental strain Excessive physical or mental pressure may cause stress and give rise to anxiety and raised blood pressure during pregnancy. Employees should ensure that hours of work and the volume and pacing of work are not excessive and that, where practical, employees have some measure of control over how their work is organised. Seating should be available where appropriate. Longer or more frequent rest breaks will help to avoid or reduce fatigue. Physically strenuous work Employees whose work is physically strenuous should b considered to be at increased risk of injury when pregnant or after the birth of a child. Heavy physical exertion, including the lifting or handling of heavy loads, should be avoided from early pregnancy onwards. Prolonged sitting or standing Sitting or standing for long periods during pregnancy can have serious health consequences. Standing for long unbroken periods can result in complications during pregnancy such as deep vein thrombosis, varicose veins, premature labour and even miscarriage. Workstations should be adjustable to allow for necessary changes in posture. Pregnant employees who sit for long periods should be provided with a proper chair with lumbar support rest to prevent lower back pain. A footrest could alleviate pain and discomfort in the case of both sitting and standing workers. Pregnant employees who work in a stationary position should be given frequent rest breaks. Mobility during breaks should be encouraged to help prevent swelling of the ankles and improve blood circulation. Where work organisation permits task rotation, this should be done to allow the worker to do tasks that involve standing, sitting and moving. Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child Schedule 3 Chemical Hazards Hazard What is the Risk How to avoid the Risk Anaesthetic gases Exposure to anaesthetic gases during pregnancy can lead to miscarriage. Exposure to high concentrations of anaesthetic gases should be avoided during pregnancy. Carbon Monoxide Risks arise when engines or appliances using petrol, diesel and liquefied petroleum gas are operated in enclosed areas. Carbon monoxide can result in the foetus being starved of oxygen. Occupational exposure to carbon monoxide should be avoided during pregnancy and breast-feeding. Antimitotic (Cytotoxic) drugs Exposure to antimitotic drugs. which are used for treating cancer, damages genetic information in human sperm and egg cells. Some of these drugs can cause cancer. Absorption is by inhalation or through the skin. Workers involved in the preparation and administration of antimitotic drugs should be afforded maximum protection Direct skin contact can be avoided by wearing suitable gloves and gowns. Pregnant employees potentially exposed to cancer drugs should be offered the option of transfer to other duties. Ethylene oxide Ethylene oxide is used mainly in sterilising procedures in hospital. Exposure may occur when sterilised goods are transferred to the aerator after the cycle is complete and when changing the gas tanks. Health risks can be minimised by reducing worker exposure during transfer when the steriliser door is opened. Pregnant employees exposed to ethylene oxide above the acceptable level should be transferred to other duties. Lead Exposure of pregnant and breast-feeding employees to lead affects the nervous system of young children and is detrimental to child development. Contact with lead should be avoided during pregnancy and breast-feeding. The Lead Regulations issued under OHSA must be complied with. These Regulations specify, levels at which employees must be withdrawn from exposure to lead. Mercury and mercury derivatives Organic and inorganic mercury compounds can have adverse effects on the mother and foetus. Women of childbearing age should not be exposed to mercury compounds. Polychlorinated Biphenyls (PCBs) PCBs can cause deformities in the child. Maternal exposure before conception can also affect foetal development as PCBs can be passed on to the foetus through the mother's blood. No pregnant women should be exposed to PCBs at work. Organic solvents Exposure to organic solvents including aliphatic hydrocarbons, toluene and tetrachloroethylene can lead to miscarriage and have a detrimental effect on the foetus. Pregnant women should be protected to exposure against these organic solvents. Pesticides and herbicides Exposure to certain pesticides and herbicides is associated with an increased risk of miscarriage and can adversely affect the development of the child. Exposure to pesticides and herbicides should be avoided or minimised. Alcohol Foetal alcohol syndrome can lead to physical and mental abnormalities in children. Workers in the beverage, catering and associated industries, including wine farming, are particularly at risk. Where appropriate, employees should be informed of and counselled in the hazards associated with foetal alcohol syndrome. Tobacco smoke Tobacco smoke contains carbon monoxide and carcinogenic and other harmful substances. Smoking and the inhalation of environmental smoke affects foetal blood supply and can lead to retarded growth and development and more early childhood diseases. Smoking carries an increased risk of cancer and cardiovascular disease. Care should be taken to ensure that women employees are able to work without being exposed to tobacco smoke Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child Schedule 4 Biological Hazards Hazard How to avoid the Risk Cytomegalovirus Employees should be required to maintain high standards of personal hygiene, wash their hands after each patient contact and use gloves when handling potentially contaminated wastes in order to minimise the risk of infection. Hepatitis General precautions must be taken for all forms of hepatitis. Vaccination is the most effective means available of preventing hepatitis B. Workers must take particular care to avoid mucous membranes and skin coming into contact with potentially contaminated blood or other secretions. HIV Universal precaution is important for workers potentially exposed to HIV. Health care workers should take precautions to prevent needle-stick injuries and exercise care when handling the blood, tissues or mucosal areas of all patients. Rubella (German measles) Rubella vaccine is the most effective means of preventing the disease, and susceptible employees should be immunised. Pregnancy should be avoided for 3 months after vaccination. Varicella (Chicken pox) It is advisable to identify employees who have not previously had chicken pox. Pregnant employees who are known not to be immune to chicken pox and who are exposed to an active case should report to a physician. Toxoplasmosis gondii Control measures against toxoplasmosis gondii for women of reproductive age include high standards of personal and environmental hygiene; the sanitary disposal of cat faeces and avoiding contamination by cat faeces of soil to be tilled for agriculture. Notice No. R.1295 Ministerial Determination 1: Small Business 5 November 1999 BASIC CONDITIONS OF EMPLOYMENT ACT, 1997 MINISTERIAL DETERMINATION 1: SMALL BUSINESS I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby in terms of section 50 of the Basic Conditions of Employment Act, 1997, make a Ministerial Determination establishing condition of employment for employers and employees in Small Businesses, South Africa, in the Schedule hereto and determine the second Monday after the date of publication of this notice as the date from which the provisions of the said Ministerial Determination shall become binding. M. M. S. MDLADLANA Minister of Labour Ministerial Determination 1: Small Business 1. Application 1) This determination applies to employers who conduct businesses employing less than ten employees. 2) To the extent provided for in this determination, this determination varies the application of the Basic Conditions of Employment Act, No. 75 of 1997, to such employers and their employees. 3) This determination must be read in conjunction with the Basic Conditions of Employment Act. 4) Unless otherwise indicated, any word used in this determination has the same meaning as in the Basic Conditions of Employment Act, No. 75 of 1997. 5) A bargaining council agreement or sectoral determination takes precedence over this determination, unless the agreement or determination provides otherwise. 6) This determination does not apply to- a) the employment of domestic workers; b) the public service; c) any employer who conducts more than one business; d) any business formed by the division or dissolution of an existing business. Ministerial Determination 1: Small Business 2. Overtime 1) Despite section 10(1)(b)(ii), an employer may not require or permit an employee to work more than fifteen hours overtime a week. 2) Despite section 10(2), an employer must pay an employee- a) at least one and one third times the employee's wage for the first ten hours of overtime worked in any week; b) at least one and one half times the employee's wage for any overtime in excess of ten hours worked in a week. Ministerial Determination 1: Small Business 3. Averaging of Hours 1) Despite sections 9(1) and (2) and 10(1)(b) of the Basic Conditions of Employment Act, No. 75 of 1997, and clause 2 of this determination, the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a written agreement concluded by an employer and employee. 2) An employer may not require or permit an employee who is bound by an agreement in terms of subclause 1 to work more than- a) an average of forty-five ordinary hours of work in a week over the agreed period; b) an average of ten hours overtime in a week over the agreed period. 3) An agreement in terms of subclause 1 lapses after twelve (12) months. Ministerial Determination 1: Small Business 4. Family Responsibility Leave 1) An employer and an employee may conclude a written agreement in terms of which an employer may reduce an employee's entitlement to annual leave in terms of section 20 of the Basic Conditions of Employment Act, No. 75 of 1997, by the number of days of family responsibility leave on full remuneration granted to the employee at the employee's request in terms of section 27 of the Basic Conditions of Employment Act, No. 75 of 1997. Determination in terms of Section 50: National Bargaining Council for The Road Freight Industry ("NBCRFI") No. R.264 23 March 2001 I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby in terms of section 50 of the Basic Conditions of Employment Act, 1997, make the following Ministerial Determination: 1. Employers or employees in respect of whom the determination applies: All employers and employees covered by the scope of the National Bargaining Council for the Road Freight Industry. 2. The following sections of the Act are replaced or excluded: Sections 22 and 23. 3. Conditions on which the determination is granted: That the agreement pertaining to the ICMTU Sick Fund as published in Government Gazette No. 19057 dated 24 July 1998 is strictly adhered to. 4. Period for which the determination is granted: With effect from 22 November 2000 for the duration of the agreement. M.M.S. MDLADLANA Minister of Labour Notice No. 622 Sectoral Determination 1: Contract Cleaning Sector, South Africa I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of section 51(1) of the Basic Conditions of Employment Act, 1997, make a sectoral determination establishing conditions of employment for employees in the Contract Cleaning Sector, South Africa in the schedule hereto and determine the second Monday after the date pf publication of this notice as the date from which the provisions of the said Sectoral Determination shall become binding. M. M. S. MDLADLANA Minister of Labour Sectoral Determination 1: Contract Cleaning Sector, South Africa 1. Area and Scope of Application 1) This determination shall apply in the Republic of South Africa to every employer in the Contract Cleaning Sector and to all employees in that trade, except- a) a manager; b) administrative personnel; c) any employer or employee who is subject to a bargaining council agreement in terms the Labour Relations Act, 1995; or d) employees who work less than 24 hours a month for an employer. 2) For the purposes of determining the wage rate applicable to an employee, the area where the employee performed that work shall be the area contemplated in clause 3 irrespective of whether or not the employer has an establishment in that area. Sectoral Determination 1: Contract Cleaning Sector, South Africa 2. Definitions Unless the context indicates otherwise, any expression used in this determination and which is defined in the Basic Conditions of Employment Act, 1997, has the same meaning as in that Act, further, unless inconsistent with the context- "administrative personnel" means employees who are charged by the employer with the performance of work entailing responsibility for taking decisions of an administrative nature in the conduct of any activity; "annual leave cycle" means the period of 12 months employment with the same employer. "agreement" includes a collective agreement. "CCMA" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995; "cleaner" means a person employed to clean office, school, business, factory, residential or any other premises, or any airplanes, trucks, cars, buses, trains or any other vehicle requiring to be so cleaned on a contractual basis and/or to clean the furniture and any other object(s) in such premises and vehicles, and/or to perform any work incidental thereto; "Contract Cleaning Sector" means the sector in which employers and employees are associated on a fixed-term or fixed-project contract for the purpose of cleaning or washing by hand or machine, of furniture, windows, carpets, doors, floors, tools, machinery, under supervision at industrial and commercial premises, buildings, and flats that are let commercially or any airplanes, trucks, cars, buses, trains or any other vehicle requiring to be so cleaned; "day" means a period of 24 hours measured from the time when the employee normally commences work. "emergency work" means work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work. "employee" means any person excluding an independent contractor, who works for another person for more than 24 hours per month in the Contract Cleaning Sector and who receives, or is entitled to receive, any remuneration; "establishment" means any premises or part thereof, on or in connection with which one or more employees are employed in the Contract Cleaning Sector; "hourly-rated employee" means an employee whose wage is calculated on an hourly basis notwithstanding the frequency of the payment thereof; "incapacity" means inability to work owing to any sickness or injury other than sickness or injury caused by an employee's own misconduct: Provided that any such inability to work, caused by an accident or scheduled disease for which compensation is payable under the Compensation for Occupational Injuries and Diseases Act, 1993, shall only be regarded as incapacity during any period in respect of which no disablement payment is payable in terms of that Act. "law" includes the common law; "manager" means an employee who is charged by his/her employer with the overall supervision over, responsibility for, and direction of the activities of and establishment and the employees engaged therein; "medical practitioner" means- a) a person entitled to practice as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No 50 of 1974); or b) a traditional healer; "midwife" means a person registered or enrolled to practice as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978); "Month" means a calendar month. "night work" means work performed after 18:00 and before 06:00 the next day; "ordinary hours of work" means the hours of work prescribed in clause 8 but if by agreement between an employer and the employee the Latter works a lesser number of ordinary hours, it means such shorter hours; "overtime" means the time that an employee works during a day or a week in excess of ordinary hours of work; "paid public holiday" means all public holidays declared as such in terms of the Public Holidays Act, 1994 "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning; "shift worker" means an employee who is engaged in shift work in a workplace in which two or three consecutive shifts per day are worked on not more than six day per week; "short time" means a temporary reduction in the number of ordinary hours of work owing to slackness of trade, shortage of raw materials, vagaries of the weather, a breakdown of plant or machinery or buildings that are unfit for use or is in danger of becoming unfit for use. "the Act" means the Basic Conditions of Employment Act ,1997; "Trade" means an industry or a service or a part of an industry or a service; "wage" means that amount of money payable to an employee in terms of clause 3 read with clause 11 in respect of his/her ordinary hours of work: Provided that if an employer regularly pays an employee in respect of such ordinary hours of work an amount higher than that prescribed in clause 3, it means such higher amount, and "weekly wage" has a corresponding meaning; "weekly wage" see "wage"; "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls; "work place" means any place where employees work. Sectoral Determination 1: Contract Cleaning Sector, South Africa 3. Remuneration Hourly-rated employee: An employer shall pay an employee in respect of each hour or part there of (excluding overtime) worked by the employee on any day other than a paid holiday or a Sunday, not less than the hourly wage prescribed in schedule below: AREAS AREA A AREA B AREA C Magisterial districts or Municipal areas of: Alberton, Beliville, Benoni, Boksburg, Brakpan, Germiston, Goodwood, Johannesburg, Kempton Park, Krugersdorp, Kuilsriver, Mitchells Plein, Nigel, Oberholzer, Paarl, Port Elizabeth, Pretoria, Randburg, Randfontein, Roodepoort, Sasolburg, Simons Town, Somerset West, Springs, Stellenbosch, Strand, Cape Town, Uitenhage, Vanderbijlpark, Vereeniging, Westonaria, Wonderboom, and Wynberg. In the rest of Kwa-Zulu Natal excluding any area covered by a bargaining council In the rest of the RSA * RATES PER HOUR RATES PER HOUR RATES PER HOUR MINIMUM WAGES FOR ALL EMPLOYEES First 12 months R6,00 Second 12 months R6,42 First 12 months R5,13 Second 12 months R5,49 First 12 months R4,80 Second 12 months R5,14 Sectoral Determination 1: Contract Cleaning Sector, South Africa 4. Calculation of Remuneration and Wages 1) The wage of an employee shall be calculated as set out hereunder: a) The daily wage of an employee shall be the employee's hourly wage multiplied by the number of ordinary hours worked for that day by such employee as stipulated in clause 3(a), (b) and (c) and an employee shall be paid accordingly. b) The weekly wage of an employee shall be the hourly wage multiplied by the number of ordinary hours work prescribed for such employee in any week as stipulated in Clause 8 and an employee shall be paid accordingly. c) The monthly wage of an employee shall be the weekly wage multiplied by four and one-third. Sectoral Determination 1: Contract Cleaning Sector, South Africa 5. Payment of Remuneration 1) For employees, save as provided in clauses 10(1) and 15(1), an employer must pay to an employee any remuneration that is paid in money- a) daily, weekly, fortnightly or monthly; and b) in cash, by cheque or by direct deposit in an account designated by the employee. 2) Any remuneration paid by cash or by cheque must be given to each employee- a) at the workplace or at a place agreed to by the employer; b) during the employee's working hours or within 15 minutes of the commencement or conclusion of those hours; and c) in a sealed envelope which becomes the property of the employee. 3) An employer must pay remuneration- a) not later than seven days after the completion of the period for which the remuneration is payable; or b) at the termination of the contract of employment. 4) Clause 5(3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund. Sectoral Determination 1: Contract Cleaning Sector, South Africa 6. Information about Remuneration 1) An employer must give an employee the following information in writing on each day the employee is paid: a) the employer's name and address; b) the employee's name or number on the payroll, and workplace; c) the employee's occupation; d) the period for which payment is made; e) the amount and purpose of any deductions made from the remuneration; f) the nett amount paid to the employee; g) if relevant to the calculation of that employee's remuneration- i) the employee's rate of remuneration and overtime rate; ii) the employee's allowance rate; iii) the number of ordinary hours worked by the employee; iv) involving 5 ECC members and 3 officials the number of overtime hours worked by the employee; v) the number of hours worked by the employee on a Sunday or a public holiday during that period, and vi) The written information required in terms of subclause (1) must be given to each employee: h) at the workplace or at a place agreed to by the employee; i) and such envelope or container on which these particulars are recorded or such statement shall become the property of the employee: Provided that i) the particulars prescribed above may be recorded on such envelope or in such statement in code which shall be fully set out and explained in an accompanying notice or in a notice kept posted in some conspicuous place in the establishment, accessible to all employees affected thereby; ii) the amount due to the employee may be paid into the employee's nominated building society or bank account, by manual or electronic funds transfer, by the employer, who shall, however, hand to the employee the aforementioned statement. Sectoral Determination 1: Contract Cleaning Sector, South Africa 7. Deductions and other Acts concerning Remuneration 1) An employer may not make any deductions from an employee's remuneration other than the following: a) an employee agrees in writing to deduction in respect of any accommodation, holiday, sick, medical, insurance, savings, provident or pension fund, trade union subscriptions or debt specified in the agreement. b) If an employee agrees in writing to deductions which the employer has paid or undertaken to pay to- i) any banking institution, building society, insurance business, registered financial institution, local authority, in respect of a payment on a loan granted to such an employee to acquire a dwelling; ii) any other organisation or body in respect of a dwelling or accommodation in a hostel occupied by such employee if such dwelling or hostel is provided through the instrumentality of such organisation or body wholly or partially from finds advanced for the that purpose by the state, a building society or a local authority c) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award. 2) An employer who deducts an amount from an employee's remuneration in terms of subclause (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award. 3) Training fee: Subject to the provisions of any other act, no payment by or on behalf of an employee shall be accepted by an employer, either directly or indirectly, in respect of the employment or training of that employee. 4) Purchase of goods: An employer shall not require an employee to purchase any goods from the employer or from any shop, place or persons nominated by the employer 5) Accommodation, meals and rations and payment in natura: An employer shall not as a condition of employment require the employee to accept accommodation, meals or rations from the employer or from any person or at any place nominated by the employer. An employer shall not as a condition of employment require an employee to receive any in natura form of payment in lieu of wages or a part of the employee's wages. 6) A deduction in terms of subclause (1) may be made to reimburse an employer for loss or damage only if- a) the loss or damage occurred in the course of employment and was due to the fault of the employee; b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; c) the total amount of the debt does not exceed the actual amount of the loss or damage; and d) the total deductions from the employee's remuneration in terms of this subsection do not exceed one-tenth of the employee's remuneration in money. 7) An employer may not require or permit an employee to- a) repay any remuneration except for overpayments previously made by the employer resulting from an error in calculating the employee's remuneration; or b) acknowledge receipt of an amount greater than the remuneration actually received. 8) Except where otherwise provided in this determination, whenever an employee is absent from work other than on the instructions of the employer, a deduction proportionate to the period of such absence and calculated on the basis of the wage which such employee was receiving in respect of the employee's ordinary hours of work at the time of such absence 9) Short time: Whenever the ordinary hours of work specified in the Act are reduced on account of short time, a deduction not exceeding the amount of the employee's hourly wage in respect of each hour of such reduction: Provided that- i) such deduction shall not exceed one third of the employee's weekly wage, irrespective of the number of hours by which the ordinary hours of work were reduced; ii) no deduction shall be made in the case of short time arising out of slackness of trade or shortage of raw materials, unless the employer has given the employee notice on the previous day of the intention to reduce the ordinary hours of work; iii) no deduction shall be made in the case of short time owing to a breakdown of machinery or because the building was unfit for use or is in danger of becoming unfit for use, in respect of the first two hours not worked, unless the employer has given the employee notice on the previous day that no work will be available; iv) if the employee has reported for work, no deductions shall be made in the case of short time owing to bad weather in respect of the first two hours not worked, unless the employer has given the employee notice on the previous working day that no work will be available due to inclement weather; v) Should work be stopped due to bad weather and if an employee has reported for work, the employee will be paid for the hours worked plus two hours. Provided that no fewer than four hours and no more than the previous ordinary day's wage will be paid on such a day. Sectoral Determination 1: Contract Cleaning Sector, South Africa 8. Ordinary Hours of Work 1) An employer may not require or permit an employee to work more than- a) 45 hours in any week; and b) nine hours in any day if the employee works for five days or fewer in a week; or c) eight hours in any day if the employee works on more than five days in a week Sectoral Determination 1: Contract Cleaning Sector, South Africa 9. Overtime 1) An employer who employs 10 or more employees may not require or permit an employee to work overtime otherwise than in terms of an agreement concluded by the employer with the employee and such overtime shall not exceed- a) 3 hours overtime a day; or b) 10 hours overtime in any week. 2) An employer who employs less than 10 employees may not require or permit an employee to work overtime otherwise than in terms of an agreement concluded by the employer with the employee and such overtime shall not exceed- a) 15 hours overtime in any week. Sectoral Determination 1: Contract Cleaning Sector, South Africa 10. Payment of Overtime 1) An employer shall pay an employee who works overtime at a rate of not less than one and a half times the hourly wage in respect of the overtime referred to in clause 9. 2) Any time worked on Sundays and paid public holidays shall be paid in accordance with the provisions of clauses 16 and 17. 3) Despite subclause (1), an agreement may provide for an employer to- a) pay an employee not less than the employee's ordinary wage for overtime worked and grant the employee at least 30 minutes' time off on full pay for every hour of overtime worked; or b) grant an employee at least 90 minutes' paid time off for each hour of overtime worked. 4) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it. 5) An agreement in writing may increase the period contemplated by subclause (4) to 12 months. 6) An agreement concluded in terms of subclause (3)with an employee when the employee commences employment, or during the first three months of employment, lapses after one year Sectoral Determination 1: Contract Cleaning Sector, South Africa 11. Compressed Working Week 1) An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 13, without receiving overtime pay. 2) An agreement in terms of subclause (1) may not require or permit an employee to work- a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Sectoral Determination 1: Contract Cleaning Sector, South Africa 12. Averaging of Hours of Work 1) Despite clause 8(1) and 9(1)(b), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a written agreement. 2) An employer may not require or permit an employee who is bound by a agreement in terms of subclause (1) to work more than- a) an average of 45 ordinary hours of work in a week over the agreed period; b) an average of five hours' overtime in a week over the agreed period. 3) An agreement in terms of subclause (1) lapses after 12 months. 4) Subclause (3) only applies to the first two agreements concluded in terms of subclause (1). Sectoral Determination 1: Contract Cleaning Sector, South Africa 13. Meal Intervals 1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. 2) During a meal interval the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee. 3) An employee must be remunerated- a) for a meal interval in which the employee is required to work or is required to be available for work; and b) for any portion of a meal interval that is in excess of 75 minutes unless the employee lives on the premises at which the workplace is situated. 4) For the purposes of subclause (1), work is continuous unless it is interrupted by an interval of at least 60 minutes. 5) An agreement in writing may- a) reduce the meal interval to not less than 30 minutes; b) dispense with a meal interval for an employee who works fewer than six hours on a day. c) when on any day by reason of overtime worked an employer is required to give an employee a second meal interval, such interval may be reduced to not less than 15 minutes. Sectoral Determination 1: Contract Cleaning Sector, South Africa 14. Rest Periods 1) An employer shall grant to each of the employees a rest interval of not less than 15 minutes as near as practicable in the middle of the first and second work period of the day, and during such interval such employee shall not be required or permitted to perform any work, and such interval shall be deemed to be part of the ordinary hours of work of such employee. 2) An employer must allow an employee- a) a daily rest period of at least twelve consecutive hours between ending and recommencing work; and b) a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday. 3) A daily rest period in terms of subclause (1)(b) may, by written agreement, be reduced to 10 hours for an employee- a) who lives on the premises at which the workplace is situated; and b) whose meal interval lasts for at least three hours. 4) Despite subclause (1)(c), an agreement in writing may provide for- a) a rest period of at least 60 consecutive hours every two weeks; or b) an employee's weekly rest period reduced by up to eight hours in any week if the rest period in the following week is extended equivalently. Sectoral Determination 1: Contract Cleaning Sector, South Africa 15. Payment for Work on a Sunday 1) An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one-half times the employee's wage for each hour worked. 2) If an employee works less than the employee's ordinary shift on a Sunday and the payment that the employee is entitled to in terms of subclause (8) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage. 3) Despite subclause (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subclause (1) and (2). 4) Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of clause 8, but is taken into account in calculating the overtime worked by the employee in terms of clause 9(1)(b). 5) If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. 6) An employer must grant paid time off in terms of subclause (3) within one month of the employee becoming entitled to it. 7) An agreement in writing may increase the period contemplated by subclause (6) to 12 months. Sectoral Determination 1: Contract Cleaning Sector, South Africa 16. Night Work 1) An employer, who requires or permits an employee to perform night work, may do so, provided that- a) it is by agreement; b) the employee receives in addition to the wage, an allowance of not less than 10 per cent of the hourly wage for each hour or part of an hour worked by the employee on night work; c) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift. 2) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must- a) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands- i) of any health and safety hazards associated with the work that the employee is required to perform; and ii) of the employee's right to undergo a medical examination in terms of paragraph (b); b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards as set out in paragraph (a)- i) before the employee starts, or within a reasonable period of the employee starting, such work; and ii) at appropriate intervals the employee continues to perform such work; and c) transfer the employee to a suitable day work within a reasonable time if- i) the employee suffers from health conditions associated with the performance of night work; and ii) it is practicable for the employer to do so. 3) For the purposes of subclause (2) an employee works on a regular basis if the employee works for period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year. Sectoral Determination 1: Contract Cleaning Sector, South Africa 17. Public Holidays 1) An employer may not require an employee to work on a public holiday except in accordance with an agreement. 2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay- a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day; b) an employee who does work on the public holiday- i) at least double the amount referred to in paragraph (a); or ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day. 3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to- a) the employee's ordinary daily wage; plus b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method. 4) An employer must pay an employee for a public holiday on the employee's usual pay day. 5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Sectoral Determination 1: Contract Cleaning Sector, South Africa 18. Annual Leave 1) An employer must grant to an employee at least: a) 21 consecutive days' annual leave on full remuneration in respect of each annual leave cycle; or b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid; or c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid. 2) 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 on which the employee would ordinarily have worked. 3) The employer shall pay an employee in respect of the leave prescribed in subclause (1) an amount not less than three times the weekly wage which the employee was receiving immediately prior to the date on which the leave commenced. 4) The leave prescribed in subclause (1) shall be granted and be taken at a time to be fixed by the employer: Provided that- a) if such leave has not been granted earlier, it shall be granted and be taken not later than six months after the end of the annual leave cycle; b) the period of leave shall not be concurrent with any period- i) during which an employee is absent on sick leave in terms of clause 19 amounting in the aggregate to not more than 10 weeks in any period of 12 months; ii) during which the employee is under notice of termination of employment in terms of clause 23. c) If so requested an employer may grant an employee 12 days occasional leave on full pay in an annual leave cycle. d) An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave granted on full remuneration to the employee in a annual leave cycle. 5) The remuneration in respect of the leave prescribed in subclause (1), read with subclause (3), shall be paid not later than the last working day before the date of commencement of the leave. 6) Upon termination of employment the employer shall pay the employee the pay in respect any period of leave which has accrued to the employee but was not granted to the employee before the date of termination of the employment. 7) If the employee has been in employment longer than four months, in respect of the employee's annual leave entitlement during an incomplete annual leave cycle as defined in subclause (1)- i) one day's remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or ii) remuneration calculated on any basis that is at least as favourable to the employee as that calculated in terms of subparagraph (i). 8) For the purposes of this clause the expressions "employment" and "period of employment" shall be deemed to include any time during which the employer requires an employee not perform emergency work. 9) Closing of establishment: a) Notwithstanding anything to the contrary contained in this clause, an employer may for the purpose of annual leave at any time, but not more than once in any period of 12 months, close the establishment for 21 consecutive days, and in that case the employer shall remunerate the employee in terms of subclause (3) read with subclause (4)(d) as the case may be; b) An employee who at the date of the closing of an establishment or the portion thereof in which the employee is employed, is not entitled to the full period of annual leave prescribed in subclause (1) shall, in respect of any leave due to the employee be paid by the employer at the employee's rate of remuneration immediately before the closing of the establishment, and for the purposes of annual leave thereafter employment shall be deemed to commence on the date of such closing of the establishment or portion of the establishment, as the case may be. Sectoral Determination 1: Contract Cleaning Sector, South Africa 19. Sick Leave 1) During every sick leave cycle of 36 consecutive months of employment with the employer an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. Provided that- a) in the first 6 months of employment an employer shall grant an employee one-day's paid sick leave for every 26 days worked. 2) An employer may, as a condition prior to payment of any amount claimed in terms of this clause by an employee in respect of any absence from work- a) for more than three consecutive working days; or b) on the working day immediately preceding or the working day immediately succeeding a Sunday or public holiday as defined, require the employee to produce a certificate within a reasonable period, signed by a registered medical practitioner, traditional healer or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament stating the nature and duration of the employee's incapacity; c) An employer is not required to pay an employee in terms of this clause if the employee has been absent from work for more than three consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury. 3) For the purpose of this clause- a) "employment" shall be deemed to include any period during which an employee is absent- i) on leave in terms of clause 18; ii) on the instructions or at the request of the employer; iii) on sick leave in terms of subclause (1) or owing to incapacity in the circumstances set out in subclause (4); iv) for any reason not being in breach of the contract of employment amounting in the aggregate to not more than 36 work-days in a cycle of 36 consecutive months; and v) any time during which an employee is required by the employer not to do work because of bad weather, slackness of the trade or a breakdown of machinery or plant; and vi) any period of employment, which an employee has had with the same employer immediately before the date on which this determination became binding, and any sick leave on full pay granted under this determination. 4) This clause does not apply to an inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries No. 130 of 1993), or except in respect of any period during which no compensation is payable in terms of those Acts. Sectoral Determination 1: Contract Cleaning Sector, South Africa 20. Maternity Leave 1) An employee is entitled to at least four consecutive months' maternity leave. 2) An employee may commence maternity leave- a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child. 3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) An employee who has a miscarriage during the third semester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. 5) An employee must notify an employee in writing, unless the employee is unable to do so, of the date on which the employee intends to- a) commence maternity leave; and b) return to work after maternity leave. 6) Notification in terms of subclause 5 must be given- a) at least four weeks before the employee intends to commence maternity leave; or b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. Sectoral Determination 1: Contract Cleaning Sector, South Africa 21. Protection of Employee before Birth and after Birth of a Child 1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of the child. 2) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are not less favourable than her ordinary terms and conditions of employment, if- a) the employee is required to perform night work, as defined in clause 2 or her work poses a danger to her health or safety or that of her child; and b) it is practicable for the employer to do so. Sectoral Determination 1: Contract Cleaning Sector, South Africa 22. Family Responsibility Leave 1) This clause applies to an employee- a) who has been in employment with an employer for longer than four months; and b) who works for at least four days a week for that employer. 2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days' paid leave, which the employee is entitled to take- a) when the employee's child is born; b) when the employee's child is sick; or c) in the event of the death of- i) the employee's spouse or life partner; or ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 3) Subject to subclause (5), an employer must pay an employee for a day's family responsibility leave- a) the wage the employee would ordinarily have received for work on that day; and b) on the employee's usual payday. 4) An employee may take family responsibility leave in respect of the whole or a part of a day. 5) Before paying an employee for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in subclause (2) for which the leave was required. 6) An employee's unused entitlement to leave in terms of this section lapses at the end of the annual leave cycle in which it accrues. 7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this section. Sectoral Determination 1: Contract Cleaning Sector, South Africa 23. Termination of Employment 1) Subject to the provisions of the Labour Relations Act of 1995 an employer or an employee, who desires to terminate the contract of employment, shall give notice in writing, except when it is given by an illiterate employee- a) during the first four weeks of employment, not less than one working day's; b) four weeks, if the employee has been employed for more than four weeks. c) no agreement may require or permit an employee to give a period of notice longer than that required of the employer. d) an employee or employer may terminate the contract without notice by paying the employee or the employer, as the case may be, in lieu of such notice not less than in the case of- i) one working day's notice, the daily wage the employee is receiving at the time of such termination; ii) two weeks' notice, double the weekly wage the employee is receiving at the time of such termination. Provided that this shall not affect- aa) the right of an employer or an employee to terminate the contract without notice for any cause recognised by law as sufficient; bb) provided further where the wage of an employee at the date of termination has been reduced by deductions in respect of short time, the expression is receiving at the time of such termination" in terms of proviso (ii) of subclause (2)(d) shall, when an employer pays an employee in lieu of notice, be deemed to mean "would have received at the time of such termination had no deduction been made in respect of short-time". 2) The notice prescribed in subclause (1) shall be given on any working day: Provided that- a) the period of notice shall not run concurrently with, nor shall notice be given during, an employee's absence on leave granted in terms of clause 18, or on sick leave granted in terms of clause 19, or owing to incapacity in terms of clause 19(4) where such absences amount in the aggregate to not more than 10 weeks in any period of 12 months' employment with the same employer; and Sectoral Determination 1: Contract Cleaning Sector, South Africa 24. Severance Pay 1) For the purposes of this clause, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. 2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with clause 4. 3) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subclause (2) 4) The payment of severance pay in compliance with this clause does not affect an employee's right to any other amount payable according to law. 5) If there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to the CCMA. Sectoral Determination 1: Contract Cleaning Sector, South Africa 25. Uniforms, Overalls, Protective Clothing and Safety Equipment 1) An employer shall supply in serviceable condition, free of charge, any uniform, overall, gumboots or other protective clothing which the employer requires the employee to wear or which by any law the employer is required to provide for the employee, and any such uniform, overall, gumboots or other protective clothing shall remain the property of the employer. 2) The employer must issue articles indicted in subclause (1) within seven days after an employee has commenced work provided that- i) where an employees health and safety is at risks such articles must be issued immediately 3) No employer shall make any deduction from the wages of any employee in regard to any article provided to that employee in terms of subclause (1) unless the loss or damage occurred in the course of employment and was due to the fault of the employee; if 4) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; 5) the total amount of the debt does not exceed the actual amount of the loss or damage; 6) the total deductions from the employee's remuneration in terms of this subclause do not exceed one-tenth of the employee's weekly wage. Sectoral Determination 1: Contract Cleaning Sector, South Africa 26. Written Particulars of Employment 1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing- a) the full name and address of the employer; b) the name and occupation of the employee, or a brief description of the work for which the employee is employed; c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this; d) the date on which the employment began; e) the employee's ordinary hours of work and days of work; f) the employee's wage or the rate and method of calculating wages; g) the rate of pay for overtime work; h) any other cash payments that the employee is entitled to; i) any payment in kind that the employee is entitled to and the value of the payment in kind; j) how frequently remuneration will be paid; k) any deductions to be made from the employee's remuneration; l) the leave to which the employee is entitled; m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate; n) a description of any council or sectoral determination which covers the employer's business; o) any period of employment with a previous employer that counts towards the employee's period of employment; p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained. 2) When any matter listed in subclause (1) changes- a) the written particulars must be revised to reflect the change; and b) the employee must be supplied with a copy of the document reflecting the change. 3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 4) The employer must keep written particulars in terms of this clause for a period of 12 months after the termination of employment. Sectoral Determination 1: Contract Cleaning Sector, South Africa 27. Informing Employees of their Rights 1) An employer must ensure that a copy of the Determination is available and accessible to the employee. 2) give a copy of that sectoral determination- i) to an employee who has paid the prescribed fee; and ii) free of charge, on request, to an employee who is a registered trade union representative Sectoral Determination 1: Contract Cleaning Sector, South Africa 28. Certificate of Service 1) On termination of employment an employee is entitled to a certificate of service stating- a) the employee's full name; b) the name and address of the employer; c) a description of any council or sectoral employment standard by which the employer's business is covered; d) the date of commencement and date of termination of employment; e) the title of the job or a brief description of the work for which the employee was employed at date of termination; f) the remuneration at date of termination; and g) if the employee so requests, the reason for termination of employment. Sectoral Determination 1: Contract Cleaning Sector, South Africa 29. Attendance Register 1) An employer shall provide an attendance register substantially in the prescribed format, in which the employer shall record in ink or indelible pencil the name and class of each of the employees and if an employee is unable to write, the employer shall on the employee's behalf for each day worked and on that day make the necessary entries in the presence of a person nominated by the employee, and shall sign such entries. 2) An employer may, instead of an attendance register, provide a semi-automatic time recorder which records substantially the same information as is required to be kept in the attendance register specified in subclause (1). 3) Unless prevented from doing so by unavoidable causes, every employee shall, in respect of each day worked on that day- a) record in ink or indelible pencil in such attendance register referred to in subclause (1)- i) the day of the week; ii) the time work commenced; iii) the time of commencement and termination of all meal or other intervals which are not deemed as ordinary hours of work; iv) the time of finishing work for the day; v) the time of commencement and termination of overtime worked for the day; vi) the time of commencement and termination of work on a Sundays; vii) the time of commencement and termination of work on a public holiday; viii) the total amount of hours worked for the day; and ix) the employee's signature; b) in an establishment where a semi-automatic time recorder is provided, make an entry by means of such recorder to show the following: i) the time work commenced; ii) the time of commencement and termination of all meal or other intervals which are not deemed as ordinary hours of work; and iii) the time of finishing work for the day 4) An employer shall retain such attendance register referred to in subclause (1) or the information recorded by a semi-automatic time recorder referred to in subclause (2), as the case may be, for a period of not less than three years after the date of the last entry therein or thereon. Sectoral Determination 1: Contract Cleaning Sector, South Africa 30. Enforcement 1) Enforcement of this determination is done in term of chapter ten of the Basic Conditions of Employment Act, No. 75 of 1997. All the provisions of Wage Determination 482, Contract Cleaning Trade, South Africa published under Government Notice No. R.1484 of 20 November 1998 will be cancelled by this Determination with effect from the date of publication. Sectoral Determination 1: Contract Cleaning Sector, South Africa Establishment of a Provident Fund I, Membathisi Mphumzi Shepard Mdladlana, Minister of Labour, in terms of Section 52 (1), read with Section 55(4)(m), of the Basic Conditions of Employment Act, No 75 of 1997, hereby invite interested providers to establish and administer a Provident Fund for the Contract Cleaning Sector as set out in the Schedule below. Potential providers should forward their proposals to: The Directorate: Employment Standards, Department of Labour, Private Bag X117, Pretoria within 60 days of the publication of this notice. M M S MDLADLANA,MP Minister of Labour Gazetted on 10 November 2000 in GG 21743 as Sectoral Determination 4 (not 1) which is the Clothing and Knitting Sector. No correction notice amending this schedule to Sectoral Determination 1 has been gazetted yet. Establishment of a Provident Fund for the Contract Cleaning Sector 1. Topic 1.1 The purpose of this notice is to invite interested providers to establish and administer a provident fund for the Contract Cleaning Sector. A contribution collection service is also required. 2. Back Ground 2.1 Section 55(4)(m) of the Basic Conditions of Employment Act, 1997 stipulates that the Minister of Labour may make a sectoral determination regulating pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds on recommendation of the Employment Conditions Commission. 2.2 An investigation into minimum wages and conditions of employment for the Contract Cleaning Sector was completed in 1999 and a sectoral determination published on 14 May 1999. Provident fund provisions were not included in the Sectoral Determination since the Employment Conditions Commission had recommended that the legislation of a provident fund stand over until the Sector has completed its deliberations on the issue. 2.3 The sector consists of approximately 326 employers that employ an estimated 55 000 employees, nationally. A bargaining council is registered for the sector in KwaZulu Natal. The agreement for the Bargaining Council Contract Cleaning (Natal) covers approximately 11 000 employees or 20% of all employees in the sector. 2.4 The employers organizations and employee organizations active in the sector are: ? National Contract Cleaning Association (NCCA) ? National Organization of Employers South Africa (NOESA) ? Consolidated Employers Association of South Africa (CEASA) ? Transport and General Workers Union (TGWU) ? NASAWU ? SACSAWU ? NEGEWU ? BAWU ? FOCSWU ? HOTELICMA ? FGWU 2.6 The NCCA and the Trade Unions mentioned in point 2.4 have formed a Bargaining Forum that negotiates wages and conditions of employment. The NCCA represents the majority (220) of employers in the sector. 2.7 In an agreement signed on 24 November 1998 the parties to the Bargaining Forum had agreed to a provident fund contribution of 4%. 2.8 Minimum wages are determined for the sector as contained in the wage schedule below. The wages became binding on 24 May 1999: AREAS AREA A AREA B AREA C Magisterial districts or Municipal areas of: Alberton, Bellville, Benoni, Boksburg, Brakpan, Germiston, Goodwood, Johannesburg, KemptonPark, Krugersdorp, Kuilsriver, Mitchells Plain, Nigel, Oberholzer, Paarl, Port Elizabeth, Pretoria, Randburg, Randfontein, Roodepoort, Sasolburg, Simons Town, Somerset West, Springs, Stellenbosch, Strand, Cape Town, Uitenhage, Vanderbijlpark, Vereeniging, Westonaria, Wonderboom, and Wynberg In the rest of KwaZulu Natal excluding any area covered by a bargaining council In the rest of the RSA* RATES PER HOUR RATES PER HOUR RATES PER HOUR MINIMUM WAGES FOR ALL EMPLOYEES First 12 months R6,00 Second 12 months R6,42 First 12 months R5,13 Second 12 months R5,49 First 12 months R4,80 Second 12 months R5,14 2.9 The sector is labour intensive and the majority of employees consist of women. Fixed contracts are concluded with clients. The duration of these contracts is normally one year. 3. Tasks that the provider will be required to carry out 3.1 The providers are required to establish and administer a national provident fund for the Contract Cleaning Sector. The provider will be expected to submit quotations pertaining to the following services: 3.1.1 Benefit Portfolio 3.1.2 Collection of Contributions Service 3.1.3 Administrative Service 3.1.4 Investment Portfolio 3.2 Providers may submit quotations to render a collection of contribution or administrative service only. 3.3 To facilitate the quotation/tendering process all providers have to answer the following questions as thoroughly as possible. 3.3.1 Contribution Collection/Credit Control a) Will you fulfill this function? b) How many full-time staff will be employed to fulfill this function? c) How frequently will you report to the Board of Trustees? d) How do you envisage establishing the initial database? e) Should the Contract Cleaning Sector decide to establish a Bargaining Council some time in the future would you be prepared to outsource this function to the Council together with all the historical data? f) If so, how do you envisage managing the transition with specific reference to? Staffing Training Computer software Computer hardware g) Would your cost as quoted for this function fall away once the Bargaining Council is fully functional? h) What will your cost be for this function expressed as % of total annual payroll? 3.3.2 Administration Service a) What is the scope of your administration service? b) Does your fee include the following? Administration manuals? Toll free call centres? Helpdesks? Customized stationery? Centralized or decentralized administration delivery? c) Will the fund be registered as a private or an underwritten fund? d) How many full-time staff will be employed to fulfill this function? e) Will you enter into a written administration agreement with the Industry? f) Will you be prepared to commit yourself in writing to specific turnaround times in service delivery? (Please stipulate costs if any of the above services are not included in your fee). g) What will your cost for this service be expressed as a % of total annual salaries excluding Contribution Collection! Credit Control per item above? h) Indicate what statutory obligations have to be adhered to that are not covered by your fees. 3.3.3 Risk Benefits (Death, Disability and Funeral Cover) a) Please state your costs expressed as a % of total annual payroll. b) State the extent of your risk exposure and the name of your reassurer. c) Would you be prepared to enter into a profit sharing agreement with the Industry and if so, on what basis? d) State whether your costs are likely to be sustained in the long term. e) State whether there will be medical requirements when a new member joins. f) What is the minimum number of employees needed for you to hold your quoted rates: ? On take on? ? After three months? ? After six months? ? After one year? g) Can you guarantee your quoted rates irrespective of the claims history? h) What will happen if losses are incurred? i) Who will be doing the re-insurance in terms of the Insurance Act? j) Will the retirement portion of the contributions have to be invested with your organization or can it be invested anywhere the Board of Trustees chooses? k) Will your rules and policies create an "asset locked" imposition and will there be penalties if the Board of Trustees wants to disinvest? l) What are your underwriting conditions? - 3.3.4 Board of Trustees/Secretarial and Advisory Service a) Does your fee include the cost to assist the Industry with the appointment and training of the Board of Trustees? b) Do you have the facility to train the Board of Trustees? c) How many formal meetings do you anticipate will be held annually? d) Does your costs include the provision of formal agendas and minutes for Board of Trustees Meetings? e) Does your cost include the provision of an advisory service? f) Does your cost include an annual review of the fund's benefit structure? g) Does your cost include the availability of an Actuary? h) Will you be charging any additional consultancy fee for services not mentioned above? (E.g. investment advisory service)? (Please stipulate cost if any of the above services are not included in your fee). 3.3.5 Communication a) Does your fee include the following? ? Annual benefit statements? ? Member booklets? ? Newsletters (State frequency)? ? On site presentations? (Please stipulate costs if any of the above services are not included in your fee). 3.3.6 Existing Employer Funds a) How do you propose the Department of Labour deal with existing funds? b) Will you assist in the formulation of an exemption policy? c) Will there be an additional cost for this service? 3.3.7 Employment Equity/Affirmative Action a) Do you have a formal EE/AA policy? b) If so, what is your current overall staff composition and what are your targets for the next 5 years? c) What is your current composition within the department! division! business unit, which will be dealing specifically with the Cleaning Industry and the quotas for the next 5 years? 3.3.8 Establishment Periods How long will it take before the service/s are fully operational? 4. Timeframes 4.1 The Department of Labour would like the representations to be submitted within 90 days after the publication of the notice. 5. Proposals 1 Detailed cost structure 15 2 Investment history 20 3 Benefit structure 15 4 Quality of service 15 5 Employment Equity 5 6 Acceptability to organised business 5 7 Acceptability to organised labour 5 6. Other Conditions 6.1 A shortlist of Providers may be requested to verbally present their proposal to the Directorate, Minimum Standards and other role players in the Contract Cleaning Sector. 6.2 A briefing session will be held on _______________ Venue: Room 102 (M), Laboria House, C!o Paul Kruger and Schoeman Street, Pretoria. Time: Sectoral Determination : Civil Engineering Sector, South Africa No. R. 204 2 March 2000 I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby in terms of section 56 (1) of the Basic Conditions of Employment Act, 1997, amend Sectoral Determination 2 in Government Gazette No. 20618 dated 12 November 1999 by replacing the existing schedule with the schedule below, and fix the second Monday after the date of publication of this notice as the date from which the provisions of this determination shall be binding upon all employers and employees in the Sector. M. M. S. MDLADLANA, MP Minister of Labour Sectoral Determination : Civil Engineering Sector, South Africa 1. Definitions Unless the context indicates otherwise, any expression which is used in this determination and which is defined in the Basic Conditions of Employment Act, 1997 has the same meaning as in that Act; further, unless inconsistent with the context - "administrative personnel" mean employees who are charged by the employer with the performance of work entailing responsibility for taking decisions of an administrative nature in the conduct of any activity; "employee" means - a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and b) any other person who in any manner assists in carrying on or conducting the business of an employer. "emergency work" means any work which owing to unforeseen circumstances such as fire, storm, land subsidence, accident, epidemic, act of violence, theft, a breakdown of plant, motor vehicles or machinery or a breakdown or threatened breakdown of structures, or any critical operational requirement, must be done without delay; "establishment" means any premises or construction site or part thereof in, on or in connection with which one or more employees are employed in the Civil Engineering sector; "foreperson" means an employee who is in charge of employees in an establishment or section of an establishment, who exercises control over such employees, and who is responsible for the efficient performance by them of their duties; "hourly-rated employee" means an employee whose remuneration is calculated on an hourly basis notwithstanding the frequency of the payment thereof, and who is not a salaried employee; "law" includes the common law; "local authority" means a 'local government body' as defined in the Local Government Transition Act, 1993; "manager" means an employee who is charged by the employer with the overall supervision over, responsibility for, and direction of the activities of an establishment or a department of an establishment and the employees engaged therein; "overtime" means the time that an employee works during a day, or a week, in excess of the ordinary hours of work prescribed for such employee in clause (1), but does not include work performed on a Sunday or a paid public holiday; "paid public holiday" means any day that is a public holiday in terms of the Public Holiday Act, 1994 (Act No. 36 of 1994); "pay" means payment of remuneration in cash or by cheque or by other means; "permanent employee" means any employee who is not an employee employed in terms of a limited duration contract; "piece-work" means any system under which an employee's remuneration is based on the quantity of work done; "salaried employee" means an employee whose remuneration is calculated on a monthly basis notwithstanding the number of hours or days actually worked, who performs work generally understood to be that of a salaried employee, and who is not a "hourly-rated employee"; "self-propelled plant" means a power-driven or pedestrian-operated self-propelled vehicle, other than a motor vehicle, which is designed or adapted principally to perform with or without a towed attachment, one or more functions while moving, and may also-perform such functions while standing still; "short-time" means a temporary reduction in the number of ordinary hours of work owing to vagaries of the weather, a slackness of trade, a shortage of materials, a breakdown of plant or machinery or a breakdown or threatened breakdown of structures, or any unforeseen contingencies and/or circumstances beyond the control of the employer or a temporary reduction in the number of ordinary hours of work owing to riots, unrest or acts of terrorism or disorder, which directly affect the employer's ability to provide work; "stationary plant" means a power-driven device, whether or not mounted on a self-propelled or non-self-propelled vehicle, which is designed or adapted principally to perform one or more functions while standing still; "wage" means the amount of money payable to an employee in terms of clause 3 in respect of the ordinary hours of work as prescribed in clause 8(1): Provided that - a) if an employer regularly pays an employee in respect of such ordinary hours of work an amount higher than that prescribed in clause 3, it means such higher amount; b) the first proviso shall not be so construed as to refer to or include any remuneration which an employee who is employed on any basis provided for in clause 20 receives over and above the amount which the employee would have received had he or she not been employed on such a basis. Sectoral Determination : Civil Engineering Sector, South Africa 2. Area And Scope of the Determination This determination shall apply to every employer and employee in the Civil Engineering Sector, as defined in subclause (2), in the Republic of South Africa, excluding any employee who is employed as a manager or in a position more senior than that of a manager. 1) The Civil Engineering Sector means the sector in which employers (other than local authorities) and employees are associated for the purpose of carrying out work of a civil engineering character and includes such work in connection with one or more of the following activities: a) The construction of aerodrome runways or aprons; aqueducts; bins or bunkers; bridges; cable ducts; caissons; rafts or other marine structures; canals; cooling, water or other towers; dams; docks; harbours; quays or wharves; earthworks; encasements; housings or supports for plant, machinery or equipment; factory or works chimneys; filter beds; land or sea defence works; mine headgear; pipelines; piers; railways; reservoirs; river works; roads or streets; sewerage works; sewers; shafts or tunnels; silos; sports fields or grounds; swimming baths; viaducts or water treatment plants; b) excavation work or the construction of foundations, lift shafts, piling, retaining walls, stairwells, underground parking garages or other underground structures; c) the asphalting, concreting, gravelling, levelling or paving of parking areas, pavements, roads, streets, aerodrome runways or aprons, premises or sites; and further includes - i) any work of a similar nature or work incidental to or consequent on any of the aforesaid activities; and ii) the making, repairing, checking or overhauling of tools, vehicles, plant, machinery or equipment in workshops which are conducted by employers engaged in any of the activities referred to in subclauses (2)(a), (2)(b) and (2)(c); but excludes - aa) work in connection with any one or more of the activities specified in subclause (2) (b) where such work, when undertaken in connection with the erection of structures having the general character of buildings and irrespective of whether or not such work involves problems of a civil engineering character, is carried out by the employers erecting such structures; bb) work in connection with any one or more of the activities specified in subclause (2)(c) when undertaken as an incidental operation in connection with the erection of structures having the general character of buildings or when undertaken by the employers erecting such structures; cc) any work falling within the scope of the Iron, Steel, Engineering and Metallurgical Industries as defined in the Main Agreement of the Bargaining Council for that Industry. 2) The provisions of clauses 8 to 14 of this determination shall not apply to an employee whose earnings exceed an amount as determined by the Minister of Labour in terms of section 6(3) read with section 59(2)(c) of the Basic Conditions of Employment Act, 1997. 3) The provisions of the Basic Conditions of Employment Act, 1997 shall apply in respect of any employer or employee in the Civil Engineering Sector in so far as a provision thereof provides for any matter that is not regulated by this sectoral determination. Sectoral Determination : Civil Engineering Sector, South Africa 3. Remuneration 1) Exclusions: The provisions of subclauses 2 and 3 shall not apply to an employer who is engaged in the Civil Engineering Industry only, aid employs altogether not more than twenty employees at all times in or in connection with such business and whose annual turnover in such business does not exceed 8500 000. 2) Minimum wages: The minimum wage which an employer, other than the employer referred to in subclause 1, shall pay to employees covered by this determination, with effect from the date on which this determination comes into operation the following: Table 1: Minimum wages for all employees in the Civil Engineering Sector Table 1: Minimum wages for all employees in the Civil Engineering Sector MINIMUM ENTRY LEVEL WAGE c/HOUR PROVINCE AREA Date of coming into effect until 2/09/2002 3/09/2001 until 2/09/2001 3/09/2002 and thereafter Gauteng The whole of the Gauteng 612c 660c 660c + CPI* + 2% North West The magisterial district of Klerksdorp and Potchefstroom 612c 660c 660c + CPI + 2% The remainder of the North West 483c 521c 521c + CPI + 2% Mpumalanga The Magisterial Districts of Balfour, Bethal, Highveld Ridge, Middleburg, Standerton and Witbank. 612c 660c 660c + CPI + 2% The remainder of the Mpumalanga. 483c 521c 521c + CPI + 2% Northern Province The whole of the Northern Province 483c 521c 521c + CPI + 2% Free State The magisterial district of Bloemfontein, Odendaalsrus, Sasolburg, Virginia and Welkom 612c 660c 660c + CPI + 2% The remainder of the Free State 483c 521c 521c + CPI + 2% Table 3 (Continue): Minimum wages for all employees in the Civil Engineering Sector MINIMUM ENTRY LEVEL WAGE c/HOUR Province Area Date of coming into effect until 2/09/2002 3/09/2001 until 2/09/2001 3/09/2002 and thereafter Western Cape The whole of the Western Cape 612c 660c 660c + CPI + 2% Eastern Cape The whole of the Eastern Cap 612c 660c 660c + CPI + 2% Northern Cape The whole of the Northern Cape 483c 521c 521c + CPI + 2% KwaZulu-Natal The whole of the KwaZulu-Natal 591c 638c 638c + CPI + 2% * "CPI"- Consumer Price Index for the period May 2001 to May 2002. 3) Across the board increases: a) every employee employed in the Civil Engineering Sector on the date on which this determination comes into operation shall be entitled to an increase of 16.6% on the wage currently paid to that employee: Provided that- i) where an increase in terms of this subclause results in a wage lower than the minimum wage specified in subclause (2), such minimum wage should apply. ii) any employer who has during the period 31 August 1998 and the date on which this determination comes into operation, granted an employee an increase or increases- aa) equal to the increase specified in this clause, shall be deemed to have complied with the provisions of this clause; or ab) less than that specified in this clause, shall be required to grant an increase equal to the difference between the increase or increases already granted by the employer and that prescribed in this clause. b) every employee employed in the Civil Engineering Sector on the 3 September 2001 shall be entitled to an increase of 8% in the wage then paid to that employee. c) every employee employed in the Civil Engineering Sector on the 2 September 2002, shall be entitled to an increase of the Consumer Price Index (CPI) plus 2% of the wage then paid to that employee. The Consumer Price Index will be at that Index as published by Statistics South Africa for the year on year percentage increase in the Consumer Price Index for all income groups for the period May 2001 to May 2002. 4) Year-end bonus: Subject to the provisions of this subclause, employers shall- a) pay their employees in December of each year, a bonus equal to 10 working days' pay. b) where agreements, substantive or otherwise, provide for bonuses in excess of that provided for in paragraph (a), such existing agreements shall prevail. c) an employee shall not be entitled to the bonus amounts referred to in paragraph (a) unless he or she is employed by the employer in December of the year in which the bonus amount is to be paid and he or she has been continuously so employed for at least one full year. d) an employee who is employed by the employer in December of the year in which a bonus amount is to be paid and who has been continuously so employed for at least 3 months, but for less than one full year, shall be entitled to a pro rata bonus payment. e) an employee whose employment is terminated through no fault of his or her own, through retrenchment, retirement, disability or death, shall be entitled to a pro rata bonus payment. f) no bonus payment shall be made to employees whose employment was terminated by reason of misconduct. g) where an employee is absent for more than 10 working days in any one year, the bonus payment to which he or she is entitled shall be reduced by the proportion of total working days lost to total possible working days in a year. Sectoral Determination : Civil Engineering Sector, South Africa 4. Calculation Of Wages 1) The wage of an employee shall be calculated as set out hereunder- a) the hourly wage of an employee shall be the weekly wage divided by the number of ordinary hours of work prescribed for such employee in any week; b) the daily wage of an employee shall be the hourly wage multiplied by - i) nine, in the case of an employee who works a five-day week; ii) seven and half, in the case of any other employee; c) the weekly wage of an employee shall be the hourly wage multiplied by the number of ordinary hours of work prescribed for such employee in any week; d) the monthly wage of an employee shall be four and a third times the weekly wage. Sectoral Determination : Civil Engineering Sector, South Africa 5. Payment Of Remuneration 1) An employee, except as provided for in clause 17(7) shall be paid: - a) weekly, fortnightly or monthly; b) in cash, by cheque or by direct deposit into an account designated by the employee, and in South African currency; c) remuneration in cash or by cheque- i) at the workplace or at a place agreed to by the employee; ii) during the employee's working hours or within 15 minutes of the commencement or conclusion of such hours; d) remuneration not later than seven days after- i) the completion of a period for which the remuneration is payable; ii) the termination of the contract of employment. Sectoral Determination : Civil Engineering Sector, South Africa 6. Information Concerning Remuneration 1) The remuneration shall be in a sealed envelope which shall become the property of the employee, on which must be recorded or which must be accompanied by, a statement showing- a) the employer's name and address; b) the employee's name and occupation; c) the period in respect of which payment is made; d) the employee's rate of remuneration and overtime rate; e) the number of ordinary hours worked by the employee during that period; f) the number of overtime hours worked by the employee during that period; g) the number of hours worked by the employee on a paid public holiday or Sunday; h) the employee's wage; i) details of any other remuneration arising out of the employee's employment; j) details of any deductions made; and k) the actual amount paid to the employee. 2) The particulars set out in subclause (1) may be coded on the envelope and such code shall be fully set out and explained in an accompanying notice or in a notice kept posted in a conspicuous place in the establishment, accessible to all employees affected thereby. 3) Where the remuneration is deposited into the employee's account, the employer shall hand to him or her statement referred to in subclause (1). Sectoral Determination : Civil Engineering Sector, South Africa 7. Deductions And Other Acts Concerning Remuneration 1) An employer shall not levy any fines against an employee, nor shall an employer make any deductions from the employee's remuneration other than the following- a) With the written consent of the employee, a deduction that relates to the conditions of employment entered into between the employer and the employee, and/or subscriptions to a trade union. b) With the written consent of an employee a deduction of any amount which the employer has paid or undertaken to pay to - i) any banking institution, building society, insurance business, registered financial institution, local authority or the State in respect of a payment on a loan granted to such employee to acquire a dwelling; ii) any other organisation or body in respect of the rent of a dwelling or accommodation in a hostel occupied by such employee if such dwelling or hostel is provided through the instrumentality of such organisation or body wholly or partly from funds advanced for that purpose by the State, a building society or a local authority. c) A deduction of any amount which an employer by law or order of any competent court is required or permitted to make. 2) Except where otherwise provided in this determination, whenever an employee is absent from work other than at the instruction of the employer, a deduction proportionate to the period of the employee's absence and calculated on the basis of the wage which such employee was receiving in respect of the ordinary hours of work at the time of such absence. 3) Training fees: No payment shall be made to, or accepted by, an employer either directly or indirectly in respect of the employment or training of an employee, except as provided for by the Skills Development Act. 4) Short time: Whenever the ordinary hours of work prescribed in clause 8 are reduced on account of short-time, excluding short-time owing to inclement weather- a) a deduction not exceeding the amount of the employee's hourly wage in respect of each hour of such reduction provided that - i) such deduction shall not exceed one third of the employee's weekly wage, irrespective of the number of hours by which the ordinary hours of work were reduced; ii) no deduction shall be made in the case of short-time arising from slackness of trade or shortage of raw materials, unless the employer has given the employee notice on the previous working day of the employer's intention to reduce the ordinary hours of work; iii) no deduction shall be made in the case of short-time owing to a breakdown of plant or machinery or a breakdown or threatened breakdown of buildings or structures, in respect of the first two hours not worked, unless the employer has given the employee notice on the previous working day that no work would be available due to such breakdown. b) whenever the ordinary hours of work prescribed in clause 8 are reduced on account of inclement weather the following arrangements will apply- i) where no work has begun at all on site, and if an employee has reported for work, the employee will be paid for 4 hours, provided the employee has at the request of the employer, remained at the workplace during this period; ii) should work be stopped after the first four hours, the employee will be paid for the hours worked iii) should work be stopped during the first four hours, the employee will be paid for four hours only; iv) where the employer has given his employees notice on the previous working day that no work will be available due to inclement weather; then no payment will be made, provided that clause 7(4)(a)(i) is complied with. Sectoral Determination : Civil Engineering Sector, South Africa 8. Ordinary Hours Of Work 1) An employer may not require or permit an employee to work more ordinary hours of work than- a) 45 hours in any week; and b) nine hours in any day if the employee works for five-days or fewer in a week; or c) eight hours in any day if the employee works on more than five days in a week. Sectoral Determination : Civil Engineering Sector, South Africa 9. Overtime 1) An employer may not require or permit an employee a) to work overtime except in accordance with an agreement; b) to work more than - i) 3 hours' overtime a day; or ii) 10 hours' overtime a week. Sectoral Determination : Civil Engineering Sector, South Africa 10. Payment For Overtime 1) An employer shall pay an employee who works overtime at a rate of not less than one and half times the ordinary wage in respect of the overtime referred to in clause 9(1): Provided that any time worked on Sundays and paid public holidays shall be paid in accordance with the provisions of clauses 15 and 16. Sectoral Determination : Civil Engineering Sector, South Africa 11. Meal Intervals 1) An employer shall not require or permit an employee to work for more than five hours continuously without a meal interval of not less than half an hour during which interval such employee shall not be required or permitted to perform any work, and such interval shall not form part of the ordinary hours of work or overtime: Provided that a) periods of work interrupted by intervals of less than half an hour, except when proviso (iv) below applies, shall be deemed to be continuous; b) if such interval is longer than half an hour, any period in excess of one hour shall be deemed to be time worked; c) only one such interval during the ordinary hours of work of an employee on any day shall not form part of the ordinary hours of work; d) when, on any day, by reason of overtime work, an employer is required to give an employee a second meal interval, such interval may, at the request of the employee, be reduced to not less than 15 minutes; e) a driver or an operator of self- propelled or stationary plant who during such interval does not work other than being or remaining in charge of a vehicle or such plant shall be deemed for the purposes of this subclause not to have worked during such interval. Sectoral Determination : Civil Engineering Sector, South Africa 12. Rest Period 1) An employer shall allow an employee- a) a daily rest period of at least 12 consecutive hours between ending and recommencing work; and b) a weekly rest period of at least 36 consecutive hours, which, unless otherwise agreed, must include a Sunday. 2) Clauses 9(1), 11(1) and 16(2) shall not apply to an employee while engaged in emergency work. Sectoral Determination : Civil Engineering Sector, South Africa 13. Compressed Working Week 1) An agreement in writing between an employer and an employee may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 11(1), without receiving overtime pay. 2) An agreement in terms of subclause (1) may not require or permit employee to work- a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Sectoral Determination : Civil Engineering Sector, South Africa 14. Averaging Hours Of Work 1) Despite clauses 8 & 9 the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement. 2) An employer may not require or permit an employee whom is bound by a collective agreement in terms of subclause (1) to work more than- a) an average of 45 ordinary hours of work in a week over the agreed period; b) an average of five hours' overtime in a week over the agreed period. 3) A collective agreement in terms of subclause (1) lapses after 12 months. 4) Subclause (3) only applies to the first two collective agreements concluded in terms of subsection (1). Sectoral Determination : Civil Engineering Sector, South Africa 15. Payment For Work on a Sunday 1) Whenever an employee works on a Sunday, the employer shall either- a) pay the employee- i) if he or she works for a period not exceeding four hours, not less than the daily wage; and ii) if he or she works for a period exceeding four hours, at a rate of not less than double the ordinary wage in respect of the total period worked on such Sunday, or not less than double the daily wage, whichever is the greater; or b) pay the employee at a rate of not less than one and a third times his or her ordinary wage in respect of the total period worked on such Sunday, and grant the employee within seven days of such Sunday one day's leave, which shall not constitute annual leave in terms of clause 17, and pay him or her in respect thereof not less than the daily wage: Provided that where such an employee is required or permitted to work for less than four hours on such Sunday he or she shall be deemed to have worked for four hours. Sectoral Determination : Civil Engineering Sector, South Africa 16. Public Holidays 1) Exclusion: Subclause (4) shall not apply to an employee earning a wage in excess of the remunerations stipulated by the Minister in the determination made in Regulation 1439 published on 13 November 1998 or in any other determination in substitution thereof. 2) An employer may not require an employee to work on a public holiday except in accordance with an agreement. 3) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay- a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day; b) an employee who does work on the public holiday- i) at least double the amount referred to in paragraph (a); or ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day. 4) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to- a) the employee's ordinary daily wage; plus b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method. 5) An employer must pay an employee for a public holiday on the employee's usual payday. 6) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Sectoral Determination : Civil Engineering Sector, South Africa 17. Annual Leave 1) An employer shall grant to an employee in respect of each completed period of 12 months of employment 15 working days leave on full pay of which 10 days shall be taken consecutively, normally during the Civil Engineering Sector shut-down period, and the remaining days shall be granted, subject to subclause (4), at a time agreed to by the employee and his or her employer. 2) An employer shall pay an employee, subject to section 84 of the Basic Conditions of Employment Act, 1997, if he or she has been in employment longer than four months in the aggregate: a) one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid; or, b) one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid. 3) An employer shall grant an employee an additional day of paid leave if a public holiday falls on a day during an employee's annual leave on which the employee would ordinarily have worked. 4) If the leave prescribed in subclauses (1) and (2) has not been granted and taken earlier, it shall, save as provided in subclause (5), be granted and be taken so as to commence within four months after the completion of the 12 months of employment to which it relates or, if the employer and employee have agreed thereto in writing before the expiration of the said period of four months, the employer shall grant such leave to the employee and the employee shall take the leave from a date not later than two months after the expiration of the said period of four months: Provided that the period of leave shall not be concurrent with- a) sick leave granted in terms of clause 18 or with absence from work owing to incapacity in the circumstances set out in clauses 18(9)(a) or 18(9)(b) amounting in the aggregate to not more than 12 days in any one period of 12 months; b) any period during which the employee is under notice of termination of employment in terms of clause 22. 5) At the written request of the employee, an employer may permit the leave to accumulate over a period of not more than 24 months of employment: Provided that- a) the request is made by such employee not later than four months after the expiration of the first period of 12 months of employment to which the leave relates; and b) the date of receipt of the request is endorsed over the employee's signature by the employer, who shall retain the request at least until after the expiration of the period of leave. 6) The leave referred to in subclause (5) shall be granted and be taken at a time to be fixed by the employer, and the provisos to subclause (4) shall apply to such leave. 7) The remuneration in respect of leave granted in terms of this clause shall be paid not later than the last workday before the date of commencement of such leave, and shall be calculated at the employee's rate of remuneration at the time that the leave is granted. 8) Upon termination of employment the employer shall pay the employee the pay in respect of any leave, which has accrued but not granted as at the time of such termination. Such leave payment shall be calculated at the employee's rate of remuneration as at the time of termination. 9) For the purpose of this clause the expression "employment" shall be deemed to include- a) any period in respect of which an employer pays an employee in lieu of notice in terms of clause 22; b) any period during which an employee is absent on sick leave in terms of clause 18, or owing to incapacity in the circumstances set out in clause 18(6)(c); c) any period during which an employee is absent at the instruction of the employer; d) any time during which an employee is required by the employer not to work because of the vagaries of the weather, slackness of trade or a breakdown of machinery or plant. 10) Notwithstanding anything to the contrary contained in this clause, an employer may for the purposes of annual leave, at any time, but not more than once in any period of 12 months, close the establishment, or a portion of the establishment, for 14 consecutive days, plus an additional day for each paid public holiday which falls on a day during such period on which the employee would ordinarily have worked. 11) An employee who as at the date of the closing of an establishment or the portion thereof in which he or she is employed, is not entitled to the full period of annual leave prescribed in terms of subclauses (1) and (2) shall, in respect of any leave due, be paid the leave accrued as at the date of such closure, and for the purposes of annual leave thereafter the employee's employment shall be deemed to commence on the date of such closing of the establishment or portion of the establishment, as the case may be. Sectoral Determination : Civil Engineering Sector, South Africa 18. Sick Leave 1) "sick leave cycle" means the period of 36 consecutive months' employment with the same employer immediately following - a) an employee's commencement of employment; or b) the completion of that employee's prior sick leave cycle. 2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 3) Despite subclause (2), during the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. 4) During an employee's first sick leave cycle, an employer may reduce the employee's entitlement to sick leave in terms of subclause (2) by the number of days sick leave taken in terms of subclause (3). 5) Subject to subclause (7), an employer must pay an employee for a day's sick leave- a) the wage the employee would ordinarily have received for work on that day; and b) on the employee's usual payday. 6) An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this clause if- a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and b) the employee's entitlement to pay- i) for any day's sick leave is at least 75 percent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and ii) for sick leave over the sick leave cycle is at least equivalent to the employee's entitlement in terms of subclause (2). c) in the first 36 months of employment, an employee is absent owing to incapacity for a period in excess of the sick leave accrued in terms of subclause (2), the employer shall not, at that stage, be required to effect any payment in respect of the excess sick leave taken. d) However, if the employer has not previously done so, he or she shall at the end of the first cycle of 36 months of employment pay the employee an amount equal to not less than the difference between the sick leave payment made earlier and the employee's wage for the full period of incapacity, up to a maximum of 36 work-days. Such compensation shall be affected at the rate of the employee's wage as at the commencement of the incapacity: e) Provided further that where the contract of employment terminates before the end of the said first cycle the employee shall be entitled to claim payment from the employer of an amount equal to the difference between the sick leave pay already received and the wage for the full period of incapacity, but not exceeding payment at a rate of more than one work-day's wage for each completed of 26 days worked, and for the purposes of this proviso the expression "wage" shall mean the wage the employee was receiving as at the commencement of incapacity; f) where an employer is by any law required to pay fees for hospital or medical treatment in respect of an employee, and pays such fees, the amount so paid may be set off against the payment due in respect of absence owing to incapacity in terms of this clause; g) no unused sick leave may be accrued from one cycle to another. 7) An employer may, as a condition precedent to the payment of any amount claimed in terms of this clause by an employee in respect of any absence from work- a) for more than three consecutive work-days; or b) on the work-day immediately preceding or the work-day immediately succeeding a Sunday or a paid holiday, require the employee to produce a certificate signed by a registered medical practitioner stating the nature and duration of the employee's incapacity: Provided that, when an employee has, during any period of up to eight weeks, received payment in terms of this clause on two or more occasions without producing such a certificate, the employer may, during the period of eight weeks immediately succeeding the last such occasion, require the production of such certificate in respect of any absence. Furthermore, an employer may require an employee to obtain a certificate issued by a medical practitioner nominated by the employer but at the employer's expense in order to satisfy the requirements of this clause. 8) For the purposes of this clause the expression- a) "employment" shall be deemed to include any period during which an employee is absent- i) on leave in terms of clause 17 or on the instructions or at the request of his employer or on sick leave in terms of subclause (2) amounting in the aggregate in any period of 12 months to not more than 10 weeks; and ii) due to the employee not being required to work because of the vagaries of the weather, slackness of trade or a breakdown of machinery or plant; b) "incapacity" means inability to work owing to any sickness or injury other than sickness or injury caused by an employee's own misconduct: Provided that any such inability to work, caused by an accident or a scheduled disease for which compensation is payable under the Compensation for Occupational Injuries and Diseases Act, 1993, shall only be regarded as incapacity during any period in respect of which no disablement payment is payable in terms of that Act. 9) Clause 18, save for this subclause, shall not apply- a) to an employee at whose written request the employer makes contributions, at least equal to those made by the employee, to any fund or organisation nominated by the employee, which fund or organisation guarantees to the employee in the event of incapacity in the circumstances set out in this clause, the payment to him or her of not less than in the aggregate the equivalent of the employee's wage for 36 workdays in each cycle of 36 months of employment, except that during the first 36 months of the payment of contributions by the employee, the guaranteed rate may be reduced by not less than the rate of accrual set out in the first proviso to subclause (2); b) in respect of any period of incapacity of an employee for which the employer is required by any other law to pay to the employee not less than his or her full wages. Sectoral Determination : Civil Engineering Sector, South Africa 19. Maternity Leave 1) An employee is entitled to at least four consecutive months' maternity leave. 2) An employee may commence maternity leave- a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child. 3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. 5) 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- a) commence maternity leave, and b) return to work after maternity leave. 6) Notification in terms of subclause (5) must be given- a) at least four weeks before the employee intends to commence maternity leave; b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) Protection of employees before and after birth of a child- a) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child. b) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if it is practicable for the employer to do so. Sectoral Determination : Civil Engineering Sector, South Africa 20. Family Responsibility Leave 1) This clause applies to an employee- a) who has been in employment with an employer for longer than four months; and b) who works for at least four days a week for that employer. 2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three day's paid leave, which the employee is entitled to take- a) when the employee's child is born; b) when the employee's child is sick; or c) in the event of the death of- i) the employee's spouse or life partner; or ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 3) Subject to subclause (5), an employer must pay an employee for a day's family responsibility leave- a) the wage the employee would ordinarily have received for work on that day; and b) on the employee's usual payday. 4) An employee may take family responsibility leave in respect of the whole or part of a day. 5) Before paying an employee for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in subclause (2) for which the leave was required. 6) An employee's unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues. Sectoral Determination : Civil Engineering Sector, South Africa 21. Piece Work 1) An employer may, after giving at least one week's notice to an employee, introduce a piece-work system and, save as provided in clause 7, such employer shall pay such employee at the rate applicable under such system: Provided that, irrespective of the quantity of work done, the employer shall pay such employee not less than, in respect of each week in which such piece-work is performed, the amount which the employer would have been required to pay such employee for that week had the employee been remunerated on the basis of time worked. 2) An employer shall keep a schedule of the rates referred to in subclause (1) in a conspicuous place in the establishment. 3) An employer who intends to cancel or amend the piece-work system in operation, or the rates applicable there under, shall give the employee employed on such system not less than one week's notice of such intention: Provided that an employer and the employee may agree on a longer period of notice, in which case the employer shall give notice for a period not shorter than that agreed upon. Sectoral Determination : Civil Engineering Sector, South Africa 22. Prohibition Of Employment 1) An employer shall not- a) employ any person under the age of 15 years; or b) a child who is under the minimum school leaving age in terms of any law, if he or she is 15 years or older; 2) An employer shall not employ a child in employment- a) that is inappropriate for a person of that age; b) that places at risk the child's well-being, education, physical or mental health or spiritual, moral or social development. 3) All forced labour is prohibited. Sectoral Determination : Civil Engineering Sector, South Africa 23. Termination Of Contract Of Employment 1) An employer or an employee, who wishes to terminate the contract of employment, shall give notice of termination of not less than a) one week, if the employee has been employed for four weeks or less; b) two weeks, if the employee has been employed for more than four weeks but not more than one year; c) four weeks, if the employee has been employed for one year or more. 2) An employer may terminate the contract without notice by, subject to subclauses (3) and (4), paying the employee, in lieu of such notice not less than-the remuneration the employee would have received, calculated in accordance with clause 4, if the employee had worked during the notice period. 3) The provision in subclause (2) for notice pay shall not affect the operation of any forfeitures or penalties that by law may be applicable in respect of an employee who deserts. 4) Where the wage of an employee at the date of termination has been reduced by deductions in respect of short-time, the employer is obliged to pay the employee in lieu of notice at a rate as if no deduction has been made in respect of short-time. 5) The notice prescribed in subclause (1) may be given on any work-day: Provided that the period of notice shall not run concurrently with nor shall notice be given during an employee's absence- a) on leave in terms of clause 17; b) on sick leave in terms of clause 18; c) owing to incapacity in terms of circumstances set out in clause 18(8Xb) amounting in the aggregate to not more than 10 weeks in any period of 12 months. Sectoral Determination : Civil Engineering Sector, South Africa 24. Severance Pay 1) For the purpose of this clause, `operational requirements' means requirements based on the economic, technological, structural or similar needs of any employer. 2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with clause 4. 3) An employee who unreasonably refuses to accept the employer's offer of alternate employment with that employer or any other employer, is not entitled to severance pay in terms of subclause (2). 4) The payment of severance pay in compliance with this clause does not affect an employee's right to any other amount payable according to law. 5) If there is a dispute only about entitlement to severance pay in terms of this clause, the employee may refer the dispute in writing to the CCMA. Sectoral Determination : Civil Engineering Sector, South Africa 25. Certificate Of Service 1) On termination of employment an employee is entitled to ,a certificate of service substantially in the form of annexure "A" stating- a) the employee's full name; b) the name and address of the employer; c) a description of any council or sectoral employment standard by which the employer's business is covered; d) the date of commencement and date of termination of employment; e) the title of the job or a brief description of the work for which the employee was employed at date of termination; f) the remuneration at date of termination; and g) if the employee so requests, the reason for termination of employment. Sectoral Determination : Civil Engineering Sector, South Africa 26. Protective Clothing 1) An employer shall supply and maintain in serviceable condition, free of charge, any protective clothing that the employer requires the employee to wear, or that by any law the employer is compelled to provide to the employee, and any such protective clothing shall remain the property of the employer. Sectoral Determination : Civil Engineering Sector, South Africa 27. Attendance Register 1) Exclusion: This clause shall not apply to a driver of a motor vehicle or an employee accompanying such a driver or to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1439 published on 13 November 1998 or in any other determination in substitution thereof. 2) An employer shall provide in his or her establishment an attendance register substantially in the form of annexure "B" in which he or she shall record in ink or indelible pencil the name and class of each of his or her employees, and if such employee is unable to write his or her employer shall on his or her behalf for each day worked and for that day make the necessary entries in respect of items (i) to (iv) inclusive of subclause (4)(a), and sign such entries in the presence of a person nominated by the employee. 3) Unless prevented from doing so by unavoidable circumstances, an employee shall in respect of each day worked by him or her and on that day- a) record in ink or indelible pencil in the attendance register referred to in subclause (2); - i) the day of the week; ii) the time he or she commenced work; iii) the of commencement and termination of all meal or other intervals which are not reckonable as ordinary hours of work; iv) the time of finishing work that day; v) the time of commencement and termination of overtime worked for the day; vi) the total number of hours worked for the day; and vii) his or her signature. b) in an establishment where a semi-automatic time recorder is provided, make an entry by means of such recorder on a card supplied in terms of subclause (3) to show the following: - i) the time he or she commenced work; ii) the time of commencement and termination of all meal or other intervals which are not reckonable as ordinary hours of work; and iii) the time of finishing work for the day. 4) An employer shall retain the attendance register referred to in subclause (2), as the case may be, for a period of not less than three years after the date of the last entry therein or thereon. Sectoral Determination : Civil Engineering Sector, South Africa 28. Written Particulars Of Employment 1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing- a) the full name and address of the employer; b) the name and occupation of the employee, or a brief description of the work for which the employee is employed; c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this; d) the date of employment; e) the employee's ordinary hours of work and days of work; f) the employee's wage or the rate and method of calculating wages; g) the rate of pay for overtime work; h) any other cash payments that the employee is entitled to and the value of the payment in kind; i) any payment in kind that the employee is entitled to and the value of the payment in kind; j) how frequently remuneration will be paid; k) any deductions to be made from the employee's remuneration; l) the leave to which the employee is entitled; m) the period of notice required to terminate employment, or if employment is for a specific period, the date when employment is terminated; n) a description of any council or sectoral determination which covers the employer's business; o) any period of employment with a previous employer that covers towards the employee's period of employment; p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained. 2) When any matter listed in subclause (1) changes- a) the written particulars must be revised to reflect the change; and b) the employee must be supplied with a copy of the document reflecting the change. 3) If an employee is not able to understand the written particulars, employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 4) The employer must keep written particulars in terms of this clause for a period of 12 months after termination of employment. Sectoral Determination : Civil Engineering Sector, South Africa 29. Retirement Benefit Fund 1) All the employers who do not have a retirement benefit fluid in favour of their employees in place, shall by 1 March 2001, either join the Construction Industry Retirement Benefit Fund, or, whether independently or with other employers, do whatever may be necessary to have a retirement benefit fund registered in terms of the Pension Funds Act, 1956, in favour of their employees and shall confer the benefits of membership of such fund on their permanent employees. 2) The rules of the retirement benefit fund referred to above shall require that employers and employees contribute equally in respect of each employee's membership of the retirement benefit fluid. 3) The rules of the retirement benefit fund shall provide for a risk benefit fund, which shall provide for death, disability and funeral benefits. Sectoral Determination : Civil Engineering Sector, South Africa 30. Keeping Of Sectoral Determination 1) Every employer on whom this sectoral determination is binding must- a) keep a copy of the sectoral determination available in the workplace at all times; b) make the copy available for inspection by an employee; and c) give a copy of the sectoral determination- i) to an employee who has paid the prescribed fee; and ii) free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum. (All the provisions of Wage Determination 480: Civil Engineering, South Africa published under the Government Notice no. 366 on the 13 March 1998 and Sectoral Determination no. 2: Civil Engineering Sector, South Africa published under the Government Notice no. 1355 on the 12 November 1999 will be superseceded by this determination with effect from the date of implementation.) Notice No. R.196 Sectoral Determination 3: Private Security Sector, South Africa I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of section 51(1) of the Basic Conditions of Employment Act, No 75 of 1997 make a Sectoral Determination establishing conditions of employment for employees in the Private Security Sector, South Africa, which appears in the schedule hereto and fix the second Monday after the date of publication of this notice as the date from which the provisions of the said Sectoral Determination shall be binding. M. M. S. MDLADLANA, MP Minister of Labour Sectoral Determination 3: Private Security Sector, South Africa 1. Area and scope of application 1) This determination shall apply in the Republic of South Africa to every employer in the Private Security Sector as defined in subclause (2), and to all employees in that sector, except those employers and employees referred to in subclause (3). 2) "Private Security Sector" means the sector in which employers and employees are associated for the purpose of guarding or protecting fixed property, premises, goods, persons or employees, including monitoring and responding to alarms at premises which are guarded by persons or by electronic means. 3) The provisions of this determination shall not apply- a) to a manager as defined in clause 2(28); or b) to any employer or employee who is subject to an agreement of a bargaining council in terms of the Labour Relations Act, 1995. 4) For the purposes of determining the wage rate applicable to an employee, the area where the employee performs the employee's duties shall be the area contemplated in subclause (1) irrespective of whether or not the employer has an establishment in that area or not. 5) Subject to the provisions of the National Keypoint Act, 1980, this determination shall also apply to employers and employees who provide security services at National Key Points. Sectoral Determination 3: Private Security Sector, South Africa 2. Definitions For the purposes of this determination, unless the context otherwise indicates, any expression used therein which is defined in the Basic Conditions of Employment Act, No 75 of 1997, has the same meaning as in that Act and an employee shall be deemed to be in that class in which the employee is wholly or mainly engaged. 1) "area" includes any number of areas, whether contiguous or not; 2) "artisan" means an employee who has completed or is deemed to have completed a contract of apprenticeship in a trade designated or deemed to have been designated in terms of the Manpower Training Act, 1981, or who holds a certificate issued or deemed to have been issued to the employee by the Registrar of Manpower Training and conferring artisan status on the employee in terms of that Act, and any other employee engaged in work normally performed by an artisan except where specifically otherwise provided in this determination; 3) "basic condition of employment" means a provision of the Basic Conditions of Employment Act, 1997; 4) "cargo security officer" means an employee who guards cargo on a ship; 5) "casual employee" means an employee without a fixed contract of employment who works not more than 24 hours in any week; 6) "category A" in relation to a security officer, means an employee whose ordinary hours of work, subject to subclause (7)(b) do not exceed 48 in a week; 7) "category B" in relation to a security officer, means an employee whose ordinary hours of work, subject to subclause (7)(a) and (b), do not exceed 55 in a week; a) With effect from one year after the implementation of this Determination the second transitional phase of schedule three of' the Basic Conditions of Employment Act, Act No. 75 of 1997 as amended, comes into effect, from which time the maximum permissible weekly hours of work for a Category B security officer will be reduced to 50; b) With effect from two years after the implementation of this Determination the third transitional phase of schedule three of the Basic Conditions of Employment Act, Act No. 75 of 1997 as amended, comes into effect, from which time the maximum permissible weekly hours of work for any security officer will be reduced to 45 and the terms "Category A" and "Category B" will be discontinued; 8) "child" means a person who is under 16 years of age; 9) "clerical assistant" means an employee who is engaged in any one or more of the following duties: a) Adding or subtracting, including making use of a machine; b) checking attendance registers or entering particulars in connection with employees who are absent or present or the time spent by employees on different tasks at establishments or places of employment; c) filing documents according to written instructions or a list, in any order; d) interpreting or translating languages; e) issuing passes or preparing certificates of service; f) issuing time cards; g) preparing wage or time cards; h) recording particulars of annual or sick leave; i) recording particulars in registers otherwise than by means of a typewriter or computer; j) recording the engagement, dismissal or resignation of employees, including any necessary entries in an employee's file or documents; k) transferring names and addresses from compiled documents to envelopes, labels or circulars otherwise than by means of a typewriter or computer; 10) "clerk" means an employee who is engaged in writing, typing or filing or in any other form of clerical work and includes a cashier, storeman, a telephone switch-board operator, and who may make up money into specified amounts and place such money in envelopes or other containers, but does not include any other class of employee elsewhere defined in this clause, notwithstanding the fact that clerical work may form part of such employee's work; 11) "controller (stock)" means an employee who controls or checks the issuing or receiving of uniforms, overalls, protective clothing, batons, handcuffs, flashlights, firearms, ammunition or other equipment and who may keep the necessary records; 12) "control centre operator" and "communication centre operator" means a security officer who is utilised in an administrative capacity in a control centre or communication centre and who may be called upon to perform any or all of the duties of a clerk; 13) "day" means a period of 24 consecutive hours reckoned from the time such employee commences work and daily has a corresponding meaning. 14) "driver" means an employee, other than a security officer, grade A, B or C, who drives a motor vehicle, and for the purposes of this definition the expression "drives a motor vehicle" includes all periods during which an employee drives, all time spent on work connected with the vehicle or the load, and all periods during which the employee is obliged to remain at the post in readiness to drive; 15) "emergency work" means work that is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work; 16) "employee" means any person who works for another person or who in any manner assists in carrying on or conducting the business of an employer; and who receives, or is entitled to receive, any remuneration; and "employed" and "employment" have a corresponding meaning, and which also includes- a) the utilization of any person on contract performing the duties of a security officer, as defined in subclauses 2(41) to 2(46), and b) in-house security officers, performing the duties as defined in subclauses 2(41) to 2(46), who do not fall under the jurisdiction of any other wage determination, sectoral determination or bargaining council agreement; 17) "establishment" means the premises from which an employer conducts business; 18) "experience" means, in relation to- a) a clerk, the total period or periods of employment which an employee has had as a clerk in any trade or industry or in the service of a local authority or the State; b) a clerical assistant, the total period or periods of employment which an employee has had as a clerical assistant in any trade or industry or in the service of a local authority or the State; 19) "general worker" means an employee who is engaged in any one or more of the following duties: a) affixing postage stamps to letters, parcels or other articles; b) affixing rubber stamps or serial numbers where discretion is not required; c) assisting an artisan by holding articles or tools or working with the artisan without making independent use of any tools; d) assisting on vehicles, otherwise than driving, guarding or repairing such vehicles, carrying, lifting, storing, moving, loading, unloading, opening or closing goods or parcels; e) cleaning or washing premises, doors, windows, equipment, tools, plant, machinery, furniture, vehicles, containers or other articles, and includes the polishing of floors, furniture or vehicles or the brushing of mats or the cleaning of mats by means of a machine; f) cooking rations or making tea or similar beverages for employees, including serving them, or making tea or other refreshments for the employer or the employer's guests, including the serving thereof; g) delivering or conveying messages, letters, goods or parcels on foot, or by any means excluding motor vehicles; h) feeding or tending animals; i) filling fuel tanks or filling or draining oil sumps; j) gardening; k) oiling or greasing vehicles, plant or machinery; l) opening or closing doors or windows; m) pushing or pulling vehicles otherwise than by means of mechanical equipment; n) removing refuse or ashes; o) removing, replacing, changing wheels, tyres or tubes, or repairing or pumping tyres or tubes; p) removing, topping up or replacing batteries; q) replacing towels, soap or toilet paper; r) stamping or stenciling containers or parcels where discretion is not required; s) washing or ironing overalls, uniforms or protective clothing; t) whitewashing, cleaning or disinfecting kennels, stables, outbuildings or toilets; 20) "goods" means any movable property, but not limited to, money and other valuables belonging to or in the custody of the employer, that has to be guarded, protected or transported under guard; 21) "gross vehicle mass", in relation to a motor vehicle, means the maximum mass of such vehicle and its load as specified by the manufacturer or, in the absence of such specification, as determined by the registering authority; 22) "handyman" means an employee, other than an apprentice or a trainee, who is engaged in making minor repairs or adjustments to machinery or equipment, and who may also effect minor repairs or renovations to buildings, but who does not do any work normally performed by an artisan; 23) "heavy motor vehicle" means a motor vehicle the gross vehicle mass of which exceeds 9 000 kg; 24) "hourly wage" means an employee's hourly wage in respect of ordinary hours worked, as set out in clause 3(1)(b), and in the case of a ship security officer and a cargo security officer it means the wage referred to in clause 3(1)(d); 25) "law" includes the common law; 26) "light motor vehicle" means a motor vehicle the gross vehicle mass of which does not exceed 3 500 kg; 27) "local authority" means any borough council, city council, municipal council, village management board, divisional council or any similar institution or body contemplated in section 84(1)(f) of the Provincial Government Act, 1961, or in any other parliamentary legislation; 28) "manager" means an employee who is charged by an employer with the overall supervision over, responsibility for and direction of the activities of an establishment or part of an establishment and the employees engaged therein, but does not include any employee in the same establishment who relieves or acts for a manager during the manager's absence; 29) "medical practitioner" means a person entitled to practice as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No 50 of 1974); 30) "midwife" means a person registered or enrolled to practice as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978); 31) "medium motor vehicle" means a motor vehicle the gross vehicle mass of which exceeds 3 500 kg but not 9 000 kg; 32) "motor vehicle" means a self-propelled vehicle used for the transportation of goods, persons or dogs, and includes a motor cycle and a motorised three-wheeler; 33) "night work" means work which is performed between the hours of 18:00 on one day and 06:00 the next day; 34) "ordinary hours of work" means the hours of work prescribed in clause 5(1), but if by agreement between an employer and employee the latter works a lesser number of ordinary hours, it means such shorter hours; 35) "ordinary wage" means the employees ordinary remuneration excluding any premium for work on a Sunday or public holiday; 36) "overtime" means that portion of any period worked by an employee in any week or on any day which is longer than the maximum permissible weekly or daily ordinary hours of work, as the case may be; 37) "premises" means any land and any building or structure above or below the surface of any land and includes any vehicle, aircraft or vessel; 38) "public holiday" means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994); 39) "qualified", in relation to an employee referred to in subclauses (9) and (10), means that the experience of an employee in the employee's class entitles the employee to the highest wage rate prescribed for that class of employee, and conversely, "unqualified" means that experience in the employee's class does not entitle the employee to such highest wage rate; 40) "remuneration" means any payment in money or kind, or both in money and kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning; 41) "security officer" means a security officer, grade A, B, C, D or E; 42) "security officer, grade A" means an employee who performs any one or more of the following duties: a) Advising or reporting on any matter affecting guarding or protection services; b) assisting in the screening of candidates for employment; c) assuming responsibility for staff training; d) drawing money or cheques or taking possession of negotiable documents; e) drawing money at banks or similar institutions; f) guarding or protecting goods; g) supervising subordinate staff; and h) who may drive a motor vehicle in the performance of any or all of the employee's duties; 43) "security officer, grade B" means an employee who performs any one or more of the following duties, namely, supervising, controlling, instructing or training security officers, grades C, D or E or general workers and reporting thereon to an employer or any other specified person, and who may- a) drive a motor vehicle in the performance of any or all of the employee's duties; b) be called upon to perform any or all of the duties of a security officer, grade C; 44) "security officer, grade C" means an employee who performs any one or more of the following duties: a) supervising or controlling security officers, grades D or E; b) driving a motor vehicle in the course of supervising or controlling security officers grade D or E; c) driving a motor vehicle for the purpose of transporting security officers; and d) who may be called upon to perform any or all of the duties of a security officer, grade D; 45) "security officer, grade D" means an employee who performs any one or more of the following duties: a) controlling or reporting on the movement of persons or vehicles through checkpoints or gates; b) searching persons and, if necessary, restraining them; c) supervising or controlling security officers, grade E; d) searching goods or vehicles; and e) who may be required to perform any or all of the duties of a security officer, grade E; 46) "security officer, grade E" means an employee, other than a security officer, grade D, who performs any one or more of the following duties: a) Guarding, protecting or patrolling premises or goods; b) handling or controlling dogs in the performance of any or all of the duties referred to in (a); 47) "spare and reliever" means an employee who reports for duty at a specified place and time, and who must remain at the specified place for the duration of that shift, or who is required to replace any other employee who may be on scheduled time-off, annual leave or absent from duty, or who is required to perform duties at any place designated by the employer; 48) "ship security officer" means an employee who guards the entrance to or exit from a ship; 49) "short time" means a temporary reduction in the number of ordinary hours of work owing to a slackness of business in the trade, a breakdown of plant, machinery or equipment, or a breakdown or threatened breakdown of buildings; 50) "storeperson" means an employee, other than a controller (stock), who is in charge of incoming stock and who is responsible for receiving, storing, packing or unpacking stock in or for issuing stock from a store, warehouse or open stockyard; 51) "Sunday work" means any work performed where the relevant shift commences on a Sunday and where the major portion of that shift is performed on that Sunday; 52) "wage" means that amount of money payable to an employee in terms of clause 3(1) in respect of ordinary hours of work; 53) "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls. Sectoral Determination 3: Private Security Sector, South Africa 3. Remuneration 1) Minimum wages: a) The minimum wages which an employer shall pay employees shall be as specified in subclauses (1)(b), (1)(c) and (1)(d). b) An employer shall pay to each member of the undermentioned classes of employees, other than casual employees, cargo security officers or ship security officers, the minimum wages specified hereunder: HOURLY WAGE RATES AREA 1 AREA 2 AREA 3 AREA 4 AREA 5 In the Magisterial Districts of Brakpan, Camperdown, Chatsworth, Durban, Germiston, Alberton, Bellville, Benoni, Boksburg, Goodwood, Inanda, Johannesburg, Kempton Park, Krugersdorp, Kuils River, Oberholzer, Mitchell's Plain, Nigel, Paarl, Port Elizabeth, Pinetown, Pretoria, Randburg, Randfontein, Roodepoort, Sasolburg, Simon's Town, Springs, The Cape, Uitenhage, Vanderbijlpark, Vereeniging, Westonaria, Wonderboom and Wynberg. In the Magisterial Districts of Bloemfontein, East London, Kimberley, Klerksdorp, Pietermaritzburg, Somerset West, Stellenbosch, and Strand. In the Magisterial Districts of Odendaalsrus, Potchefstroom, Virginia, Welkom and Witbank. In the Magisterial Districts of Bethlehem, George, Henneman. Highveld Ridge, King William's Town, Klip River, Knysna, Lower Tugela, Lower Umfolozi, Middelburg (Mpumalanga), Mossel Bay, Nelspruit, Newcastle' Oudtshoorn, Pietersburg, Port Shepstone, Potgietersrus, Rustenburg, Queenstown and Umzinto. All other areas Maximum permissible working Hours per week for each respective category of employee, subject to clause 5(2), with regard to averaging of working hours. Artisan 10,63 9,71 9,32 8,18 7,37 45 Clerical Assistant - During the First year of experience 5,29 4,88 4,41 4,14 3,73 45 During the second year of experience 5,52 5,05 4,58 4,28 3,86 Thereafter 5,72 5,29 4,82 4,45 4,01 Clerk - During the First year of experience 5,79 5,34 4,90 4,50 4,05 45 During the second year of experience 6,63 6,34 5,65 5,15 4,64 During the third year of experience 7,48 6,87 6,46 5,78 5,21 Thereafter 8,36 7,65 7,20 6,41 5,77 Control or Communication Centre Operator As for relevant Security Officer grading As for relevant Security Officer grading As for relevant Security Officer grading As for relevant Security Officer grading As for relevant Security Officer grading As for Security Officers Controller As for Clerical Assistant As for Clerical Assistant As for Clerical Assistant As for Clerical Assistant As for Clerical Assistant As for Clerical Assistant Driver of a - Light motor vehicle 5,58 5,19 4,71 4,34 3,91 45 Medium motor vehicle 6,59 6,08 5,62 5,11 4,60 Heavy motor vehicle 7,20 6,66 6,20 5,55 5,00 General Worker - During the first six months service with the same employer 4,34 4,00 3,60 3,40 3,06 45 Thereafter 4,74 4,38 3,95 3,73 3,36 Handyman 6,17 5,74 5,28 4,81 4,33 45 Security Officer - Grade A 10,52 9,61 8,73 8,09 7,29 Hours of work as per clause 5 of this determination Grade B 8,60 7,83 7,05 6,53 5,88 Grade C 6,31 5,83 5,26 4,90 4,41 Grade D 5,59 5,11 4,65 4,33 3,90 Grade E 5,22 4,80 4,33 4,07 3,67 (Hourly wage scales for category A and category B security officers are identical) Employees not elsewhere specified- 5,37 4,95 4,47 4,22 3,80 45 Refer also to subclauses (5), (6), (7) and (8) c) Casual employees: An employer shall pay a casual employee in respect of each hour or part of an hour (excluding overtime) worked by the employee on any day other than a paid holiday or a Sunday not less than the hourly wage prescribed in subclause (1)(b) for an ordinary employee who in the same area performs the same class of work as the casual employee is required to do, plus 15 percent, or not less than the hourly wage or hourly equivalent of the wage actually being paid to the ordinary employee, whichever is the greater amount: Provided that- i) for the purposes of this paragraph the expression "the ordinary employee" means the employee who performs the particular class of work in the employer's full-time employ and who is being paid the lowest wage for that class of work; ii) where the employer requires the casual employee- aa) to perform the work of a class of employee for whom wages on a rising scale are prescribed, the expression "hourly wage" shall mean the hourly wage prescribed for a qualified employee of that class; ab) to work for a period of less than four hours on any day, the employee shall be deemed to have worked four hours and remunerated accordingly. d) Ship security officers and cargo security officers: A ship security officer and a cargo security officer shall be paid at least R4,33 for each hour or part of an hour of employment. 2) Basis of contract: For the purposes of this clause, the contract of employment of an employee, other than a casual employee, a ship security officer or a cargo security officer, shall be on a weekly basis. 3) Differential wage: An employer who requires or permits a member of one class of employee to perform for longer than one hour on any day, either in addition to the employee's own work or in substitution therefore, work of another class for which- a) a wage higher than that of the employee's own class is prescribed in subclause (1), shall pay to such employee in respect of that day not less than the daily wage calculated at the higher rate; or b) a rising scale of wages terminating in a wage higher than that of the employee's own class as prescribed in subclause (1), shall pay to such employee in respect of that day not less than the daily wage calculated on the notch in the rising scale immediately above the wage which the employee was receiving for the employee's ordinary work: provided that- i) this subclause shall not apply where the difference between the classes in terms of subclause (1) is based on experience; ii) unless expressly otherwise provided in a written contract between the employer and employee, nothing in this determination shall be so construed as to preclude an employer from requiring an employee to perform work of another class for which class the same or a lower wage is prescribed. 4) Calculation of wages: The wage, overtime and Sunday time of an employee, other than a casual employee, a ship security officer or a cargo security officer, shall be calculated on an hourly basis and an employee shall be paid accordingly. 5) Bicycle allowance: An employer who requires an employee to use an employee's own bicycle in the performance of an employee's duties shall pay the employee, in addition to any other remuneration payable to the employee- a) in the case of a casual employee, a ship security officer and a cargo security officer, an allowance of not less than R1,00 per day; b) in the case of any other employee, an allowance of not less than R5,00 per week or, if the employee is required or permitted to use an employee's own bicycle on occasion only, an allowance of not less than R1,00 for each day on which an employee so uses the bicycle. 6) Night shift allowance: If the major portion of the shift ordinarily falls between the hours of 18:00 on one day and 06:00 the next day that employee will be entitled to and shall receive an allowance of R 1,35 per such night shift worked. 7) Firearm allowance: An employer shall pay an employee who is required to carry a firearm in the performance of an employee's duties at a rate of not less than that specified for a grade D security officer or at the rate which an employee normally receives, whichever is the higher. 8) Dog allowance: For every day or part of a day on which an employer requires or permits a security officer Grade C, D or E to use or be in charge of a dog in the performance of an employee's duties, an employer shall pay the employee an allowance of not less than R1,00 for such day. Sectoral Determination 3: Private Security Sector, South Africa 4. Payment of Remuneration 1) For employees, other than casual employees, ship security officers and cargo security officers, an employer must pay to an employee any remuneration,- a) in South African currency; b) daily, weekly, fortnightly or monthly; and c) in cash, by cheque or by direct deposit in an account designated by the employee. 2) Any remuneration paid by cheque or by cash must be given to each employee- a) during the ordinary hours of work, or b) within 15 minutes thereafter on the usual pay-day of the establishment for such employee, or c) at such time as may have been agreed upon between such employee and the employer, which time shall fall during the ordinary hours of work of the establishment, but not later than 48 hours after the usual pay-day, or d) within 7 days of termination of employment. 3) Such amount shall be contained in a sealed envelope. 4) An employer must give an employee a payslip on which the following information is included in writing on each day the employee is paid a) the employer's name and address; b) the employee's name or number on the payroll, the employee's job category and grade; c) the period for which payment is made; d) the amount and purpose of any deductions made from the remuneration; e) the nett amount paid to the employee; f) the employee's hourly rate of pay and overtime rate; g) the number of ordinary hours worked by the employee; h) the number of overtime hours worked by the employee; i) the number of hours worked by the employee on a Sunday during that period; j) the number of hours worked by an employee on a public holiday during that period; and k) the details of any other remuneration arising out of the employee's employment contract or in terms of an agreement to average working time in terms of the BCEA No 75 of 1997; 5) The written information required in terms of clause 4(4) must be given to each employee at the workplace or at a place agreed to by the employee and such payslip on which these particulars are recorded or such statement shall become the property of the employee: Provided that- a) the particulars prescribed above may be recorded on a payslip or in such statement in code which shall be fully set out and explained in an accompanying notice or in a notice kept posted in some conspicuous place in the establishment, accessible to all employees affected thereby; b) the amount due to the employee may be paid into the employee's nominated building society or bank account, by manual or electronic funds transfer, by the employer, who shall, however, hand to the employee the aforementioned statement. 6) Casual employees, ship security officers and cargo security officers: An employer shall pay a casual employee, a ship security officer or a cargo security officer the remuneration due to the employee in cash on completion of each day's work: Provided that the employer may, at the request of such employee, pay the employee the remuneration at the end of that week or month, by mutual agreement. 7) Premiums: Subject to any other law, no payment by or on behalf of an employee shall be accepted by an employer, either directly or indirectly, in respect of the employment or training of that employee and no employer shall require an employee to- a) repay any portion of the remuneration which was due to that employee; or b) acknowledge receipt of an amount greater than the remuneration actually paid to the employee. 8) Purchase of goods: An employer shall not require an employee to purchase any goods from the employer or from any shop, place or person nominated by the employer. 9) Accommodation, meals and rations and payment in natura: An employer shall not as a condition of employment require an employee to accept accommodation, meals or rations from the employer or from any person or at any place nominated by the employer. An employer shall not as a condition of employment require an employee to receive any in natura form of payment in lieu of wages or a part thereof. 10) If an employee works as a "spare/reliever", the employee will be employed on a full time basis, at the rate for the relevant category of employment, and the employer must pay the employee the amount that the employee would ordinarily have earned even if that employee had not been placed at a post. 11) Deductions: An employer shall not levy any fines against an employee nor make any deductions from the employee's remuneration other than the following- a) subject to clause 4(11)(c), by agreement with the employee in writing in respect of a debt specified in the agreement, or b) a deduction of any amount which an employer by law or order of any competent court is required or permitted to make; c) to reimburse the employer for loss or damage only if- i) the loss or damage occurred in the course of employment and was due to the fault of the employee, ii) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deduction should not be made, iii) the total amount of the debt does not exceed the actual amount of the loss or damage, and iv) the total monthly deductions from the employee's remuneration in terms of this subclause do not exceed one quarter of the employee's monthly remuneration in money. d) With the written consent of the employee, a deduction for any medical, insurance, savings, provident or pension fund, or in respect of subscriptions to a trade union. e) Whenever the ordinary hours of work are reduced because of short time, a deduction not exceeding the amount of the employee's (other than a casual employee, a ship security officer or a cargo security officer's) hourly wage in respect of each hour of such reduction: Provided that- i) such deduction shall not exceed one third of the employee's wage irrespective of the number of hours by which the ordinary hours of work are thus reduced; ii) no deduction shall be made in the case of short time arising from slackness of business, unless the employer has given an employee notice on the previous working day of the employer's intention to reduce the ordinary hours of work; iii) no deduction shall be made in the case of short time owing to a breakdown of plant or machinery or a breakdown or threatened breakdown of buildings, in respect of the first hour not worked, unless the employer has given an employee notice on the previous day that no work will be available. f) With the written consent of an employee, a deduction towards the repayment of any amount loaned or advanced to the employee by the employer; Provided that- i) any such deduction shall not exceed one third of the total remuneration due to the employee on the pay-day concerned; ii) no such deduction shall be made in respect of any period during which the employee's wage is reduced in terms of subclause (e); Provisos (i) and (ii) shall not apply where the contract of employment is terminated. g) A deduction in accordance with the provisions of clause 9(7); and h) Any other deduction made at the written request of the employee and with the agreement of the employer: Provided that if the purpose of such deduction is the payment of any amount to any banking institution, building society, insurance business, registered financial institution, local authority, the State or any third party, the employer shall make such payment to such institution in accordance with the request of the employee within the timeframe indicated in such request, or where no timeframe is indicated, within one week. Sectoral Determination 3: Private Security Sector, South Africa 5. Ordinary Hours of Work, Overtime and Payment for Overtime 1) An employer shall not require or permit an employee to work more ordinary hours of work than provided for during the- a) first year from date of implementation of this Determination, in the case of- aa) a security officer, category A, (i) 48 in any week; and (ii) subject to subparagraph (i), 12 on any day; ab) a security officer, category B, (i) 55 in any week; and (ii) subject to subparagraph (i), 12 on any day; b) second year from date of implementation of this Determination, in the case of- aa) a security officer, category A, (i) 48 in any week; and (ii) subject to subparagraph (i), 12 on any day; ab) a security officer, category B, (i) 50 in any week; and (ii) subject to subparagraph (i), 12 on any day; c) thereafter for all security officers- (i) 45 in any week (ii) subject to subparagraph (i) 12 on any day d) a ship security officer or cargo security officer; 12 on any day; e) any other class of employee- i) 45 in any week; and ii) subject to subparagraph (i), in the case of an employee who normally works on aa) not more than five days in a week, nine on any day; and ab) more than five days in a week, eight on any day. 2) Averaging of Working Hours: Despite subclause (1), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months. a) An employer may not require or permit an employee to work more than- i) an average of 55 ordinary hours of work in a week for the first year from date of implementation and 50 ordinary hours of work per week for the second year from date of implementation of this Determination over the agreed period and 45 ordinary hours per week thereafter; and ii) an average often hours overtime in a week over the agreed period; and iii) more than 12 hours on any day, b) Any employee whose hours are averaged in terms hereof must be paid at the premium hourly rate in respect of all work performed on a Sunday or Public Holiday, as per clause 7 and 8. c) Any employee whose hours are averaged in terms hereof will still take, and the employer shall grant, a weekly free period of at least 36 hours or a fortnightly free period of at least 60 hours in terms of clause 5(10). 3) Compressed working week: An agreement in writing may require or permit an employee to work up to 12 hours in a day, without receiving overtime pay. No such agreement may require or permit an employee to work- a) more than 45 hours in any week, with the exception of the arrangements in respect of security officers in terms of sub clauses 5(1)(a),(b) and (c); b) more than 10 hours overtime in any week; or c) on more than five days in any week. 4) Meal intervals: An employer shall not require or permit an employee, other than a casual employee, a security officer, a ship security officer or a cargo security officer, to work for more than five hours continuously without a meal interval of not less than one hour, during which interval such employee shall not be required or permitted to perform any work, and such interval shall not form part of the ordinary hours of work or overtime: Provided that- a) such interval may be reduced to not less than half an hour by written mutual agreement between an employer and an employee; b) periods of work interrupted by intervals of less than one hour, except where proviso (a) or (e) applies, shall be deemed to be continuous; c) if such interval is longer than one hour, any period exceeding one and a quarter hours shall be deemed to form part of the ordinary hours of work; d) only one such interval during the ordinary hours of work of an employee on any day shall not form part of the ordinary hours of work; e) when on any day by reasons of overtime worked, an employer is required to give an employee a second meal interval, such interval may be reduced to not less than 15 minutes; f) a driver who during such interval does not work other than being or remaining in charge of the vehicle or its load shall for the purposes of this subclause be deemed not to have worked during such interval; g) in case of an employee who is wholly or mainly engaged in cleaning premises, if such interval is longer than three hours, any period in excess of three hours shall be deemed to form part of the ordinary hours of work. 5) Rest intervals: An employer shall grant to each employee, other than a driver, a security officer, a ship security officer or cargo security officer, a rest interval of not less than 15 minutes as practicable in the middle of the first and second work period of the day, and during such interval such employee shall not be required or permitted to perform any work, and such interval shall be deemed to be part of the ordinary hours of work of such employee. 6) Hours of work to be consecutive: Save as provided in subclauses (4) and (5), all hours of work of an employee, other than a ship security officer or a cargo security officer, on any day shall be consecutive. 7) Night Work: a) An employer may only require or permit an employee to perform night work if- i) the employee is compensated by the payment of an allowance, as per clause 3(6); and ii) Public or other transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift. b) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must inform the employee in writing, or orally, if the employee is not able to understand a written communication, in a language that the employee understands- aa) of any health and safety hazards associated with the work that the employee is required to perform; and ab) of the employee's right to undergo a medical examination in terms of subclause (7)(c). c) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards- aa) before the employee starts, or within a reasonable period of the employee starting, such work; and ab) at appropriate intervals while the employee continues to perform such work; and d) transfer the employee to suitable day work within a reasonable time if- aa) the employee suffers from a health condition associated with the performance of night work; and ab) if it is practicable for the employer to do so. e) For the purposes of subclause (7)(b), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or fifty times per year. 8) Limitation of overtime: An employer shall not require or permit an employee to work overtime otherwise than in terms of an agreement concluded by the employer with the employee and such overtime shall not exceed, in the case of- a) a casual employee, three hours on any day; b) any other class of employee, 10 hours in any week. 9) Payment for overtime: An employer shall pay an employee who works overtime, at a rate of not less than one and a half times the employee's hourly wage in respect of the total overtime period so worked by such employee. 10) Rest periods: a) An employer must allow an employee- i) a daily rest period of at least 12 consecutive hours between ending and recommencing work provided that the rest period must be completed within 24 hours of the employee commencing work on that day; and ii) a weekly rest period of at least 36 consecutive hours. b) A daily rest period in terms of subclause (10)(a) may, by written agreement, be reduced to 10 hours for an employee- i) who lives on the premises at which the work place is situated; and ii) whose meal interval lasts for at least three hours. c) Despite subclauses (10)(a)(ii), an agreement in writing may provide for- i) a rest period of at least 60 consecutive hours every two weeks; or ii) an employee's weekly rest period to be reduced by up to eight hours in any week, if the rest period in the following week is extended equivalently. 11) Exceptions: a) Subclauses (4), (5), (6) and (8) shall not apply to an employee while an employee is engaged in emergency work. b) Subclause (4) shall not apply to an employee wholly or mainly engaged in the tending, feeding or cleaning of animals. Sectoral Determination 3: Private Security Sector, South Africa 6. Annual Bonus 1) An employer shall pay to every employee, for every week that the employee was paid or entitled to be paid and in respect of each completed 12 months of service with such employer, an annual bonus calculated as follows: Employee's hourly wage X employee's ordinary hours of work X 52/12 X "R"/100 "R" being the ratio for the relevant year, viz.: i) 34 for the first year of operation of this determination; ii) 56 for the second year of operation of this determination; iii) 78 for the third year of operation of this determination; iv) 100 thereafter. 2) The annual bonus shall be paid on the anniversary of the employees date of employment with the employer unless the employer and a representative trade union and/or the employee mutually agree in writing upon another date. 3) The annual bonus shall be calculated monthly at the wage rate in effect during each relevant month and paid to the employee as per subclause 6(2). Sectoral Determination 3: Private Security Sector, South Africa 7. Public Holiday 1) All employees working on a Public Holiday will be remunerated in terms of the provisions of the Basic Conditions of Employment Act, No 75 of 1997, or any amendment thereto. 2) Compensation to a casual employee, a ship security officer or a cargo security officer for work on a public holiday: a) Whenever a casual employee works on a public holiday, the employer shall pay the employee in respect of the total period worked by the employee on such day an amount calculated at a rate of not less than double the hourly wage prescribed for a full-time employee in the same area who performs the same class of work as the casual employee is required to do. Provided that where the employer requires a casual employee- i) to perform the work of a class of employee for whom wages on a rising scale are prescribed, the expression "hourly wage" shall mean the hourly wage for a qualified employee of that class as calculated in terms of clause 3(4); ii) to work for less than four hours on such a day, an employee shall be deemed to have worked for four hours. b) Whenever a ship security officer or a cargo security officer works on a public holiday, an employer shall pay the employee in respect of the total period worked by the employee on such day an amount calculated at a rate of not less than double the hourly wage. 3) Payment: The remuneration payable in terms of this clause to an employee, other than a casual employee, a ship security officer or a cargo security officer, shall be paid to the employee not later than the normal pay-day immediately after the day in respect of which such remuneration is payable. A casual employee, a ship security officer or a cargo security officer shall be remunerated as set out in clause 4(6). Sectoral Determination 3: Private Security Sector, South Africa 8. Compensation for Work on a Sunday 1) All employees working on a Sunday will be remunerated in terms of the provisions of the Basic Conditions of Employment Act, No 75 of 1997, or any amendment thereto. 2) Compensation to a casual employee, a ship security officer or a cargo security officer for work on a Sunday: a) Whenever a casual employee works on a Sunday, the employer shall pay the employee in respect of the total period worked by the employee on such day an amount calculated at a rate of not less than double the hourly wage prescribed for a full-time employee in the same area who performs the same class of work as the casual employee is required to do. Provided that where the employer requires a casual employee- i) to perform the work of a class of employee for whom wages on a rising scale are prescribed, the expression "hourly wage' shall mean the hourly wage for a qualified employee of that class as calculated in term of clause 3(4); ii) to work for less than four hours on such a day, an employee shall be deemed to have worked for four hours. b) Whenever a ship security officer or a cargo security officer works on a Sunday, an employer shall pay the employee in respect of the total period worked by the employee on such day an amount calculated at a rate of not less than double the hourly wage. 3) Payment: The remuneration payable in terms of this clause to an employee, other than a casual employee, a ship security officer or a cargo security officer, shall be paid to the employee not later than the normal pay-day immediately after the day in respect of which such remuneration is payable. A casual employee, a ship security officer or a cargo security officer shall be remunerated as set out in clause 4(6). Sectoral Determination 3: Private Security Sector, South Africa 9. Annual Leave 1) The employer shall grant to an employee, and the employee shall take, in respect of each completed period of 12 months of employment with the employer, one day of annual leave on full pay, for every 17 days on which the employee worked or was entitled to be paid. 2) 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 of annual leave, calculated at the employee's ordinary rate of remuneration immediately before the beginning of the period of annual leave; and in accordance with clauses 2(51) and 3(1). 3) An employee is entitled to take leave accumulated in an annual leave cycle on consecutive days. 4) An employer must grant annual leave not later than six months after the end of the annual leave cycle. 5) An employer may not require or permit an employee to take annual leave during- a) any other period of leave to which an employee is entitled in terms of this determination; or b) any period of notice of termination of employment. 6) Despite subclause (5), an employer must permit an employee, at the employee's written request, to take paid leave during a period of unpaid leave. 7) An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave, calculated at the employee's rate of remuneration, granted to the employee at the employee's request during that leave cycle. 8) 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 on which the employee would ordinarily have worked. 9) An employer may not require or permit an employee to work for the employer during any period of annual leave. 10) An employer may not pay an employee instead of granting paid leave in terms of this clause, except- a) upon termination of employment; and b) In accordance with clause 18(9)(b). 11) An employer must pay an employee leave pay- a) before the beginning of the period of leave; or b) by agreement, on the employee's usual pay day. 12) An employee who has become entitled to a period of leave prescribed in subclause (1), read with subclause (7), and whose employment terminates before such leave has been granted and been taken, shall, upon such termination be paid the amount an employee would have received, in respect of the leave, had the leave been granted to the employee and taken by the employee as at the date of the termination calculated in terms of subclause (2). Sectoral Determination 3: Private Security Sector, South Africa 10. Sick Leave 1) In this clause "sick leave cycle" means the period of 36 months employment with the same employer immediately following- a) an employee's commencement of employment; or b) the completion of that employee's prior sick leave cycle. 2) During every sick leave cycle an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 3) Despite subclause (2), during the first six months of employment. an employee is entitled to one day's paid sick leave for every 26 days worked. 4) During an employee's first sick leave cycle an employer may reduce the employee's entitlement to sick leave in terms of subclause (2) by the number of days sick leave taken in terms of subclause (3). 5) Subject to subclause (8), an employer must pay an employee for a day's sick leave- a) the ordinary wage the employee would have received, excluding any allowances; and b) on the employee's usual pay day. 6) An agreement may reduce the pay to which an employee is entitled in respect of any day's absence in terms of this clause if the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay; and a) the employee's entitlement to pay- i) for any day's sick leave is at least 75 per cent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and ii) for sick leave over the sick leave cycle is at least equivalent to the employee's entitlement in terms of subclause (2). 7) An employer may, as a condition precedent to the payment by the employer of any amount claimed in terms of this clause by an employee require the employee to produce a certificate signed by a registered medical practitioner, or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament stating the nature and the duration of the employees incapacity: in respect of any absence from work- a) on more than two consecutive working days; or b) on the working day immediately preceding or the working day immediately succeeding, in the case of- i) a security officer a free period, public holiday or Sunday; ii) any other class of employee a Sunday or public holiday. 8) When an employee has, during any period up to eight weeks received payment in terms of this clause on two or more occasions without producing such a certificate, an employer may during the period of eight weeks immediately succeeding the last such occasion require the employee to produce such a certificate in respect of any absence from work. Sectoral Determination 3: Private Security Sector, South Africa 11. Family Responsibility Leave 1) This section applies to an employee- a) who has been in employment with an employer for longer than four months; and b) who works for at least four days a week for that employer. 2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days paid leave, which the employee is entitled to take- a) when the employee's child is born; b) when the employee's child is sick; or c) in the event of the death of- i) the employee's spouse or life partner; or ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 3) An employer must pay an employee for a day's family responsibility leave- a) the ordinary wage the employee would have received for a day worked; and b) on the employee's usual pay day. 4) An employee may take family responsibility leave in respect of the whole or a part of a day. 5) Before paying an employee for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in subclause (2) for which the leave was required. 6) An employee's unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues. Sectoral Determination 3: Private Security Sector, South Africa 12. Maternity Leave 1) An employee is entitled to at least four consecutive months' maternity leave. 2) An employee may commence maternity leave- a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child. 3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. 5) An employee must notify her employer in writing, unless the employee is unable to do so, of the date on which the employee intends to- a) commence maternity leave; and b) return to work after maternity leave. 6) Notification in terms of subclause (5) must be given- a) at least four weeks before the employee intends to commence maternity leave; or b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child. 8) During an employee's pregnancy, and for a period of up to six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if- a) the employee is required to perform night work, as defined in subclause 2(33) or if her work poses a danger to her health or safety or that of her child; and b) it is practicable for the employer to do so. Sectoral Determination 3: Private Security Sector, South Africa 13. Written Particulars of Employment 1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing- a) the full name and address of the employer; b) the name and occupation of the employee or a brief description of the work for which the employee is employed; c) the places of work and, where the employee is required or permitted to work at various places, an indication of this; d) the date on which the employment begins; e) the employee's ordinary hours of work and days of work; f) the employee's wage or the rate and method of calculating wages; g) the rate of pay for overtime work; h) any other payments to which the employee is entitled; i) how frequently remuneration will be paid; j) any deductions to be made from the employee's remuneration; k) the leave to which the employee is entitled; l) the period of notice required to terminate employment, or if the employment is for a specified period, the date when employment is to terminate; m) a description of any council or sectoral determination which covers the employer's business; n) any period of employment with a previous employer that counts towards the employee's period of employment; o) a list of any other documents that form part of the contract of employment, indicating a place that is readily accessible to the employee where a copy of each may be obtained. 2) When any matter listed in subclause (1) changes, the written particulars must be revised to reflect the change and the employee must be supplied with a copy of the document reflecting the change. 3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 4) Written particulars of this section must be kept by the employer for a period of three years after the termination of employment. Sectoral Determination 3: Private Security Sector, South Africa 14. Keeping of Records 1) Every employer must keep a record containing at least the following information: a) the employee's name and occupation; b) the time worked by each employee; c) the remuneration paid to each employee; d) the date of birth of any employee under 18 years of age; and e) any other prescribed information. 2) A record in terms of subclause (1) must be kept by the employer for a period of three years from the date of the last entry in the record. 3) No person may make a false entry in a record maintained in terms of subclause (1). 4) An employer who keeps a record in terms of this clause is not required to keep any other record of time worked and remuneration paid as required by any other employment law. Sectoral Determination 3: Private Security Sector, South Africa 15. Weapons, Uniforms, Overalls and Protective Clothing 1) An employer shall- a) provide free of charge any weapon, ammunition, tool, whistle or other equipment which a security officer, in the performance of the employee's duties, needs or is required to use for self-defence or apprehension; b) and shall in like manner provide the officer with, or ensure that an officer is provided with, a seat which has a proper back support; c) supply, free of charge, a jersey, coat or other suitable outer garment for the employee's protection against cold or wet weather, as well as any footwear, uniform, overall, or other protective clothing which an employer requires an employee to wear or which an employee is required by any law to provide for an employee. An employer who provides an employee with any such apparel, may require the employee to clean it in the employee's own time, in which event the employer shall pay the employee not less than R1,50 per week, which shall however not be payable during periods of absence from work. 2) Any article provided by an employer in terms of subclause (1) shall remain the employer's property. 3) No employer shall make any deduction from the wages of any employee in regard to any article provided to that employee in terms of subclause (1): Provided that where an article is found by a fair procedure to have been lost or damaged by an employee, excluding damage arising from the performance of the employee's duties or normal wear and tear, an employer may, notwithstanding anything to the contrary in this determination recover the cost of such article from the employee by making a deduction over an appropriate period from that employees wage. Further, provided that such monthly deduction shall not exceed one tenth of the employees monthly remuneration. Sectoral Determination 3: Private Security Sector, South Africa 16. Prohibition of Employment of Children 1) No person may employ a child- a) who is under 15 years of age; or b) who is under the minimum school-leaving age in terms of any law, if this is 15 or older. 2) No person may employ a child in employment- a) that is inappropriate for a person of that age; b) that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development. 3) A person who employs a child in contravention of subclause (1) or (2) commits an offence. Sectoral Determination 3: Private Security Sector, South Africa 17. Prohibition of Forced Labour 1) Subject to the Constitution of the Republic of South Africa, all forced labour is prohibited. 2) No person may, for the employee's own benefit or for the benefit of someone else, cause, demand or impose forced labour in contravention of subclause (1). 3) A person who contravenes subclauses (1) or (2) commits an offence. Sectoral Determination 3: Private Security Sector, South Africa 18. Termination of Contract of Employment 1) Subject to subclause (6)(b), a contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than- a) one week, if the employee has been employed for four weeks or less; b) two weeks, if the employee has been employed for more than four weeks, but not more than one year; c) four weeks, if the employee has been employed for one year or more. 2) A collective agreement may permit a notice period shorter than required by subclause (1). 3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer. 4) a) Notice of termination of a contract of employment must be given in writing, except when it is given by an illiterate employee. b) If an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of. the employer to the employee in an official language the employee reasonably understands. 5) Notice of termination of a contract of employment given by an employer or an employee must not- a) be given during any period of leave to which the employee is entitled in terms of clause 9(1), and b) run concurrently with any period of leave to which the employee is entitled in terms of clause 9(1), except sick leave. 6) Nothing in this clause affects the right- a) of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law, and b) of an employer or an employee to terminate a contract of employment without notice for any cause recognised by law. 7) Instead of giving an employee or employer notice in terms of subclause (1), an employer may pay the employee the remuneration the employee would have received, calculated in accordance with subclause (1), as if the employee had worked during the notice period. 8) If an employee gives notice of termination of employment and the employer waives any part of the notice, the employer must pay the remuneration referred to in subclause (7), unless the employer and employee agree otherwise. 9) On termination of employment, an employer must pay an employee- a) remuneration in respect of- i) ordinary time worked, calculated in terms of clause 3(4); ii) overtime worked, calculated in terms of clause 5(9); iii) time worked on a Sunday, calculated in terms of clause 8(3); and iv) time worked on a public holiday or in respect of a public holiday on which the employee would normally have worked if it had not been a public holiday, in terms of clauses 7(1) and 7(2); b) remuneration calculated in accordance with clause 9(1) for any period of annual leave due in terms of clause 9(2) that the employee has not taken; c) if the employee has been in employment longer than four months, in respect of the employee's annual leave entitlement during an incomplete annual leave cycle, at a rate of one day's remuneration in respect of every 17 ordinary days on which the employee worked or was entitled to be paid. Sectoral Determination 3: Private Security Sector, South Africa 19. Severance Pay 1) For the purposes of this clause, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. 2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with clause 3. 3) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subclause (2). 4) The payment of severance pay in compliance with this clause does not affect an employee's right to any other amount payable according to law. 5) lf there is a dispute only about the entitlement to severance pay in terms of this section, the employee may refer the dispute in writing to the CCMA. Sectoral Determination 3: Private Security Sector, South Africa 20. Certificate of Service 1) On termination of employment an employee is entitled to a certificate of service stating- a) the employee's full name; b) the name and address of the employer; c) a description of any bargaining council or sectoral employment standard by which the employer's business is covered; d) the date of commencement and date of termination of employment; e) the title of the job or a brief description of the work for which the employee was employed at the date of termination; f) the remuneration at date of termination; and g) if the employee so requests, the reason for termination of employment. Sectoral Determination 3: Private Security Sector, South Africa 21. Attendance Register 1) An employer shall maintain an attendance register in any form of attendance documentation which is acceptable, in which the employer shall record in ink or indelible pencil the name and class of each of the employees for each day worked and on that day make the necessary entries in respect of items (i) to (vi) of subclause (3)(a). 2) An employer may, instead of an attendance register, provide a semi-automatic time recorder which records substantially the same information as is required to be kept in the attendance register specified in subclause (1). 3) Every employer shall, in respect of each day worked by an employee on that day- a) record in ink or indelible pencil in such attendance register referred to in subclause (1)- i) the day of the week; ii) the time an employee commenced work; iii) the time of commencement and termination of all meal or other intervals which are not reckonable as ordinary hours of work; iv) the time of finishing work for the day; v) the time of commencement and termination of overtime worked for the day; and vi) the total amount of hours worked for the day. b) in an establishment where a semi-automatic time recorder is provided, make an entry by means of such recorder to show the following: i) the time of commencement of work; ii) the time of commencement and termination of all meal or other intervals which are not reckonable as ordinary hours of work; and iii) the time of finishing work for the day. 4) An employer shall retain such attendance register referred to in subclause (1) or the information recorded by a semi-automatic time recorder referred to in subclause (2), as the case may be, for a period of not less than three years after the date of the last entry therein or thereon. Sectoral Determination 3: Private Security Sector, South Africa 22. Variation by the Minister The Minister may make a determination to replace or exclude any basic condition of employment provided for in this Determination in terms of section 50 of the Basic Conditions of Employment Act, 1997, upon motivated application by an employer and/or an employers' association. (All the provisions of Wage Determination 481: Security Services Trade, South Africa published under Government notice No 1187 of 18 September 1998 will be superseded by this determination with effect from the date of implementation) Notice No. R.1007 Sectoral Determination 4: Clothing and Knitting Sector, South Africa I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby in terms of Section 55(1) of the Basic Conditions of Employment Act, 1997, make the Sectoral Determination in the Schedule in respect of the Clothing and Knitting Sector and fix the third Monday after the date of publication of this notice as the date from which the provisions of this determination shall be binding upon all employers and employees in the Sector. M M S MDLADLANA, MP Minister of Labour Sectoral Determination 4: Clothing and Knitting Sector, South Africa 1. Definitions In this determination any word or expression to which a meaning has been assigned in the Basic Conditions of Employment Act, 1997, has the meaning so assigned, unless the context indicates otherwise- "agreement" includes a collective agreement; "Bespoke Tailoring Industry" means the making of outer garments for and to the measurements of individual persons but excludes the making of tailored outer garments for the execution of special measure orders from dealers whose customers' measurements are taken by or are the responsibility of such dealers and the making of all classes of garments including quantity production tailoring made to the order of any department in the national or provincial sphere of government; Transnet and the South African Airways or local government; "CCMA" means the Commission for Conciliation, Mediation and Arbitration established in terms of section 112 of the Labour Relations Act, 1995; "commission work" means any system under which an employee receives additional remuneration calculated on the value or volume of sales effected or on the value or number of orders submitted to and accepted by the employer; "daily wage" means an employee's weekly wage divided by the number of days on which he or she ordinarily works in a week; "day" means a period of 24 hours measured from the time when the employee normally commences work; "emergency work" means work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work; "employee" means any person excluding an independent contractor, who works for another person for more than 24 hours per month in the clothing and knitting sector and who receives, or is entitled to receive, any remuneration; "establishment" means any premises or part thereof, on or in connection with which one or more employees are employed in the clothing and knitting sector; "experience" means the total period of employment an employee has had in the Bespoke Tailoring or the Clothing and Knitting Industry, whether within the Republic of South Africa or elsewhere, in any capacity other than as a driver of a motor vehicle, or a mechanic, and shall include- a) in the case of a clerical employee, all periods of employment which such employee has had as a clerical employee, irrespective of the trade, industry or undertaking in which such experience was gained; b) in the case of a presser or folder who has been in the laundry trade, seeking employment as a presser, ironer or folder in the clothing industry, half of his or her total experience in the laundry trade; c) in the case of all other employees, each completed period of six months' training in any work similar to that for which wages are set out in this Agreement; "fully fashioned garment" means a garment of which the form or body, body and sleeve, or sleeves, back and front, are fully shaped on a knitting machine; "hourly wage" means an employee's weekly wage divided by his weekly ordinary hours of work; "incapacity" means inability to work owing to any sickness or injury other than sickness or injury caused by an employee's own misconduct: Provided that any such inability to work, caused by an accident or scheduled disease for which compensation is payable under the Compensation for Occupational injuries and Diseases Act, 1993 (Act No. 130 of 1993), shall only be regarded as incapacity during any period in respect of which no disability payment is payable in terms of that Act; "laundry trade" means the trade in which employers and employees are associated for the purpose of laundering, cleaning or dyeing all types of woven, spun, knitted or crocheted fabrics or articles made from such fabrics, including all operations incidental thereto or consequent thereon, if carried out by such employers and their employees; "law" includes the common law; "medical practitioner" means--- a) a person entitled to practice as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No 50 of 1974); or b) a traditional healer; "midwife" means a person registered or enrolled to practice as a midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50 of 1978); "month" means a calendar month; "monthly wage" means an employee's weekly wage multiplied by four and a third; "night work" means work performed after 18:00 and before 06:00 the next day; "ordinary hours of work" means the hours of work prescribed in clause 7 but if by agreement between an employer and the employee the latter works a lesser number of ordinary hours, it means such shorter hours; "overtime" means the time that an employee works during a day or a week in excess of ordinary hours of work, including overtime worked on a Sunday; "public holiday" means all public holidays declared as such in terms of the Public Holidays Act, 1994 (Act No. 36 of 1994); "piece-work" means any system by which earnings are calculated upon the quantity or output of work performed; "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and "remunerate" has a corresponding meaning; "retail dressmaking" means the making of single garments for girls and women to the measurement of individual persons, not as special measure orders from dealers whose customers' measurements are taken by or are the responsibility of such dealers; "retail millinery" means the making of hats in shops for sale in such shops and the making of hats to the measurements of individual persons; "short time" means a temporary reduction in the number of ordinary hours of work owing to slackness of trade, shortage of raw materials, vagaries of the weather, a breakdown of plant or machinery or buildings that are unfit for use or is or are in danger of becoming unfit for use; "the Act" means the Basic Conditions of Employment Act, 1997; "wage" means that amount of money payable to an employee in terms of clause 3(1) in respect of his or her ordinary hours of work: Provided that if an employer regularly pays an employee in respect of such ordinary hours of work an amount higher than that prescribed in clause 3, it means such higher amount, and "weekly wage" has a corresponding meaning; "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls; "work place" means any place where employees work; Sectoral Determination 4: Clothing and Knitting Sector, South Africa 1.1 Definitions of the Occupations, Capacities and Duties of Employees in the Clothing Division and Knitting Division (a) Definitions of the Occupations, Capacities and Duties of Employees in the Clothing Division only "Category A Employee" means an employee engaged in any one or more of the following duties or capacities in the clothing division: (1) assistant storeperson; (2) automatic hydraulic hat presser; (3) belt person; (4) boiler attendant; (5) cardboard box maker; (6) cleaner; (7) coat turner; (8) covering buckles by hand or machine and/or trimming and cleaning belts after lining and belt have been machined together; (9) cutter of traveller's swatches; (10) despatch packer, (11) eyelet punching and letting; (12) general worker (13) guiding material with paper through automatic pleating machine; (14) hat sprayer; (15) ironer of fusible interlinings with hand iron positioning and spot fusing of fusible interlinings with special machine; (16) layer by hand; (17) layer by machine; (18) marker; (19) operator; (20) packer; (21) patent turner (hand or machine); (22) pinner; (23) plain sewer; (24) putting fasteners on caps; (25) putting material between two paper looms (formers) and preparing for steambox in hand or loom pleating process; (26) putting prepared formers in steam box and taking them out again in hand or loom pleating; (27) riveting buckles, bending belt buckles, punching holes for buckles and prongs, pressing prongs into buckles, stapling buckles onto belt; (28) rubberising, i.e. waterproofing processes or the work of smearing rubber solution upon seams or edges and rolling them over with a small wooden hand roller, cleaning off any rubber solution, painting seams or oilskins and waterproof hats; (29) sorter; (30) spreading of P V C (plastic solution) in waterproofing process or on raincoats and protective wear; (31) stamper; (32) raking material out of looms in hand or loom pleating process; (33) waterproofing seams; (34) winder; (35) under-presser. "assistant storeperson" means an employee other than a labourer who, under the supervision of a storeperson, assists in issuing or receiving goods; "automatic hydraulic hat presser" means an employee operating an automatic hydraulic hat press used solely for shaping hats; "belt person" means an employee other than a learner mechanic, engaged in fixing machine belts, oiling bearings, filling oil cans and similar work and assisting the establishment's mechanic; "boiler attendant" means an employee under the supervision of a foreperson or factory manager, who is responsible for maintaining the water level and steam pressure of a boiler in an establishment, and who may stoke, rake, slice and draw the fire in such boiler; "cardboard box maker" means an employee engaged in operating a cardboard box making machine; "cleaner" means an employee engaged in cutting or trimming off loose ends of cotton left in the garments by previous operators; "coat-turner" means an employee engaged in turning coat facings out after machining; "despatch packer" means an employee who, under the supervision of a foreperson or clerical employee, is wholly or mainly engaged in making up orders and in packing goods for transport, including the sealing of cellophane bags by hand or machine, or delivering in connection with the despatch department of an establishment; "general worker" means an employee who is engaged in one or more of the following occupations: a) binding, wiring or strapping boxes or bales or other containers; b) carrying or stacking goods; c) delivering letters or messages or light parcels within the factory premises; d) folding or inserting mail, affixing postage stamps or labels for posting; e) general gardening work; f) loading or unloading vehicles, trailers or international standard containers; g) making and serving tea or similar beverages and washing crockery, cutlery and kitchen utensils; h) marking, stencilling or affixing labels on boxes, bales or other containers by hand; i) mixing rubber solution for rubberised garments; j) mopping or washing of toilet facilities; k) operating a duplicating or addressograph or franking machine; l) sweeping with a broom or dusting and wiping down chairs and tables; m) washing or polishing of floors and staircases by machine or by hand. "hat sprayer" means an employee engaged in spray painting hats, "ironer" means an employee engaged in the ironing of fusible interlinings with hand iron positioning and spot fusing of fusible interlinings with special machine; "layer by hand" means an employee engaged in laying up materials by hand preparatory to cutting; "layer by machine" means an employee engaged in laying materials by machine preparatory to culling; "marker" means an employee engaged in marking the position of pockets, buttons and/or button holes; "operator" means an employee who operates a- a) hand operated button-covering machine; b) a shrinking press; c) a semi-automatic or automatic fusing machine; d) semi-automatic. press stud-machine; or e) zip machine. "packer" means an employee engaged in packing garments into boxes or other suitable wrappings or tying them into bundles prior to their being sent to the dispatch department; "patent turner" means an employee engaged in turning out or over the edges of collars, facings, bands, cuffs, pockets or flaps whether by hand or machine; "pinner" means an employee engaged in pinning unfinished or finished garments; "plain sewer" means an employee engaged solely in performing by hand one or more of the following operations: tacking permanent turn-ups; tacking waistband linings; sewing on hooks and eyes, tickets or press studs; fastening catch in tops of trousers; sewing on buttons; making and sewing on hangers; felling crutch linings in trousers, felling bottoms and waist-band linings, and various odds and ends of sewing; felling necks of vests; fastening edge stays and odds and ends of sewing; felling bottoms of linings or seams of same already basted into position; felling bindings; fastening facings inside already basted in position; "sorter" means an employee engaged in sorting out garments or parts of garments for the various operations; "stamper" means an employee engaged in stamping the size or identity work numbers on garments or parts of garments, or on any article connected with packaging or despatching of garments; "winder" means an employee engaged in the winding or unwinding of lace, embroidery, braids, ribbons, bindings and elastic; "under-presser" means an employee other than a presser employed in pressing processes. "Category B Employee" means an employee engaged in one or more but not limited to the following duties or capacities in the clothing division: (1) baster; (2) clicker; (3) conveyor feeder; (4) cutter; (5) examiner; (6) factory clerk; (7) finisher by hand; (8) fitter-up; (9) folder; (10) lay copier; (11) machinist; (12) maker of bows for dresses; (13) operator of automatic lace, embroidery or monogramming machine; (14) presser; (15) seam welder; (16) seller of automatic pleating machines; (17) shaper; (18) sloper. "baster" means an employee engaged in hand sewing in setting a coat or parts of a coat into position preparatory to other operations or underbasting, i.e. hand sewing of linings of coats into position preparatory to sewing the edge seams; "clicker" means an employee who cuts out parts of garments from dyes using a mechanical or hydraulic press; "conveyor feeder" means an employee responsible for feeding prepared parts of garments on to a conveyor for further operations and who may be assisted by one or more sorters; "cutter" means an employee who cuts out all articles of wearing apparel, linings, trimmings or interlinings by any method; "examiner" means an employee who examines finished garments for quality; "finisher by hand" means an employee who performs one or more of the following operations by hand:- a) putting pads or wadding into shoulders of coats; b) fastening or serging sleeve-heads; c) wadding sleeve-heads; d) felling silk facings already basted into position; e) making button-holes by hand; f) felling sleeve-head linings, holding such in position with the fingers; g) beader or embroiderer by hand. "fitter-up" means an employee who takes the outside of garments together with the cut out linings (called trimmings) and adjusts the outside and insides together accurately so that parts may go forward to the machine to be put together correctly; "folder" means an employee engaged in the folding of garments by machine or by hand and buttoning up of garments; "lay copier" means an employee engaged in placing of numbered patterns on a lay to conform with a numbered photograph, diagram or plan; "machinist" means an employee who performs by sewing machine any operation in the making of clothing; "presser" means an employee employed in pressing the finished garment by hand or machine; "seam welder" means an employee who joins seams by any method other than by a thread-sewing machine; "setter of automatic pleating machines" means an employee engaged in setting of pleats on automatic pleating machines; "shaper" means an employee engaged in shaping the lapels and collars of coats preparatory to under basting; "sloper" means an employee engaged in marking or trimming the shape of the necks in the shirt section, preparatory to other operations. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 1.1 Definitions of the Occupations, Capacities and Duties of Employees in the Clothing Division and Knitting Division (b) Occupations, Capacities and Duties of Employees in the Knitting Division only "Category C Employee" means an employee engaged in any one or more of the following capacities or duties in the knitting division: (1) colouring mass-measurer; (2) cutter; (3) dyer's assistant; (4) handyperson; (5) knitting machine operator; (6) linker; (7) loader of magazine or comb; (8) mender; (9) overlocker; (10) plain sewer; (11) sewing machinist including button, buttonhole and hemming machinist; (12) shaper of fully fashioned garments; (13) warper; (14) wrap knitter. "colouring mass-measurer" means an employee who, under the supervision of a dyer, mass-measures dye-stuff or other chemicals; "cutter" means an employee who by means of a power-driven cutting machine, knife or shears is engaged in cutting garment lengths, fronts, backs or sleeves of fully fashioned garments or trimmings, who marks or cuts attachments, points of necks or armholes or trimmings and who may use a template for this purpose; "dyer's assistant" means an employee who, under the supervision of a dyer, is engaged in mass-measuring or mixing colour substances or attending or operating machines used in the dyeing or finishing processes; "handyperson" means an employee in a knitting establishment who does minor repairs or adjustments to machinery or equipment, other than machinery or equipment directly used in the manufacture of the products of an establishment, and who may effect minor repairs or renovations to buildings but who does not perform work normally done by an artisan; "knitting machine operator" means an employee who operates one or a set of knitting machines and who may change needles, sliders and sinkers and straighten tricks, including chain and card control and running on after press-offs; "linker" means an employee who is engaged in operating a linking machine for toeclosing of stockings or socks or for joining parts of fully fashioned garments or attaching trimmings to fully fashioned garments or parts of garments; "loader of magazine or comb" means an employee engaged in the transferring of stitches onto the needles of a bar or magazine; "mender" means an employee who is engaged in repairing knitting faults in garments or parts of garments, blanks, stockings or socks; "overlocker" means an employee who operates an overlocking machine; "plain sewer" means an employee engaged solely in performing by hand one or more of the following operations:- a) tacking permanent turn-ups; tacking waistband linings; b) sewing on hooks and eyes, tickets and/or press studs; c) fastening catch in tops of trousers; d) sewing on buttons; e) making and sewing on hangers; f) felling crutch linings in trousers; g) felling bottoms and waist-band linings, and various odds and ends of sewing; h) felling necks of vests; i) fastening edge stays and odds and ends of sewing; j) felling bottoms of linings or seams of same already basted into position; k) felling bindings and fastening facings inside already basted in position. "sewing machinist" means an employee who by means of a sewing machine is engaged in any operation in the making of clothing including button, buttonhole and hemming machinist; "shaper of fully fashioned garments" means an employee in a knitting establishment who, by means of a power-driven cutting machine, knife or shears is engaged in cutting garment lengths, fronts, backs or sleeves of fully fashioned garments or trimmings, who marks or cuts attachments, points of necks or armholes or trimmings and who may use a template for this purpose; "warper" means an employee who prepares warps from cones or bobbins for a warp knitting or similar machine and prepares the beam; "wrap knitter" means an employee operating one or a set of warp knitting machines and who may correct faults, change or straighten needles, fill bars or make minor adjustments to such machines. "Category D Employee" means an employee engaged in any one or more of the following capacities or duties in the knitting division: "backwinder" means an employee who recovers yarn from a knitted article by winding it back onto a bobbin, comb, magazine or spool; "boiler attendant" means an employee who, under supervision, maintains the water level and steam pressure in a boiler and who may make, maintain and draw the fire in such boiler; "cleaner" means an employee engaged in cutting or trimming off loose ends of cotton or cloth left on garments or parts of garments by previous operators; "despatch packer" means an employee who, under the supervision of a despatch clerk, is engaged in packing, assembling, marking, addressing and mass-measuring goods for despatch or delivery; "draw threader" means an employee who separates knitted articles by removing the drawthread; "examiner" means an employee who examines finished garments for quality; "floorwalker or runner" means an employee engaged in carrying garments or parts of garments from one place to another within the workplace; "general worker" means an employee who is engaged in one or more of the following duties: a) binding, wiring or strapping boxes or bales or other containers; b) carrying or stacking goods; c) cutting up or otherwise destroying rejected hosiery or fabrics; d) delivering letters or messages or light parcels within the factory premises; e) folding or inserting mail, affixing postage stamps or labels for posting; f) general gardening work; g) lime-washing or colour-washing buildings or other structures; h) loading or unloading vehicles, trailers or international standard containers; i) making or maintaining fires, or removing refuse or ashes; j) making and serving tea or similar beverages and washing crockery, cutlery and kitchen utensils; k) marking, stencilling or affixing labels on boxes, bales or other containers by hand; l) mixing rubber solution for rubberised garments; m) mopping or washing of toilet facilities; n) operating a duplicating or addressograph or franking machine; o) sweeping with a broom or dusting and wiping down chairs and tables; p) washing or polishing of floors and staircases by machine or by hand. "grader or sorter" means an employee who is engaged in sorting or grading hosiery into pairs according to length and size or sorting trimmings, materials or parts of fully-fashioned garments; "mender of socks" means an employee who is engaged in repairing knitting faults in garments or parts of garments, blanks, stockings or socks; "operator" means an employee who is an operator of a- a) calendar machine; b) slitting machine; c) brushing, raising or cropping; d) dye machine; e) dyeing or hydro-extracting machine. "parcel maker" means an employee engaged in closing or sealing parcels and cartons prior to despatch and delivery; "presser" means an employee who is engaged in the ironing or pressing of finished garments by hand or machine, excluding open steam pressing or boarding of garments on automatic continuous steam belts; "pre-or post boarder or former" means an employee who is engaged in placing or removing stockings, socks or garments on or from forms; "sampler" means an employee engaged in the making up of sample cards; "seamer" means an employee who is engaged in joining seams in stockings or socks by means of a seaming machine; "turner" means an employee engaged in turning out or over the edges of collars, facings, bands, cuffs, pockets or flaps whether by hand or machine; "winder" means an employee who is engaged in operating a yarn-winding machine; "yarn changer" (pig tailor) means an employee who is responsible for loading and unloading the yarn on knitting machines, or an employee who brings yarn to and from the machines, removes fabric and cleans the machines and may stop the machine to change the yarn and may restart the machine only if he or she stopped the machine for the purpose of changing the yarn and shall not carry out any other functions of the knitting machine operator. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 1.1 Definitions of the Occupations, Capacities and Duties of Employees in the Clothing Division and Knitting Division (c) Occupations, Capacities and Duties of Employees in the Clothing and Knitting Division "Category E Employee" means an employee engaged in any one or more of the following duties or capacities in the knitting division: (1) assistant foreperson; (2) dyer; (3) patternmaker; (4) supervisor; and (5) mechanic. "assistant foreperson" means an employee who under the supervision of a foreperson, is in charge of the employees, other than clerks, storepersons and dyers, in an establishment, who exercises control over such employees and who is responsible to the foreperson for the efficient performance by them and their duties; "mechanic" means an employee engaged in the installation, repair and maintenance of boilers and machinery; "pattern maker" means an employee engaged in designing or making master patterns; "dyer" means an employee who is responsible for and engaged in dyeing or other finishing processes and who decides on the nature, mass, blending and application of the dyes or other chemicals to be used; "supervisor" means an employee who, under the supervision of a foreperson is in change of a group of employees in an establishment and who is responsible for the efficient performance by them of their duties and who may supervise set leaders or team leaders. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 1.1 Definitions of the Occupations, Capacities and Duties of Employees in the Clothing Division and Knitting Division (d) Other Occupations, Capacities and Duties of Employees in the Clothing and Knitting Division "band knife cutter" means an employee who cuts out all articles of wearing apparel, linings, trimmings or interlinings with a band knife; "clerical employee" means an employee who is engaged in: a) writing, typing and filing; b) operating a calculating machine, computer terminal, punch-card machine or accounting machine; c) any other clerical work and includes a cashier, despatch clerk, storeperson, shipping clerk, invoice clerk, workstudy clerk and telephone switchboard operator but does not include any other class of employee elsewhere defined, even though clerical work may form part of such an employee's work. "assistant head cutter" means a person who assists the head-cutter in creating designs, styles, fashions and in making patterns, grading patterns and planning cutting jobs; "head cutter" means a person who actively supervisors the cutting room and designs, styles and fashions makes patterns, grades patterns and who plans cutting jobs; "watchperson" means an employee engaged in guarding premises, buildings or other property; "driver of a motor vehicle" means an employee who is engaged in driving a motor vehicle and for the purpose of this definition "driving a motor vehicle" includes all periods of driving and any times spent by the driver on work connected with the vehicle or the load and all periods during which he or she is obliged to remain at his or her post in readiness to drive. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 2. Area and Scope of Determination 1) This determination shall apply to every employer in the Clothing and Knitting Sector as defined in subclause (2) and to all employees in that sector: Provided that the Determination shall not apply to- a) a new employer as defined in subclause (3); b) a manager as defined in subclause (4). 2) "clothing and knitting sector" or "the sector" means the sector in which employers and employees are associated for the purpose of- a) making, irrespective of the process or method used in such making, any one or more of the following classes of clothing, and includes the knitting of such articles as- i) all classes of men's and boys' tweed and linen hats and caps; ii) all classes of outer and undergarments for day wear, including shirts, collars, ties, socks, scarves, cloth belts and part of garments; iii) pyjamas and other nightwear; iv) protective clothing; v) ladies' or men's gloves; vi) stockings or socks; vii) all classes of garments including quantity production tailoring made to the order of any Department in the national or provincial sphere of government; Transnet; the South African Airways; or Local government; viii) tailored outer garments for the execution of special measure orders from dealers whose customers measurements are taken by or on behalf of such dealers; and b) conducting the knitting of clothing fabric where this is performed in conjunction with the manufacture of any one or more of the articles mentioned in (a) but does not include- i) retail dressing, retail millinery or the making of garments to the measurement of individual persons; ii) any manufacturing activity in the clothing, knitting or ladies' stockings industry for which a bargaining council is registered or deemed to have been registered in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995). 3) "New employer" means a business newly established in the clothing and knitting sector, during the first 12 months of its existence in the sector: Provided that if an existing business undergoes a change of name or ownership (including a change of directors, members or partners) while largely retaining the same employees and/or clients, it shall not be regarded as a new employer. [See also the proviso to clause 3(1)]. 4) "manager" means an employee who is charged by the employer with the overall supervision over, responsibility for and direction of the activities of an establishment or part of an establishment and the employees engaged therein, but does not include an employee in the same establishment who relieves or acts for a manager during the latter's absence. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 3. Remuneration 1) Minimum wages: The minimum wages which an employer shall pay to employees shall be as specified herein: Provided that- i) if a new employer, as defined in clause 2(3), has been engaged in the sector for a period of not more than 12 months such wages may be reduced by not more than 10 per cent during such period, whereafter the minimum wages specified herein shall become payable. ii) an employer who, at the coming into effect of this determination, employs not more than 30 employees in the aggregate in or in connection with his business and whose annual turnover does not exceed R450 000.00 shall pay his employees, in the first 12 months after the coming into effect of this determination, 70% of the wages specified herein and thereafter pay the minimum wages as specified. For the purpose of this subclause "annual turnover" means, at any date, the turnover for the preceding 12 months. (Click here to view the wages tables for the various categories) 2) Basis of contract.- For the purposes of this clause the contract of employment of an employee, shall be on a weekly basis, and except as provided for in clause 6(4), he or she shall be paid in respect of a week not less than the full weekly wage prescribed in subclause (1), as read with the definition of "wage" in clause 1 and with subclause (3), for an employee of his or her category in the area in which he or she works, whether he or she has in that week worked the maximum number of ordinary hours of work applicable to him or her or less. 3) Differential wage.- An employer who requires or permits a member of one category of employees to perform work for longer than one hour on any day, either in addition to his or her own work or in substitution therefore, work of another category for which- a) a wage higher than that of his or her own category is set out in subclause (1), shall pay to such employee in respect of that day, not less than the daily wage calculated at the higher rate; or b) a rising scale of wages terminating in a wage higher than that of his or her own category is set out in subclause (1), shall pay to such employee in respect of that day not less than the daily wage calculated on the notch in the rising scale immediately above the wage which the employee was receiving for his or her ordinary work: Provided that- i) this subclause shall not apply where the difference between categories in terms of subclause (1) is based on experience; ii) unless expressly otherwise provided in a written contract between an employer and an employee, nothing in this determination shall be so construed as to preclude an employer from requiring an employee to perform work of another category for which the same or a lower wage is prescribed. 4) Calculation of wages.- The hourly, daily or monthly wage of an employee shall be calculated as indicated in the definitions of these expressions in clause 1. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 4. Payment of Remuneration 1) An employee, except as provided for in clause 13(6) and (7) shall be paid: a) weekly, fortnightly or monthly; b) in cash, by cheque or by direct deposit into an account designated by the employee, and in South African currency; c) remuneration in cash or by cheque- i) at the workplace or at a place agreed to by the employee; ii) during the employee's working hours or within 15 minutes of the commencement or conclusion of such hours; d) remuneration not later than seven days after- i) the completion of a period for which the remuneration is payable; ii) the termination of the contract of employment. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 5. Information concerning Remuneration 1) The remuneration shall be in a sealed envelope which shall become the property of the employee, on which must be recorded or which must be accompanied by, a statement showing- a) the employer's name and address; b) the employee's name and occupation; c) the period in respect of which payment is made; d) the employee's rate of remuneration and overtime rate; e) the number of ordinary hours worked by the employee during that period; f) the number of overtime hours worked by the employee during that period; g) the number of hours worked by the employee on a paid holiday or on a Sunday; h) the employee's wage; i) details of any other remuneration arising out of the employee's employment; j) details of any deductions made; and k) the actual amount paid to the employee. 2) The particulars set out in subclause (1) may be coded on the envelope and such code shall be fully set out and explained in an accompanying notice or in a notice kept posted in a conspicuous place in the establishment, accessible to all employees affected thereby. 3) Where the remuneration is deposited into the employee's account the employer shall hand to him or her the statement referred to in subclause (1). Sectoral Determination 4: Clothing and Knitting Sector, South Africa 6. Deductions and other matters concerning Remuneration 1) Training fee.- Subject to any other law no payment by or on behalf of an employee shall be accepted by an employer, either directly or indirectly, in respect of the employment or training of that employee. 2) Purchase of goods.- An employer shall not require his or her employee to purchase any goods from him or her or from any shop, place or person nominated by him or her. 3) Accommodation - Subject to any other law, an employer shall not require his or her employee to accept accommodation, meals or rations from him or her or from any person or at any place nominated by him or her. 4) Deductions- An employer shall not levy any fines against his or her employee nor make any deductions from the employee's remuneration other than the following- a) With the written consent of the employee, a deduction for any holiday, sick, medical, insurance, savings, provident or pension fund, or in respect of subscriptions to a trade union; b) A deduction of any amount which an employer by law or order of any competent court is required or permitted to make; c) Whenever the ordinary hours of work are reduced because of short-time, a deduction not exceeding the amount of the employee's hourly wage in respect of each hour of such reduction: Provided that- i) such deduction shall not exceed one third of the employee's weekly wage, irrespective of the number of hours by which the ordinary hours of work are thus reduced; ii) no deduction shall be made in the case of short-time arising from slackness of business or a shortage of raw materials or packing materials unless the employer has given his or her employee notice on the previous work-day of his or her intention to reduce the ordinary hours of work; iii) no deduction shall be made in the case of short-time owing to vagaries of the weather or a breakdown of plant or machinery or a breakdown or threatened breakdown of buildings, in respect of the first hour not worked, unless the employer has given his or her employee notice on the previous day that no work will be available; d) with the written consent of an employee, a deduction of any amount which the employer has paid or has undertaken to pay to- i) any banking institution, building society, insurance business, registered financing institution, local authority in respect of a payment on a loan granted to such employee to acquire a dwelling; ii) any organisation or body in respect of the rent of a dwelling or accommodation in a hostel occupied by such employee if such dwelling or hostel is provided through the instrumentality of such organisation or body wholly or party from funds advanced for that purpose by the State or a body referred to in subparagraph (i); e) with the written consent of an employee, a deduction towards the repayment of any amount loaned or advanced to him or her by the employer: Provided that any such deduction shall not exceed one quarter of the total remuneration due to the employee on the pay-day concerned: Provided further that no such deduction shall be made in respect of any period during which the employee's wage is reduced in terms of paragraph (d). Sectoral Determination 4: Clothing and Knitting Sector, South Africa 7. Hours of Work and Overtime 1) Exclusions- a) Subclauses (3), (4) (5) and (6) shall not apply to an employee while he or she is engaged on emergency work. b) Subclause (3) and (4) shall not apply to a watchperson: Provided that if a meal interval is granted to such an employee the time taken up by such interval shall be deemed to be time during which he or she worked; c) Subclause (4) shall not apply to a driver or an employee who assists such driver on the vehicle; d) Subclause (3), (4), (5) and (6) shall not apply to an employee who is remunerated according to an agreement under clause 18. e) Subclause (2), (3), (5) and (6) shall not apply to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination made in substitution thereof. 2) Ordinary hours of work - An employer shall not require or permit an employee to work more ordinary hours of work than: a) 45 in any week from Monday to Saturday, inclusive, and b) subject to subparagraph (i), in the case of an employee who normally works on- aa) not more than five days in a week, nine on any day; ab) more than five days in a week, eight on any day, unless the hours on one day do not exceed five. 3) Meal Intervals - An employer shall not require or permit an employee to work for more than five hours continuously without a meal interval of not less than one hour, during which interval such employee shall not be required or permitted to perform any work, and such interval shall not form part of the ordinary hours of work or overtime: Provided that- a) such interval may be reduced to not less than half an hour by written mutual agreement between an employer and an employee; b) periods of work interrupted by intervals of less than one hour, except when proviso (a) or (e) applies, shall be deemed to be continuous; c) if such interval is longer than one hour any period in excess of one and one quarter hours shall be deemed to be time worked; d) only one such interval during the ordinary hours of work of an employee on any day shall not form part of the ordinary hours of work; e) when on any day by reason of overtime worked an employer is required to give an employee a second meal interval, such interval may be reduced to not less than 15 minutes; f) a driver who during such interval does not work other than being or remaining in charge of the vehicle or its load shall for the purpose of this subclause be deemed not to have worked during such interval; g) such interval need to be granted to a shift worker during his or her ordinary hours of work on any shift if he or she is given the opportunity during such hours of having a meal while at his or her post in terms of any law. 4) Rest intervals - An employer shall grant to each of his or her employees a rest interval of not less than 10 minutes as nearly as practicable in the middle of each first work period and second work period of the day, and during such interval such employee shall not be required or permitted to perform any work, and such interval shall be deemed to be part of the ordinary hours of work of such employee: Provided that where an employer grants his or her employee a rest interval of not less than 20 minutes during each morning work period, the afternoon rest interval may be dispensed with. Except as provided for in subclause (3) and (4) all hours of work of an employee on any day shall be consecutive. 5) Daily and weekly rest periods- a) An employer must allow an employee- i) a daily rest period of at least twelve consecutive hours between ending and recommencing work; and ii) a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday. b) A daily rest period in terms of subclause (5)(a) may, by written agreement be reduced to 10 hours for an employee- i) whose meal interval lasts for at least three hours; or ii) who is a driver of a motor vehicle or an employee assisting on or accompanying a motor vehicle driven over a distance of more than 480 klms in one direction from the point of departure to the destination, if the ordinary hours of work of such a driver or other member of the vehicle staff, together with any overtime worked, do not exceed 14 hours on any day. c) Despite subclause (a)(ii), an agreement in writing may provide for- i) rest period of at least 60 consecutive hours every two weeks; or ii) an employee's weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently. 6) Overtime - An employer shall not require or permit an employee to work overtime otherwise than in terms of an agreement concluded by him or her with the employee and such overtime shall not exceed: a) three hours on any day; or b) 10 hours in any week; Provided that this limitation shall not apply in respect of the employees referred to in subclause (5)(b)(ii). 7) Payment for overtime- a) An employer shall pay an employee, who works overtime, at a rate of not less than one and a half times his or her hourly wage. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 8. Night Work 1) Exclusion: This clause shall not apply to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination in substitution thereof. 2) An employer may only require or permit an employee to perform night work, if so agreed and if- a) the employee is entitled to and shall receive payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and b) transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift. 3) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must- a) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands i) of any health and safety hazards associated with the work that the employee is required to perform; and ii) of the employee's right to undergo a medical examination in terms of paragraph (b); b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards- i) before the employee starts, or within a reasonable period of the employees starting, such work, and ii) at appropriate intervals while the employee continues to perform such work; and iii) transfer the employee to suitable day work within a reasonable time if- iv) the employee suffers from a health condition associated with the performance of night work; and v) it is practicable for the employer to do so. 4) For the purposes of subclause (3), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 9. Compressed Working Week 1) Exclusion: This clause shall not apply to an employee earning an annual wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination in substitution thereof. 2) An agreement in writing between an employer and an employee may require or permit the latter to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 7(3), without receiving overtime pay. 3) An agreement in terms of subclause (2) may not require or permit an employee to work- a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 10. Averaging Hours of Work 1) Exclusion: This clause shall not apply to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination in substitution thereof. 2) Despite clause 7(2) and clause 7(7), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement. 3) An employer may not require or permit an employee who is bound by a collective agreement in terms of subclause (2) to work more than- a) an average of 45 ordinary hours of work in a week over the agreed period; b) an average of five hours' overtime in a week over the agreed period; 4) a collective agreement in terms of subclause (2) lapses after 12 months. 5) Subclause (4) only applies to the first two collective agreements concluded in terms of subclause (2). Sectoral Determination 4: Clothing and Knitting Sector, South Africa 11. Payment for Work on a Sunday 1) Exclusion: This clause shall not apply to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination in substitution thereof. 2) An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one-half times the employee's wage for each hour worked. 3) If an employee works less than the employee's ordinary shift on a Sunday and the payment that the employee is entitled to in terms of subclause (2) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage. 4) Despite subclause (2) and (3), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subclause (2) and (3). 5) Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of clause 7, but is taken into account in calculating the overtime worked by the employee in terms of clause 7(6). 6) If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. 7) An employer must grant paid time off in terms of subclause (4) within one month of the employee becoming entitled to it. 8) An agreement in writing may increase the period contemplated by subclause (7) to 12 months. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 12. Public Holidays 1) Exclusion: Subclause (4) shall not apply to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination in substitution thereof. 2) An employer may not require an employee to work on a public holiday except in accordance with an agreement. 3) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay- a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day; b) an employee who does work on the public holiday- i) at least double the amount referred to in paragraph (a); or ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day. 4) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to- a) the employee's ordinary daily wage; plus b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method. 5) An employer must pay an employee for a public holiday on the employees usual pay day. 6) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 13. Annual Leave 1) In this clause "annual leave cycle" means the period of 12 months employment with the same employer following- a) the employee's commencement of work; or b) the completion of that employee's prior leave cycle. 2) Subject to subclause (4), an employer shall grant to an employee, and the employee shall take, in respect of an annual leave cycle, leave as follows- a) a watchperson whose ordinary hours of work- i) exceeds 48 in a week and who normally works on- aa) not more than five days in a week, 20 consecutive work-days; bb) more than five days in a week, 24 consecutive work-days; ii) do not exceed 48 in a week and who normally works on- aa) not more than five days in a week, 15 consecutive work-days; bb) more than five days in a week, 18 consecutive work-days; b) any other class of employee who normally works-on i) not more than five days in a week, 15 consecutive workdays; ii) more than five days in a week, 18 consecutive work-days; c) an employee who works on an hourly or a daily basis, one hour for every 17 hours worked; Provided that an employee who normally works on- i) not more than five days in a week, one day for every 153 hours or 17 days worked; ii) more than five days in a week, one day for every 136 hours or 17 days worked. Provided that an employee who before this determination became binding had been entitled to a longer period of annual leave than that prescribed in this subclause, shall retain the right to such leave while employed by the same employer; 3) The employer shall pay an employee in respect of the leave mentioned in subclause (1), in the case of an employee referred to in- a) subclause (2) (a) (i), an amount of not less than four times; b) subclause (2) (a) (ii) or (2) (b), an amount of not less than three times, c) subclause (2)(c), an amount proportional to the weekly wage which the employee was receiving immediately prior to the date on which the leave commenced. 4) The leave mentioned in subclause (2) shall be granted and be taken, as the case may be, at a time to be fixed by the employer: Provided that- a) if such leave has not been granted and taken earlier, it shall be granted and be taken so as to commence within six months after the completion of the 12 months of employment to which it relates; b) the period of leave shall not be concurrent with any period.- i) of sick leave in terms of clause 14(2) or with absence from work owing to incapacity in the circumstances set out in clause 14(7)(b) or (c), amounting in the aggregate in any period of 12 months to not more than 15 weeks; ii) during which the employee is under notice of termination of employment in terms clause 21, or c) an employer may set off against such period of leave any days of occasional leave granted up to a maximum of 7 days per annum on full pay to his employee at such employee's written request during the period of employment to which the annual leave relates; d) when an employer requires an employee to take leave before the expiration of the 12 months of employment to which such leave relates, the employer shall grant such employee the full period of leave accruable for 12 months of employment and, with due regard to the accrual of any increments in terms of clause 3, shall pay such employee in respect of such leave an amount of not less than that which the employee would have been entitled to at the date on which the leave would normally have accrued. e) If the employment of an employee referred to in paragraph (d) terminates before the expiration of 12 months in respect of which leave was granted in terms of that paragraph, the employer may set off the difference between the amount paid to the employee and the amount to which the employee would have been entitled in terms of subclause (7) had leave not been granted to him or her against the remuneration due to such an employee at the termination of the contract. 5) The remuneration in respect of the leave mentioned in subclause (2), shall be paid not later than the last work-day before the date of commencement of the leave or, at the written request of the employee, not later than the first pay-day after the expiration of the leave. 6) An employee whose employment terminates during an incomplete leave cycle and who has been in employment for longer than 4 months shall, upon such termination and in addition to any other remuneration which may be due to him or her, be paid one day's remuneration in respect of every 17 days on which he or she worked or was entitled to be paid; Provided that an employer may make a proportionate deduction in respect of any period of leave granted to an employee in terms of proviso (c) to subclause (4). 7) An employee who has become entitled to the period of leave mentioned in subclause (2), read with subclauses (4) (c) and whose employment terminates before such leave has been granted and been taken, shall and with due regard to subclause (9), upon such termination be paid the amount he or she would have received in respect of the leave had the leave been granted to and taken by him or her as at the date of the termination. 8) For the purposes of this clause- a) the weekly wage at any date of an employee who is engaged in piecework or commission work shall be his or her average weekly remuneration for the preceding 13 weeks or, if a lesser period has been worked, for the number of completed weeks so worked; b) "employment" and "period of employment" shall be deemed to include- i) any period in respect of which an employer pays an employee in lieu of notice in terms of clause 21; ii) any period amounting in the aggregate in any period of 12 months, to not more than 15 weeks during which an employee is absent- aa) on leave in terms of this clause; bb) on sick leave in terms of clause 14(2) or owing to incapacity in the circumstances set out in clause 14(8)(b) or (c); cc) at the instance of his or her employer; dd) with the consent or condonation of his or her employer; ee) for any other reason that is not in breach of the contract of employment. iii) previous employment with the same employer if the break in employment is less than one year. c) employment shall be deemed to commence- i) in the case of an employee who, before this determination become binding, had become entitled to a period of annual leave in terms of any law, on the date on which he or she last became entitled to leave under that law; ii) in the case of an employee who was in employment before this determination became binding and to whom any law providing for annual leave applied but who had not yet become entitled to a period of leave in terms thereof, on the date on which such employment commenced; iii) in the case of any other employee, on the date on which such employee entered the employer's service or the date on which this determination became binding, whichever is the later; 9) a) Despite anything to the contrary contained in this clause, an employer may for the purposes of annual leave, at any time, but not more than once in any period of 12 months, close his or her establishment for 14 consecutive days or suspend an activity for 14 consecutive days and in that case he or she shall remunerate his or her employee in terms of subclause (2) or in terms of paragraph (c) hereof, as the case may be. b) Whenever a paid holiday falls on a day which otherwise would be a work day for an employee and such paid holiday falls within the closed or suspension period referred to in paragraph, (a), another work-day shall be added to the said closed or suspension period as a further period of leave and the employee shall be paid an amount of not less than his or her daily wage in respect of each such day added. c) An employee who, at the date on which an establishment or activity in which he or she is employed is closed or suspended, is not entitled to the full period of annual leave mentioned in subclause (2) shall, in respect of any leave due to him, be paid by his or her employer on the basis set out in subclause (7), and for the purposes of annual leave thereafter his or her employment shall be deemed to commence on the date of such closing of the establishment or suspension of the activity. 10) An employer may not pay an employee instead of granting paid leave in terms of this clause, except upon termination of employment and in accordance with subclauses (6) and (7). Sectoral Determination 4: Clothing and Knitting Sector, South Africa 14. Sick Leave 1) For purposes of this clause "sick leave cycle" means the period of 36 months employment with the same employer immediately following- a) an employee's commencement of employment; or b) the completion of that employee's prior sick leave cycle. 2) An employee is entitled to an amount of paid sick leave, during every sick leave cycle, equal to the number of days the employee would normally work during a period of six weeks. 3) Despite subclause (2) during the first six months of employment, an employee is entitled to one day's sick leave for every 26 days worked. 4) An employer may, during the employee's first leave cycle, reduce the employee's entitlement to sick leave in terms of subclause (2) by the number of days' sick leave taken in terms of subclause (3). 5) If during the a sick leave cycle an employee is absent due to incapacity for longer than the number of days sick leave to which he or she is entitled in terms of subclause (2) the employer shall not be required to pay the employee for the excess sick leave taken. 6) Where an employer in terms of any law pays fees for hospital or medical treatment in respect of an employee, the fees so paid may be set off against the payment of sick leave. 7) Payment for any period of absence on sick leave to an employee who is employed on piecework or commission work shall be at the rate of not less than the employee's average remuneration for the last 13 weeks before the start of the sick leave or if a shorter period has been worked, for the number of completed weeks so worked. 8) Limitation. An employer is not required to pay sick leave to an employee in terms of this clause- a) If the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and the employee fails to produce a medical certificate stating the nature and duration of his or her incapacity, after having been requested to do so by the employer. The medical certificate referred to in this subclause must be issued by a medical practitioner or any other person who is certified to diagnose and treat patients and is registered with a professional council established by an Act of Parliament. b) If the employer, at the written request of an employee, makes a contribution that is at least equal to that made by the employee, to any fund or organisation nominated by the employee which in the event of the employee's incapacity in the circumstances set out in this clause would ensure the payment to the employee of an amount not less than the equivalent of his or her wage for any period of such leave in terms of subclause (2). c) for any period of incapacity of an employee in respect of which the employer is required by any law to pay to the employee not less than his or her full wage. Application to occupational accident or diseases 9) This clause shall not apply to inability to work caused by an accident or occupational disease as defined in the Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993), except in respect of any period during which no compensation is payable in terms of that Act. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 15. Maternity Leave 1) An employee is entitled to at least four consecutive months' maternity leave. 2) An employee may commence maternity leave- a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child. 3) No employee may work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) An employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. 5) 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- a) commence maternity leave; and b) return to work after maternity leave. 6) Notification in terms of subclause (5) must be given- a) at least four weeks before the employee intends to commence maternity leave; b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) Protection of employees before and after birth of a child- a) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child. b) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if- i) the employee is required to perform night work, as defined in clause 8 or her work poses a danger to her health or safety or that of her child; and ii) it is practicable for the employer to do so. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 16. Family Responsibility Leave 1) This clause applies to an employee- a) who has been in employment with an employer for longer than four months; and b) who works for at least four days a week for that employer. 2) An employer must grant an employee, during each annual leave cycle, at the request of the employee, three days' paid leave, which the employee is entitled to take- a) When the employee's child is born; b) when the employee's child is sick; or c) in the event of the death of- i) the employee's spouse or life partner; or ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 3) Subject to subclause (5), an employer must pay an employee for a day's family responsibility leave- a) the wage the employee would ordinarily have received for work on that day; and b) on the employee's usual payday. 4) An employee may take family responsibility leave in respect of the whole or a part of a day. 5) Before paying an employee for leave in terms of this section, an employer may require reasonable proof of an event contemplated in subclause (2) for which the leave was required. 6) An employee's unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 17. Piece-Work 1) An employer may when engaging an employee or after at least one week's notice if the employee is already in his or her employ, introduce any piece-work system and, except as provided for in clause 6(4), such employer shall pay the employee who is employed on such piece-work system remuneration at not less than the wage mentioned in clause 3(1) for an employee of his or her category and experience, plus the rates applicable under such system. 2) An employer shall keep posted up in a conspicuous place in his or her establishment a schedule reflecting the rates referred to in subclause (1) or he or she may in lieu thereof supply every employee engaged on piece-work with a letter signed by himself/herself, or on his or her behalf, setting out the said rates. 3) An employer shall not require or permit an employee to undertake any work for him or her solely on piece-work basis and any amount payable to an employee in terms of subclause (1) shall be aside from and in addition to his or her wage, which shall not be less than the wage mentioned in clause 3(1) for an employee of his or her category and experience. 4) An employer who intends to cancel or amend any piecework system in operation, or the rates applicable thereunder shall give an employee not less than one month's notice of such intention: Provided that an employer and an employee may agree on a longer period of notice, in which case the employer shall give notice for a period not shorter than that agreed upon. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 18. Commission Work 1) An employee who by agreement with an employer undertakes commission work on a regular basis shall be supplied by the employer, before such work is commenced, with a true copy of the agreement or a statement setting out the terms of the agreement, which shall include- a) the wage payable to the employee, which shall not be less than the wage mentioned in clause 3(1) for an employee of his or her category and experience, the rate of the commission and the conditions of entitlement thereto; b) the day of the week or month on which commission earned is due and payable; c) the type, description, number, quantity or value of sales or orders (individual, weekly, monthly or otherwise) which the employer is from time to time prepared to accept. d) the day of payment of commission earned by the employee before termination of the contract of employment: Provided that such day of payment shall be no later than the last work-day of the month succeeding the month during which employment was terminated; and e) where applicable, the area in which the employee is required or permitted to work. 2) Except as provided for in clause 6(4), an employer shall pay an employee at not less than the wage and rate of commission agreed upon between them. 3) The employee's wage and commission shall be paid on the day stipulated in the agreement referred to in subclause (1), and the provisions of clause 4(1) shall not apply in respect of such payment; 4) An employer shall not require or permit an employee to undertake any work for him or her on the basis of commission only and any amount payable to an employee as commission under an agreement entered into in terms of subclause (1) shall be aside from and in addition to the wage stipulated therein. 5) An employer or an employee who intends to cancel or to negotiate for an alteration of an agreement in regard to commission work shall give written notice of such intention, and the period of such notice shall not be less than nor run concurrently with that required to terminate the contract of employment of such employee in terms of clause 20. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 19. Prohibition of Employment 1) An employer shall not- a) employ any person under the age of 15 years; or b) a child who is under the minimum school leaving age in terms of any law, if he or she is 15 years or older; 2) An employer shall not employ a child in employment- a) that is inappropriate for a person of that age; b) that places at risk the child's well-being, education, physical or mental health or spiritual, moral or social development. 3) All forced labour is prohibited. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 20. Termination of Contract of Employment 1) Despite clause 3(2), an employer or an employee who desires to terminate the contract of employment, shall give- a) during the first four weeks of employment, not less than one week's notice; b) after the first four weeks but not more than one year of employment, not less than two week's notice of termination of contract; c) After one year of employment not less than four weeks' notice. 2) The notice of termination of a contract of employment must be given in writing except when it is given by an employee who is not able to write. 3) Where a notice of termination is given to an employee who is unable to read and understand it, the employer must arrange that the notice is explained to the employee in a language that the employee reasonably understands. 4) An employer or an employee may terminate the contract of employment without notice by paying the employee or paying the employer, as the case may be, in lieu of such notice not less than in the case of- a) one week's notice, the weekly wage the employee is receiving at the time of such termination; b) two weeks' notice, the wages the employee is entitled to in the two weeks. c) four weeks' notice, the wages the employee is entitled to in the four weeks: Provided that this shall not affect- i) the right of an employer or an employee to terminate the contract without notice for any cause recognised by law as sufficient; ii) any collective agreement which provides for a period of notice of equal duration on both sides shorter than that provided for in this clause; iii) the right of a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of the Labour Relations Act, 1995 or any other law. 5) Where there is an agreement in terms of proviso (ii) to subclause (4), the payment in lieu of notice shall be commensurate with the period of notice agreed upon. 6) The notice referred to in subclause (1) shall be given on a work-day: Provided that the period of notice shall not run concurrently with nor shall notice be given during an employee's absence- a) on leave in terms of clause 13; b) on sick leave in terms of clause 14(2); c) owing to incapacity in the circumstances set out in clause 14(8)(b) or (c), amounting in the aggregate to not more than 15 weeks in a period of 12 months; d) on maternity leave in terms of clause 15. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 21. Severance Pay 1) For the purposes of this section, operational requirements' means requirements based on the economic, technological, structural or similar needs of any employer. 2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer, calculated in accordance with clause 3. 3) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subclause (2). 4) The payment of severance pay in compliance with this section does not affect an employee's right to any other amount payable according to law. 5) If there is a dispute only about the entitlement to severance pay in terms of this clause, the employee may refer the dispute in writing to the CCMA. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 22. Certificate of Service 1) On termination of employment an employee is entitled to a certificate of service stating- a) the employee's full name; b) the name and address of the employer; c) a description of any council or sectoral employment standard by which the employer's business is covered; d) the date of commencement and date of termination of employment; e) the title of the job or a brief description of the work for which the employee was employed at date of termination; f) the remuneration at date of termination; and g) if the employee so requests, the reason for termination of employment. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 23. Uniforms, Overalls and Protective Clothing 1) An employer shall supply, free of charge, any uniform, overall, gumboots, cap or other protective clothing which he or she is required by any law to provide to an employee or which the employee is required by any law to wear. 2) An employer to whom subclause (1) does not apply but who nevertheless, explicitly or implicitly, requires an employee to wear any such protective clothing shall supply it free of charge. 3) Any such protective clothing which has been provided to an employee free of charge shall remain the property of the employer. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 24. Attendance Register 1) Exclusion: This clause shall not apply to a driver of a motor vehicle or an employee accompanying such a driver or to an employee earning a wage in excess of the remuneration stipulated by the Minister in the determination made in Regulation 1438 published on 13 November 1998 or in any other determination in substitution thereof. 2) An employer shall provide in his or her establishment an attendance register substantially in the form of annexure "B" in which he or she shall record in ink or indelible pencil the name and class of each of his or her employees, and if such employee is unable to write his or her employer shall on his or her behalf for each day worked and for that day make the necessary entries in respect of items (i) to (iv) inclusive of subclause (4)(a), and sign such entries in the presence of a person nominated by the employee. 3) An employer may, instead of an attendance register provide a semi automatic time recorder together with the necessary cards, which shall be as nearly as practicable in the form of annexure "C", and supply to each employee such a card indicating the name or number of the employee and the date of termination of the week in respect of which it is to be used. 4) Unless prevented from doing so by unavoidable circumstances, an employee shall in respect of each day worked by him or her and on that day- a) record in ink or indelible pencil in the attendance register referred to in subclause (2);- i) the day of the week; ii) the time he or she commenced work; iii) the time of commencement and termination of all meal or other intervals which are not reckonable as ordinary hours of work; iv) the time of finishing work the day; v) the time of commencement and termination of overtime worked for the day; vi) the total number of hours worked for the day; and vii) his or her signature; b) in an establishment where a semi-automatic time recorder is provided, make an entry by means of such recorder on a card supplied in terms of subclause (3) to show the following: i) the time he or she commenced work; ii) the time of commencement and termination of all meal or other intervals which are not reckonable as ordinary hours of work; and iii) the time of finishing work for the day. 5) An employer shall retain the attendance register referred to in subclause (3), as the case may be, for a period of not less than three years after the date of the last entry therein or thereon. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 25. Written Particulars of Employment 1) An employer must supply an employee, when the employee commences employment, with the following particulars in writing- a) the full name and address of the employer; b) the name and occupation of the employee, or a brief description of the work for which the employee is employed; c) the place of work, and, where the employee is required or permitted to work at various places, an indication of this; d) the date of employment; e) the employee's ordinary hours of work and days of work; f) the employee's wage or the rate and method of calculating wages; g) the rate of pay for overtime work; h) any other cash payments that the employee is entitled to; i) any payment in kind that the employee is entitled to and the value of the payment in kind; j) how frequently remuneration will be paid; k) any deductions to be made from the employee's remuneration; l) the leave to which the employee is entitled; m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate; n) a description of any council or sectoral determination which covers the employer's business; o) any period of employment with a previous employer that counts towards the employee's period of employment; p) a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained. 2) When any matter listed in subclause (1) changes- a) the written particulars must be revised to reflect the change; and b) the employee must be supplied with a copy of the document reflecting the change. 3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 4) The employer must keep written particulars in terms of this clause for a period of 12 months after the termination of employment. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 26. Log Book 1) An employer shall provide his or her driver with a log-book as nearly as practicable in the form of annexure "D". 2) Every driver shall, in the log-book referred to in subclause (1), keep a daily log in duplicate in respect of each day's work and shall within 24 hours of the completion of the work to which it relates deliver a copy thereof to his employer and the employer shall retain such copy for a period of at least three years subsequent to such delivery. Sectoral Determination 4: Clothing and Knitting Sector, South Africa 27. Keeping of Sectoral Determination 1) Every employer on whom this sectoral determination is binding must- a) keep a copy of the sectoral determination available in the workplace at all times; b) make the copy available for inspection by an employee; and c) give a copy of the sectoral determination- i) to an employee who has paid the prescribed fee; and ii) free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum. (All the provisions of Wage Determination 471: Clothing and Knitting Industry, Republic of South Africa published under Government Notice R934 of 3 May 1991 and all the subsequent amendments will be superseded by this determination with effect from the date of implementation.) Sectoral Determination 4: Clothing and Knitting Sector, South Africa Annexure "A" Certificate of Service (See Annex ) Sectoral Determination 4: Clothing and Knitting Sector, South Africa Annexure "B" Attendance Register Click here to view this Attendance Register in Microsoft Excel. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Annexure "C" Automatic Time Recorder (See Annex) Sectoral Determination 4: Clothing and Knitting Sector, South Africa Annexure "D" Daily Log (See Annex) Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employees in the Clothing Division Category A IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 207.81 222.31 241.65 0-6 months 144.99 159.48 178.82 7-12 months 275.15 294.35 319.95 7-12 months 191.97 211.16 236.76 "Category A" means an employee engaged in any one or more of the following capacities or duties in the clothing division: Capacities: Assistant Storeperson / Automatic Hydraulic Hat Presser / Belt Person / Boiler Attendant / Cardboard Box Maker / Cleaner / Coat Turner / Cutter of Traveller's Swatches / Despatch Packer / General Worker / Hat Sprayers / Ironer / Layer by Hand / Layer by Machine / Marker / Operator / Packer / Patent Turner / Pinner / Plain Sewer / Sorter / Stamper / Winder / Duties: covering buckles by hand or machine and/or trimming and cleaning belts after lining and belts have been machined together / eyelet punching and letting / guiding material with paper through automatic pleating machine / putting fasteners on caps / putting material between two paper looms (formers) and preparing for steam box in hand or loom pleating process / putting prepared formers in steam box and taking them out again in hand or loom pleating! riveting buckles, bending belt buckles / punching holes for buckles and prongs! pressing prongs into buckles / stapling buckles onto belt! rubberising, i.e. waterproofing processes on the work of smearing rubber solution upon seams or edges and rolling them over with a small wooden hand roller! cleaning off any rubber solution, painting seams or oilskins and waterproof hats! spreading of P V C (plastic solution) in waterproofing process and/or on raincoats and protective wear / raking material out of looms in hand or loom pleating process. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employees in the Clothing Division Category B IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 210.52 225.21 244.80 0-6 months 146.88 161.56 181.15 7-12 months 230.65 246.74 268.20 7-12 months 160.92 177.01 198.46 13-18 months 250.00 267.44 290.70 13-18 months 174.42 191.86 215.11 19-24 months 275.15 294.35 319.95 19-24 months 191.97 211.16 236.76 "Category B" means an employee engaged in any one or more of the following capacities or duties in the clothing division: Capacities: Baster / Clicker / Conveyor Feeder / Cutter / Examiner / Finisher by Hand / Fitter-Up / Folder / Lay Copier / Machinist / Maker of Bows for Dresses / Operator of Automatic Lace, Embroidery or Monogramming Machine / Presser / Seam Welder / Setter of Automatic Pleating Machines / Shaper / Sloper / Any Other Employee not elsewhere specified / Factory Clerk. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employees in the Knitting Division Category C IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 236.45 252.95 274.95 0-6 months 164.97 181.46 203.46 7-12 months 268.57 287.31 312.30 7-12 months 187.38 206.11 231.10 13-18 months 300,69 321.67 349.65 13-18 months 209.79 230.76 258.74 19-24 months 332.43 355.62 386.55 19-24 months 231.93 255.12 286.04 25+ months 364.55 389.98 423.90 25+ months 254.34 279.77 313.68 "Category C" means an employee engaged in any one or more of the following capacities or duties in the knitting division: Capacities: Colouring Mass-Measurer / Cutter / Dyer's Assistant / Handyperson / Knitting Machine Operator / Linker / Loader of magazine or comb Mender / Overlocker / Plain Sewer / Sewing Machinist including button, buttonhole and hemming machinist / Shaper of fully fashioned garments / Warper / Wrap Knitter. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employees in the Knitting Division Category D IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 236.45 252.95 274.95 0-6 months 161.97 181.46 203.46 7-12 months 260.06 278.20 302.40 7-12 months 181.44 199.58 223.77 13-18 months 284.05 303.87 339.30 13-18 months 198.18 217.99 244.42 19-24 months 307.66 329.13 357.75 19-24 months 214.65 236.11 264.73 25+ months 357.20 382.12 415.35 25+ months 249.21 274.13 307.35 "Category D" means an employee engaged in any one or more of the following capacities or duties in the knitting division: Capacities: Backwinder / Boiler Attendant / Cleaner / Despatch Packer / Draw Threader / Examiner / Floorwalker / General Worker / Grader / Mender of socks / Operator / Parcel Maker / Pre-Cutter / Presser / Pre-or post boarder or former / Sampler / Seamer / Sorter / Turner / Winder / Yarn changer (pig tailor). Duties: Employees engaged in transferring, labelling, trimming off surplus threads / folding / carding and/or packing. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employees in the Clothing and Knitting Division Category E IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 252.71 270.34 293.85 0-6 months 176.31 193.94 217.44 7-12 months 297.00 310.50 337.50 7-12 months 202.50 222.75 249.75 13-18 months 340.56 356.04 387.00 13-18 months 232.20 255.42 286.38 19-24 months 384.51 401.99 436.95 19-24 months 262.17 288.38 323.34 25+ months 431.24 450.84 490.05 25+ months 294.03 323.43 362.63 "Category E" means an employee engaged in any one or more of the following capacities or duties in the clothing and knitting division: Capacities: Assist Foreperson / Dyer / Mechanic / Patternmaker / Supervisor. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employees in the Clothing and Knitting Division Any other Employees not elsewhere specified IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 210.52 225.21 244.80 0-6 months 146.88 161.56 181.15 7-12 months 230.65 246.74 268.20 7-12 months 160.92 177.01 198.46 13-18 months 250.00 267.44 290.70 13-18 months 174.42 191.86 215.11 19-24 months 275.15 294.35 319.95 19-24 months 191.97 211.16 236.76 Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employers in the Clothing and Knitting Division Band Knife Cutter IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 224.07 239.70 260.55 0-6 months 156.33 171.96 192.80 7-12 months 248.06 265.37 288.45 7-12 months 173.07 190.37 213.45 13-18 months 270.90 289.80 315.00 13-18 months 189.00 207.90 233.10 19-24 months 296.44 317.12 344.70 19-24 months 206.82 227.50 255.07 25+ months 335.14 358.52 389.70 25+ months 233.82 257.20 288.37 "Band Knife Cutter" means an employee who cuts out all articles of wearing apparel, linings, trimmings or interlinings with a bandknife; Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employers in the Clothing and Knitting Division Clerical IN THE MAGISTERIAL DISTRICT OF HAMMARSDALE, CAMPERDOWN, UMZINTO, PAARL, STELLENBOSCH AND UITENHAGE IN ALL OTHER AREAS First 12 months Second 12 months Third 12 months & thereafter First 12 months Second 12 months Third 12 months & thereafter Per week Per week Per week Per week Per week Per week 0-6 months 231.81 247.98 269.55 0-6 months 161.73 177.90 199.46 7-12 months 261.99 280.27 304.65 7-12 months 182.79 201.06 225.44 13-18 months 286.38 306.36 333.00 13-18 months 199.80 219.78 246.42 19-24 months 341.33 365.14 396.90 19-24 months 238.14 261.95 293.70 "Clerical Employee" means an employee who is engaged in the following capacities and duties in the clothing and knitting division: Capacities: Cashier / Despatch Clerk / Storeperson / Shipping Clerk / Invoice Clerk / Work Study Clerk / Telephone Switchboard Operator. Sectoral Determination 4: Clothing and Knitting Sector, South Africa Wages for Employers in the Clothing and Knitting Division (See annex) Sectoral Determination 7: Domestic Worker Sector, South Africa I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of section 51 (1) of the Basic Conditions of Employment Act, No. 75 of 1997, make a Sectoral Determination establishing conditions of employment and minimum wages for employees in the Domestic Worker Sector, South Africa, which appears in the schedule hereto and determine 1 September 2002 as the date from which the provisions of this Sectoral Determination shall be binding. M M S Mdladlana, MP Minister of Labour Sectoral Determination 7: Domestic Worker Sector, South Africa Part A: Application 1. Application 1) The determination applies to the employment of all domestic workers in the Republic of South Africa including domestic workers - a) employed or supplied by employment services ; b) employed as independent contractors. 2) This determination does not apply to domestic workers - a) employed on farms on which employees performing agricultural work are employed; b) covered by another sectoral determination in terms of the Basic Conditions of Employment Act; or c) covered by an agreement of a bargaining council in terms of the Labour Relations Act, 1995. 3) Only clauses 2 and 3 setting minimum wages apply to domestic workers who work less than 24 hours per month for an employer . 4) The provisions of the Basic Conditions of Employment Act apply to all domestic workers covered by this determination and their employers in respect of any matter not regulated by this sectoral determination. Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 2. Wages 1) With effect from 1 November 2002, an employer must pay a domestic worker at least the minimum wage prescribed in this clause. 2) An employer must pay a domestic worker who works more than 27 ordinary hours of work per week - a) at least the weekly or monthly wage set out in Table 1; or b) by agreement between the employer and domestic worker, at least the hourly rate set out in Table 1 for every hour or part of an hour that the domestic worker works. 3) An employer must pay a domestic worker who works 27 or less ordinary hours of work per week - a) at least the weekly or monthly wage set out in Table 2; b) by agreement between the employer and domestic worker, at least the hourly rate set out in Table 2 for every hour or part of an hour that the domestic worker works. 4) A domestic worker who works for less than four hours on any day must be paid for four hours' work on that day. Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 3. Annual Wage Increases (See annex) Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 4. Calculation of Wages 1) The wage of a domestic worker must be calculated by reference to the domestic worker's ordinary hours of work. 2) For the purposes of any calculation in terms of this determination - a) the hourly wage of a domestic worker is obtained by - i) dividing the daily wage by the number of ordinary hours worked in a day; or ii) dividing the weekly wage by the number of ordinary hours worked in a week. b) the daily wage of a domestic worker is obtained by - i) multiplying the hourly wage by the number of ordinary hours worked in a day; or ii) dividing the weekly wage by the number of ordinary hours worked in a week. c) the weekly wage of a domestic worker is obtained by - i) multiplying the hourly wage by the number of ordinary hours worked in a week; or ii) multiplying the daily wage by the number of days worked in a week; or iii) dividing the monthly wage by four and one-third (13/3). d) the monthly wage of a domestic worker is obtained by multiplying the weekly wage by four and a third (13/3) . Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 5. Payment Of Wages 1) An employer must pay a domestic worker - a) in South African currency; b) daily, weekly, fortnightly or monthly; and c) in cash, by cheque or by direct deposit into an account designated by the domestic worker. 2) Any payment in cash or by cheque must be given to each domestic worker- a) at the workplace; b) during the domestic worker's working hours; and c) in a sealed envelope which becomes the property of the domestic worker. 3) An employer must pay a domestic worker on the normal pay day agreed too by the domestic worker. Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 6. Information Concerning Pay 1) On every pay day, the employer must give the domestic worker a statement showing - a) the employer's name and address; b) the domestic worker's name and occupation; c) the period in respect of which payment is made; d) the domestic worker's wage rate and overtime rate; e) the number of ordinary hours worked by the domestic worker during that period; f) the number of overtime hours worked by the domestic worker during that period; g) the number of hours worked by the domestic worker on a public holiday or on a Sunday; h) the domestic worker's wage; i) details of any other pay arising out of the domestic worker's employment; j) details of any deductions made; and k) the actual amount paid to the domestic worker. 2) An employer must retain a copy or record of each statement for three years. Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 7. Prohibited Acts concerning Pay 1) An employer may not receive any payment directly or indirectly, or withhold any payment from a domestic worker in respect of - a) the employment or training of that domestic worker ; b) the supply of any work equipment or tools ; c) the supply of any work clothing; or d) any food supplied to the domestic worker while the domestic worker is working or is at the workplace. 2) An employer may not require a domestic worker to purchase any goods from the employer or from any person, shop or other business nominated by the employer. 3) An employer may not levy a fine against a domestic worker. 4) An employer may not require or permit a domestic worker to a) repay any pay except for overpayments previously made by the employer resulting from an error in calculating the domestic worker's pay; or b) acknowledge receipt of an amount greater than the pay actually received. Sectoral Determination 7: Domestic Worker Sector, South Africa Part B : Wages 8. Deductions 1) An employer may not make any deduction from a domestic worker's pay except - a) a deduction, calculated on the basis of the domestic worker's wage, proportionate to the length of any period that the domestic worker is absent from work, other than an absence on paid leave or at the instance of the employer; b) deduction of not more than 10% of the wage for a room or other accommodation supplied to the domestic worker by the employer if the accommodation - i) is weatherproof and generally kept in good condition; ii) has at least one window and door, which can be locked; iii) has a toilet and bath or shower, if the domestic worker does not have access to any other bathroom. c) with the written consent of the domestic worker, a deduction of any amount which the employer has paid or has undertaken to pay - i) to any holiday, sick, medical, insurance, savings, provident or pension fund of which the domestic worker is a member, ii) to any registered trade union in respect of subscriptions; iii) to any banking institution, building society, insurance business, registered financing institution or local authority in respect of a payment on a loan granted to the domestic worker to acquire a dwelling; iv) to any person or organisation in respect of the rent of a dwelling or accommodation occupied by the domestic worker; d) a deduction, not exceeding one-tenth of the wage due to the domestic worker on the pay-day concerned, towards the repayment of any amount loaned or advanced to the domestic worker by the employer; or e) a deduction of any amount which an employer is required to make by law or in terms of a court order or arbitration award. Sectoral Determination 7: Domestic Worker Sector, South Africa Part C: Particulars of Employment 9. Written Particulars of Employment 1) An employer must supply a domestic worker, when the domestic worker starts work with the following particulars in writing - a) the full name and address of the employer; b) the name and occupation of the domestic worker, or a brief description of the work for which the domestic worker is employed; c) the place of work, and where the domestic worker is required or permitted to work at various places, an indication of this; d) the date on which the employment began; e) the domestic worker's ordinary hours of work and days of work ; f) the domestic worker's wage or the rate and method of payment ; g) the rate of pay for overtime work; h) any other cash payments that the domestic worker is entitled to; i) any payment in kind that the domestic worker is entitled to and the value of the payment in kind; j) how frequently wages will be paid; k) any deductions to be made from the domestic worker's wages ; l) the leave to which the domestic worker is entitled to; and m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate. 2) If a domestic worker is not able to understand the written particulars, the employer must ensure that they are explained to the domestic worker in a language and in a manner that the domestic worker understands. 3) The employer must revise the written particulars if the employer and domestic worker agree to any change in the domestic worker's terms of employment. 4) The employer must sign the written particulars and any change in the terms of clause (3). 5) The employer may require the domestic worker to - a) acknowledge receipt of the written particulars in writing on a copy of the particulars; or b) if the domestic worker is unable to or refuses to acknowledge receipt, record that the domestic worker has received a copy of the written particulars. 6) An employer must retain a copy of the written particulars while the domestic worker is employed and for three years thereafter . Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 10. Ordinary Hours of Work 1) An employer may not require or permit a domestic worker to work more than - a) 45 hours in any week; and b) nine hours on any day if the domestic worker works for five days or less in a week; or c) eight hours in any day if the domestic worker works on more than five days in any week Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 11. Overtime 1) An employer may not require or permit a domestic worker - a) to work overtime except in accordance with an agreement concluded by the employer and the domestic worker; b) to work more than 15 hours' overtime a week; or c) to work more than 12 hours, including overtime, on any day. Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 12. Payment of Overtime 1) An employer must pay a domestic worker at least one and one -half times the domestic worker's wage for overtime worked. Despite sub-clause (1), an agreement may provide for an employer to - a) pay a domestic worker not less than the domestic worker's ordinary wage for overtime worked and grant the domestic worker at least 30 minutes' time off on full pay for every hour of overtime worked; or b) grant a domestic worker at least 90 minutes' paid time off for each hour of overtime worked. 2) An employer must grant paid time off in terms of sub -clause (2) within one month of the domestic worker becoming entitled to it. 3) An agreement in writing may increase the period contemplated by paragraph (a) to twelve months. 4) An agreement concluded in terms of paragraph (b) with a domestic worker when the domestic worker commences employment, or during the first three months of employment, is only valid for one year. Any time worked on a Sundays or public holidays must be paid in accordance with the provisions for Sundays and public holidays in clauses 17 and 18. Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 13. Night Work 1) For the purposes of this clause, "night work" means work performed after 18:00 and before 06:00 the next day. 2) An employer may only require or permit a domestic worker to perform night work, if agreed in writing and if - a) the domestic worker is compensated by the payment of an allowance; and b) the domestic worker resides at the workplace or transport is available between the domestic worker's place of residence and the workplace at the beginning and end of the domestic worker's shift. 3) The amount of the allowance in terms of clause 1(a) must be agreed between the employer and the domestic worker. 4) An employer who requires a domestic worker to perform work for a period of longer than one hour after 22:00 and before 06:00 the next day at least five times per month or 50 times per year must comply with sections 17(3) and (4) of the Basic Conditions of Employment Act. Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 14. Standby 1) For the purposes of this clause, 'standby' means any period between 20:00 and 06:00 the next day when a domestic worker is required to be at the workplace and is permitted to rest or sleep but must be available to work if necessary. 2) An employer may only require or permit a domestic worker to be on stand by if it is agreed in writing and if the domestic worker is compensated by the payment of an allowance of at least R20,00 per shift. 3) An employer may not require or permit a domestic worker to be on stand by more than five times per month or 50 times per year. 4) An employer may only require or permit a domestic worker to perform work which is required to be done without delay. 5) An employer must pay a domestic worker for any time worked in excess of three hours during any period of stand -by at - a) the domestic worker's overtime rate calculated in terms of clause 12(1); or b) grant the domestic worker paid time-off in terms of clauses 12(2) and (3). Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 15. Meal Intervals 1) An employer must give a domestic worker who works continuously for more than five hours a meal interval of at least one continuous hour. 2) During a meal interval, a domestic worker may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another domestic worker 3) A domestic worker must be paid - a) for a meal interval in which the domestic worker is required to be available for work; b) for any portion of a meal interval that is in excess of 75 minutes, unless the domestic worker lives at the workplace. 4) For the purpose of sub-clause (1), work is continuous unless it is interrupted by a meal interval in accordance with this clause. 5) An agreement in writing may - a) reduce the meal interval to not less than 30 minutes; b) dispense with a meal interval for a domestic worker who works fewer than six hours on a day. 6) Whenever an employer is required to give a domestic worker a second meal interval because of overtime worked, that interval may be reduced to not less than 15 minutes. Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 16. Rest Period 1) An employer must grant a domestic worker - a) a daily rest period of at least twelve consecutive hours between ending work and starting work the next day ; b) weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include a Sunday. 2) A daily rest period in terms of sub-clause (1)(a) may, by written agreement, be reduced to 10 hours for a domestic worker - a) who lives at the workplace is situated; and b) whose meal interval lasts for at least three hours. 3) Despite sub-clause (l)(b), an agreement in writing may provide for a rest period of at least 60 consecutive hours every second week. Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 17. Payment for work on Sunday 1) An employer must pay a domestic worker who works on a Sunday - a) at double the domestic worker's wage for each hour worked; or b) if the work is part of the domestic worker's ordinary hours of work, at one and one half times the domestic worker's wage for each hour worked. 2) If the payment calculated in terms of sub-clause (1) is less than the domestic worker's daily wage, the employer must pay the domestic worker, for the time worked on that Sunday, the domestic worker's daily wage. 3) Despite sub-clauses (1) and (2), an agreement may permit an employer to grant a domestic worker who works on a Sunday paid time off equivalent to the difference in value between the pay received by the domestic worker for working on a Sunday and the pay the domestic worker is entitled to receive in terms of sub-clauses (1) and (2) at double the domestic worker's wage for each hour worked. 4) a) A domestic worker must grant paid time off in terms of sub-clause (3) within one month of the domestic worker becoming entitled to it. b) An agreement in writing may increase the period contemplated by paragraph (a) for 12 months. 5) Any time worked on a Sunday by domestic worker who does not normally work on a Sunday is not taken into account in calculating a domestic worker's ordinary hours of work in terms of clause 10, but is taken into account in calculating the overtime worked by the domestic worker in terms of clause 11 (1)(b). 6) If a shift worked by a domestic worker falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. Sectoral Determination 7: Domestic Worker Sector, South Africa Part D : Hours of Work 18. Public Holidays 1) An employer may not require a domestic worker to work on a public holiday, except in accordance with an agreement. 2) If a public holiday falls on a day on which a domestic worker would otherwise have worked, an employer must pay a domestic worker - a) who does not work on the public holiday the domestic worker's daily wage; b) who does work on the public holiday at least double the daily wage. 3) If a domestic worker who works on a public holiday on which the domestic worker would not normally work, the employer must pay that domestic worker an amount equal to- a) the domestic worker's daily wage; plus b) the domestic worker's hourly wage for each hour worked on the public holiday. 4) An employer must pay a domestic worker for a public holiday on the domestic worker's normal payday. 5) If a shift worked by a domestic worker falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Sectoral Determination 7: Domestic Worker Sector, South Africa Part E : Leave 19. Annual Leave 1) An employer must grant a domestic worker - a) at least three weeks annual leave on full pay in respect of each 12 months of employment (the 'annual leave cycle') ; b) by agreement, at least one day of annual leave on full pay for every 17 days on which the domestic worker worked or was entitled to be paid; or c) by agreement, one hour of annual leave on full pay for every 17 hours on which the domestic worker worked or was entitled to be paid. 2) An employer must grant a domestic worker an additional day of paid leave if a public holiday falls on a day during a domestic worker's annual leave on which the domestic worker would otherwise have worked . 3) An employer may reduce a domestic worker's entitlement to annual leave by the number of days of occasional leave on full pay granted to the domestic worker at the domestic worker's request in that annual leave cycle. 4) An employer must grant - a) at least three weeks annual leave on full pay in respect of each 12 months of employment (the 'annual leave cycle') not later than six months after the end of the annual leave cycle or the year in which the leave was earned; b) the leave earned in one year over a continuous period, if requested by the domestic worker. 5) Annual leave must be taken - a) in accordance with an agreement between the employer and employee; or b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section. 6) An employer may not require or permit an employee to take annual leave during - a) any other period of leave to which the employee is entitled in terms of this Chapter; or b) any period of notice of termination of employment. 7) An employer may not require or permit a domestic worker to work for the employer during any period of annual leave. 8) An employer may not pay a domestic worker instead of granting paid leave in terms of the clause except on termination of employment in terms of clause 25. 9) An employer must pay a domestic worker leave pay at least equivalent to the full pay the domestic worker would receive for working for a period equal to the period of leave calculated on the basis of the domestic worker's rate of pay immediately before the period of leave. 10) Leave pay in terms of clause (9) must be calculated on the basis of the domestic worker's rate of pay immediately before the period of leave . 11) An employer must pay a domestic worker leave pay before the beginning of the period of leave. Sectoral Determination 7: Domestic Worker Sector, South Africa Part E : Leave 20. Sick Leave 1) For purposes of this clause "sick leave cycle" means the period of 36 months employment with the same employer immediately following - a) when the domestic worker commenced work; or b) the end of the domestic worker's prior sick leave cycle. 2) During every sick leave cycle, a domestic worker is entitled to an amount of paid sick leave equal to the number of days the domestic worker-would normally work during a period of six weeks. 3) Despite sub-clause (2) during the first six months of work, a domestic worker is entitled to one day's sick leave for every 26 days worked. 4) An employer may, during the domestic worker's first leave cycle, reduce the domestic worker's entitlement to sick leave in terms of sub-clause (2) by the number of days' sick leave taken in terms of sub-clause (3). 5) Where an employer, at the request of the domestic worker, pays fees for a domestic worker's hospital or medical treatment, the fees paid may be set off against the worker's pay. 6) An employer may require a domestic worker who has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period to produce a medical certificate before paying the domestic worker in terms of this clause. 7) The medical certificate in terms of sub-clause (6) must - a) be issued and signed by a medical practitioner, a traditional healer, a professional nurse who is authorised to issue certificates, or any other person who is certified to diagnose and treat patients and is registered with a professional council, established by an Act of Parliament; and b) state that the domestic worker was unable to work for the duration of the domestic worker's incapacity. 8) If it is not reasonably practicable for a domestic worker who lives on the employer's premises to obtain a medical certificate, the employer may not withhold payment in terms of this clause unless the employer provides reasonable assistance to the domestic worker to obtain the certificate. Sectoral Determination 7: Domestic Worker Sector, South Africa Part E : Leave 21. Family Responsibility Leave 1) This clause applies to a domestic worker - a) who has been employed by an employer for longer than four months; and b) who works on at least four days a week for that employer . 2) An employer must grant a domestic worker, during each 12 months of employment, at the request of the domestic worker, five days' leave , which the domestic worker is entitled to take - a) when the domestic worker's child is born; b) when the domestic worker's child is sick; or c) in the event of the death of - i) the domestic worker's spouse or life partner; or ii) the domestic worker's parent, adoptive parent, grandparent, child, adopted child, grandchildren or sibling. 3) A domestic worker may take family responsibility leave in respect of the whole or part of the day. 4) Subject to sub-clause (5), an employer must pay a domestic worker for a day's family responsibility leave - a) the wage the domestic worker would normally have received for work on that day; and b) on the domestic worker's usual payday. 5) Before paying a domestic worker for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in sub-clause (2) for which the leave was required. 6) A domestic worker's unused entitlement to leave in terms of this clause lapse at the end of the annual leave cycle in which it accrues. Sectoral Determination 7: Domestic Worker Sector, South Africa Part E : Leave 22. Maternity Leave 1) A domestic worker is entitled to at least four consecutive months' maternity leave. 2) A domestic worker may commence maternity leave - a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the domestic worker's health or that of her unborn child. 3) A domestic worker may not work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) A domestic worker who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the domestic worker had commenced maternity leave at the time of the miscarriage or stillbirth. 5) A domestic worker must notify an employer in writing, unless the domestic worker is unable to do so, of the date on which the domestic worker intends to - a) commence maternity leave; and 'In terms of section 187(1)(e) of the Labour Relations Act, 1995, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract. With effect from 1 April 2003, domestic workers will be covered by the Unemployment Insurance Act, 2001 and will be entitled to claim maternity benefits in terms of that Act. b) return to work after maternity leave. 6) Notification in terms of sub-clause (5) must be given - a) at least four weeks before the domestic worker intends to commence maternity leave; b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) No employer may require or permit a pregnant domestic worker or a domestic worker who is nursing her child to perform work that is hazardous to her health or the health of her child. Sectoral Determination 7: Domestic Worker Sector, South Africa Part F : Prohibition of Child labour and forced labour 23. Prohibition of Child labour and forced labour 1) No person may employ as a domestic worker a child- a) who is under 15 years of age; or b) who is under the minimum school leaving age in terms of any law, if this is 15 or older. 2) No person may employ a child in an employment- a) that is inappropriate for a person of that age; b) that places at risk the child's well being, education, physical or mental health, or spiritual, moral or social development. 3) An employer must maintain for three years a record of the name, date of birth and address of every domestic worker under the age of 18 years employed by them. 4) Subject to the Constitution of the Republic of South Africa, all forced labour is prohibited. Section 31(1) of the South African Schools Act, 1996 (Act 84 of 1996), requires every parent to cause every learner for whom he or she is responsible to attend a school until the last school day of the year in which the learner reaches the age of 15 or the ninth grade, whichever is the first. This applies to children under 18 years of age. 5) No person may, for their own benefit or for the benefit of someone else cause, demand or impose forced labour in contravention of sub -clause (4). 6) A person who employs a child in contravention of sub -clause (1) and (2) or engages in any form of forced labour in contravention of sub -clauses (4) and (5) commits an offence in terms of sections 46 and 48 of the Basic Conditions of Employment Act respectively, read with section 93 of that Act. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 24. Termination Of Employment 1) A contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than - a) one week, if the domestic worker has been employed for six months or less; b) four weeks, if the domestic worker has been employed for more than six months. 2) The employer and domestic worker may agree to a longer notice period but the agreement may not require or permit a domestic worker to give a period of notice longer than that required of the employer. 3) a) Notice of termination of contract of employment must be given in writing except when it is given by an illiterate domestic worker; b) If a domestic worker who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the domestic worker in an official language the domestic worker reasonably understands. 4) Notice of termination of a contract of employment given by an employer must- a) not be given during any period of leave to which the domestic worker is entitled in terms of clause 17(1); b) not run concurrently with any period of leave to which the domestic worker is entitled in terms of this determination, except sick leave. 5) Nothing in this clause affects the right of - a) a dismissed domestic worker to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; and b) an employer or a domestic worker to terminate a contract of employment without notice for any cause recognized by law. 6) Instead of giving a domestic worker notice in terms of this clause, an employer may pay the domestic worker the full pay the domestic worker would have received if the domestic worker had worked during the notice period. 7) If a domestic worker gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the full pay referred to in sub-clause (6), unless the employer and domestic worker agree otherwise. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 25. Payment on Termination 1) On termination of employment, an employer must pay a domestic worker all monies due to the domestic worker for any - a) wages, allowance or other payments that have not been paid ; b) paid time-off that the domestic worker is entitled to in terms of clause 12 or 17 that the domestic worker has not taken ; c) leave in terms of clause 19 that the domestic worker has not taken, irrespective of whether the domestic worker has completed an annual leave cycle or year of service, unless the domestic worker has not been employed longer than four months. 2) For the purposes of clause 25(l)(c), a domestic worker is entitled to be paid in respect of any period for which leave was not granted - i) one week's wages for every four months worked; or ii) one day's wages in respect of every 17 days on which the domestic worker worked or was entitled to be paid. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 26. Accommodation on Termination 1) If the employer of a domestic worker who resides at the workplace or in other accommodation supplied by the employer terminates the contract of employment of that domestic worker before the date on which the employer was entitled to do so in terms this clause, the employer is required to provide the domestic worker with accommodation for a period of one month or if it is a longer period, until the contract of employment could lawfully have been terminated. 2) If a domestic worker elects to remain in accommodation in terms of sub-clause (8) after the employer has terminated the domestic worker's contract of employment in terms of this clause, the employer may deduct for that period 10% of the amount the employer is required to pay in terms of this clause as the value of the accommodation. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 27. Severance Pay 1) For the purposes of this clause, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. 2) An employer must pay domestic worker who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's full pay for each completed year of continuous service with that employer. 3) A domestic worker who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of sub-clause (2). 4) The payment of severance pay in compliance with this clause does not affect a domestic worker's right to any other amount payable according to law. 5) If there is a dispute only about the entitlement to severance pay in terms of this clause, the domestic worker may refer the dispute in writing to the CCMA. Illustrative examples of the employers' 'operational requirements' include if the employer moves to another city or country; if the employer is no longer able to afford a domestic worker; if a child no longer requires a child-minder; if an employer moves to a smaller house and as a result no longer requires a domestic worker. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 28. Certificate of Service 1) On termination of employment, a domestic worker is entitled to a certificate of service stating- a) the domestic worker's full name; b) the name and address of the employer; c) the date of commencement and date of termination of employment; d) the title of the job or brief description of the work for which the domestic worker was employed at the date of termination ; e) any relevant training received by the domestic worker ; f) the pay at date of termination; and g) if the domestic worker requests, the reason for termination of employment. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 29. Employment Services 1) A domestic worker whose services have been provided by an employment service is employed by that employment service for the purposes of this determination if the employment service pays the domestic worker . 2) An employment service contemplated in sub-clause (1) and the client are jointly and severally liable if the employment service, in respect of a domestic worker who provides services to that client, does not comply with the determination or any provision of the Basic Conditions of Employment Act. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 30. Keeping of Sectoral Determination Every employer on whom this sectoral determination is binding must keep a copy of the sectoral determination or an official summary available in the workplace in a place to which the domestic worker has access. Sectoral Determination 7: Domestic Worker Sector, South Africa Part G : Termination of Employment 31. Definitions Any expression in this determination, which is defined in the Basic Conditions of Employment Act and is not defined in this clause, has the same meaning as in that Act and - "agreement" includes a collective agreement; "Basic Conditions of Employment Act" means Basic Conditions of Employment Act, 1997 (Act 75 of 1997); "child" means a person who is under 18 years of age; "day" means, for the purposes of measuring hours of work, a period of 24 hours measured from the time when the domestic worker normally commences work; "dispute" includes an alleged dispute; "domestic worker" means any domestic worker or independent contractor who performs domestic work in a private household and who receives, or is entitled to receive, pay and includes - a a gardener; b a person employed by a house hold as a driver of a motor vehicle; and c a person who takes care of children, the aged, the sick, the frail or the disabled; d domestic workers employed or supplied by employment services. "employment service" means any person who recruits, procures or provides domestic workers for clients in return for payment, regardless of which party pays the domestic worker; "full pay" means wages, overtime pay, allowances and any other payment in money that a domestic worker is entitled to in consequence of their employment; "incapacity" means inability to work owing to sickness or injury; "night work" means work performed after 18:00 and before 06:00 the next day; "ordinary hours of work" means the hours of work permitted in terms of clause "overtime" means the time that the domestic worker works during a day or in a week in excess of ordinary hours of work; "paid leave" means any annual leave, paid sick leave or family responsibility leave that a domestic worker is entitled to in terms of Part E of this determination; "public holiday" means any day that is a public holiday in terms of the Public Holiday Act, 1994 (Act No. 36 of 1994); "wage" means the amount of money paid or payable to a domestic worker in respect of ordinary hours of work or, if they are shorter, the hours a domestic worker normally works in a day or week; "week" in relation to a domestic worker, means the period of seven days within which the working week of that domestic worker normally falls ; "workplace" means any place where domestic workers work. Sectoral Determination 7: Domestic Worker Sector, South Africa Guidelines on Written Particulars of Employment 1. Notice period and termination of employment In terms of the Sectoral Determination, any party to an employment contract must give written notice, except when an illiterate domestic worker gives it, as follows : ? One week, if employed for six months or less ? Four weeks if employed for more than six months. Notice must be explained orally by or on behalf of the employer to a domestic worker if he/she is not able to understand it. The employer is required to provide the domestic worker who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer, with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated. All monies due to the domestic worker for any wages, allowance or other payments that have not been paid, paid time-off not taken and pro-rata leave must be paid. Sectoral Determination 7: Domestic Worker Sector, South Africa Guidelines on Written Particulars of Employment 2. Procedure for termination of employment Whilst the contract of employment makes provision for termination of employment, it must be understood that the services of an employee may not be terminated unless a valid and fair reason exists and fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee may approach the CCMA for assistance. Pro-rata leave and severance pay might be payable . In the event of a domestic worker being unable to return to work due to disability, the employer must investigate the nature of the disability and ascertain whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible for example, amending or adapting their duties to suit the disability . However, in the event of it not being possible for the employer to adapt the domestic workers duties and/or to find alternatives, then such employer may terminate the services of the domestic worker. These guidelines are not meant to be a complete summary of the Sectoral Determination and/or legal advice. Should there be any doubt as to rights and/or obligations in terms of this determination or written particulars of employment, such queries can be directed to the local office of the Department of Labour, who will gladly assist. The Labour Relations Act, 66 of 1995 sets out the procedures to be followed at the termination of services in the Code of Good Practice, in Schedule 8. Sectoral Determination 7: Domestic Worker Sector, South Africa Guidelines on Written Particulars of Employment 3. Wage/Remuneration/Payment There is a prescribed minimum rate of remuneration. Additional payments (such as for overtime or work on Sundays or Public Holidays) are calculated from the total remuneration as indicated in clause 5.3 of the contract. The total remuneration is the total of the money received by the employee and the payment in kind, which may not be more than 10% of the wage for accommodation. Sectoral Determination 7: Domestic Worker Sector, South Africa Guidelines on Written Particulars of Employment 4. Transport allowances, bonuses, increases Sectoral Determination 7: Domestic Sector, South Africa does not regulate these and are therefore open to negotiation between the parties . Sectoral Determination 7: Domestic Worker Sector, South Africa Guidelines on Written Particulars of Employment 5. Hours of work 1) Normal hours (excluding overtime) A domestic worker may not be made to : ? work more than 45 hours a week; ? work more than nine hours per day for a five day work week ; ? work more than eight hours a day for a six day work week; and 2) Overtime A domestic worker may not work more than 15 hours overtime per week but may not work more than 12 hours on any day, including overtime. Overtime must be paid at 1.5 times the employee's normal wage or an employee may agree to receive paid time off. 3) Daily and weekly rest periods A daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed, must be allowed. The daily rest period may by agreement be reduced to 10 hours for an employee who live on the premises whose meal interval lasts for at least three hours. The weekly rest period may by agreement be extended to 60 consecutive hours every two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently. 4) Standby Standby means any period between 20:00 and 06:00 the next day when a domestic worker is required to be at the workplace and is permitted to rest or sleep but must be available to work if necessary. May only done if it is agreed in writing and on not more than five times per month must be compensated by the payment of an allowance of at least R20,00 per shift. 5) Night work- after 18:00 and before 06:00 Worked only if agreed to in writing and must be compensated by an allowance and if the domestic resides at the workplace or transport is available. 6) Meal intervals A domestic worker is entitled to a one-hour break for a meal after not more than five hours work. Such interval may be reduced to 30 minutes, by agreement between the parties. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If required or permitted to work during this period, remuneration must be paid. 7) Sunday work Work on Sundays is voluntary and a domestic worker can therefore not be forced to work on a Sunday. If the employee works on a Sunday he/she shall be paid double the daily wage. If the employee ordinarily works on a Sunday he/she shall be paid one and one -half time the wage for every hour worked. Paid time off in return for working on a Sunday may be agreed upon. 8) Public Holidays The days mentioned in the Public Holidays Act must be granted but the parties can agree to further public holidays. Work on a public holiday is entirely voluntary and a domestic worker may not be forced to work on such public holiday. The official public holidays are : New Years Day Human Rights Day Good Friday Family Day Freedom Day Workers Day Youth Day National Woman's Day Heritage Day Day of Reconciliation Christmas Day Day of Goodwill Any other day declared an official public holiday from time to time should also be granted. These days can be exchanged for any other day by agreement. If the employee works on a public holiday he/she shall be paid double the normal days wage. 9) Annual Leave Annual leave may not be less than three weeks per year for full -time workers or by agreement, one day for every 17 days worked or one hour for every 17 hours worked. The leave must be granted not later than six months after completion of the period of 12 consecutive months of employment. The leave may not be granted concurrent with any period of sick leave, nor with a period of notice of termination of the contract of employment. 10) Sick leave During every sick leave cycle of 36 months an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. During the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. The employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury. 11) Maternity leave The employee is entitled to at least four consecutive months' maternity leave. The employer is not obliged to pay the domestic worker for the period for which she is off work due to her pregnancy. However the parties may agree that the domestic worker will receive part of or her entire salary/wage for the time that she is off due to pregnancy. 12) Family responsibility leave Employees employed for longer than four months and for at least four days a week are entitled to take five days' paid family responsibility leave during each leave cycle when the employee's child is born, or when the employee's child is sick or in the event of the death of the employee's spouse or life partner or parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 13) Deduction from the remuneration The Sectoral Determination prohibits an employer from deducting any monies from the workers wages without his/her written permission. A deduction of not more than 10% of the wage may be deducted for a room or other accommodation provided it is kept in a good condition has at least one window and a door, which can be locked, and he/she has access to a bathroom. 14) Other issues There are certain other issues which are not regulated by the Sectoral Determination such as probationary periods, right of entry to the employers premises, afternoons off, weekends off and pension schemes, medical aid schemes, training/school fees, funeral benefits and savings account, however the aforementioned may be negotiated between the parties and included in the contract of employment. 15) Prohibition of Employment The Sectoral Determination prohibits employment of any person under the age of 15 and it is therefore important for an employer to verify the age of the domestic worker by requesting a copy of the identity document or birth certificate. 16) Other conditions of employment There is no provision, which prevents any other conditions of employment being included in a contract of employment but any provision, which sets conditions, which are less favourable than those set by the Determination, would be invalid. Sectoral Determination 7: Domestic Worker Sector, South Africa Written Particulars of Employment (Domestic Worker) (see annex) Sectoral Determination 8: Farm Worker Sector, South Africa Notice No. R. 1499 I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby in terms of section 50 of the Basic Conditions of Employment Act, 1997, make a Sectoral Determination establishing condition of employment and wages for employers and employees in the Farm worker sector, South Africa, in the schedule hereto and determine the second Monday after the date of publication of this notice as the date from which the provisions of the said Sectoral Determination shall become binding. MMS MDLADLANA, MP MINISTER OF LABOUR Sectoral Determination 8: Farm Worker Sector, South Africa Part A: Application 1. Scope of Application 1) The determination applies to the employment of farm workers in all farming activities in the Republic of South Africa. 2) Without limiting its meaning, 'farming activities' includes primary and secondary agriculture, mixed farming, horticulture, aqua farming and the farming of animal products or field crops. 3) For the purposes of this determination, a farm worker includes - a) a domestic worker employed in a home on a farm; b) a security guard employed to guard a farm or other premises where farming activities are conducted, who is not employed in the private security industry. 4) Subject to clause (3), this determination does not apply to any person employed in activities covered by another sectoral determination or by a bargaining council agreement in terms of the Labour Relations Act, 1995. 5) The provisions of the Basic Conditions of Employment Act apply to all farm workers covered by this determination and their employers in respect of any matter that is not regulated by this sectoral determination. Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 2. Minimum Wage Levels 1) With effect from 1 March 2003 an employer must pay a farm worker at least the minimum wage prescribed in this clause. 2) An employer must pay a farm worker - a) who works more than 27 ordinary hours of work per week at least the monthly wage set out in Table 1; b) who works 27 or less ordinary hours of work per week at least the hourly rate as set out in Table 1; Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 3. Minimum Wages for Farm Workers under 18 Years of Age 1) An employer must pay a farm worker who is 15 years of age or older, but less than 18 and who works for more than 35 hours per week or less at least the hourly rate or remuneration, specified in Table 1. Table 1 Minimum wages for farm workers AREA A Bergrivier Local Municipality, Breede Valley Local Municipality, Buffalo City Local Municipality, Cape Agulhas Local Municipality, Cederberg Local Municipality, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane Metropolitan Municipality, Drakenstein Local Municipality, Ekurhuleni Metropolitan Municipality, Emalahleni Local Municipality, Emfuleni Local Municipality, Ethekwini Metropolitan Unicity, Gamagara Local Municipality, George Local Municipality, Hibiscus Coast Local Municipality, Karoo Hoogland Local Municipality, Kgatelopele Local Municipality, Khara Hais Local Municipality, Knysna Local Municipality, Kungwini Local Municipality, Kouga Local Municipality, Langeberg Local Municipality, Lesedi Local Municipality, Makana Local Municipality, Mangaung Local Municipality, Matzikama Local Municipality, Metsimaholo Local Municipality, Middelburg Local Municipality, Midvaal Local Municipality, Mngeni Local Municipality, Mogale Local Municipality, Mosselbaai Local Municipality, Msunduzi Local Municipality, Mtubatuba Local Municipality, Nama Khoi Local Municipality, Nelson Mandela, Nokeng tsa Taemane Local Municipality, Oudtshoorn Local Municipality, Overstrand Local Municipality, Plettenbergbaai Local Municipality, Potchefstroom Local Municipality, Randfontein Local Municipality, Richtersveld Local Municipality, Saldanha Bay Local Municipality, Sol Plaatjie Local Municipality, Stellenbosch Local Municipality, Swartland Local Municipality, Swellendam Local Municipality, Theewaterskloof Local Municipality, Umdoni Local Municipality, uMhlathuze Local Municipality and Witzenberg Local Municipality. Minimum rate for the period 1 March 2003 to 29 February 2004 Minimum rate for the period 1 March 2004 to 28 February 2005 Minimum rate for the period 1 March 2005 to 28 February 2006 Hourly rate R4.10 Hourly rate 4.47 Hourly rate 4.87 Monthly rate R800 Monthly rate 871.58 Monthly rate 949.58 Area B Minimum rate for the period 1 March 2003 to 29 February 2004 Minimum rate for the period 1 March 2004 to 28 February 2005 Minimum rate for the period 1 March 2005 to 28 February 2006 Hourly rate R3.33 Hourly rate 3.66 Hourly rate 4.03 Monthly rate R650 Monthly rate 713.65 Monthly rate 785.79 Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 4. Calculation of Wages or Remuneration 1) The wage or remuneration of a farm worker is calculated by reference to the farm worker's ordinary hours of work. 2) For the purposes of any calculation in terms of this determination - a) the hourly wage or remuneration of a farm worker is obtained by - i) dividing the weekly wage or remuneration by the ordinary number of hours worked in a week; b) the daily wage or remuneration of a farm worker is obtained by- i) multiplying the hourly wage or remuneration by the number of ordinary hours worked in a day; or ii) dividing the weekly wage or remuneration by the number of days worked in a week. c) the weekly wage or remuneration of a farm worker is obtained by - i) multiplying the hourly wage or remuneration by the number of ordinary hours worked in a day multiplied by the number of days worked in a week; or ii) multiplying the daily wage or remuneration by the number of days worked in a week; or iii) dividing the monthly wage or remuneration by four and one-third (13/3) d) the monthly wage or remuneration of a farm worker is obtained by multiplying the weekly wage or remuneration by four and a third (13/3) Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 5. Payment of Remuneration 1) An employer must pay a farm worker - a) in South African currency; b) daily, weekly, fortnightly or monthly; and c) in cash, by cheque or by direct deposit into an account designated by the farm worker. 2) Any payment in cash or by cheque must be given to each farm worker- a) at the workplace; b) during the farm worker's working hours; and c) in a sealed envelope which becomes the property of the farm worker. 3) An employer must pay a farm worker on the normal payday agreed to in writing by the farm worker. Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 6. Information Concering Pay 1) On every pay day, the employer must give the farm worker a statement showing - a) the employer's name and address; b) the farm worker's name and occupation; c) the period in respect of which payment is made; d) the farm worker's wage rate and overtime rate; e) the number of ordinary hours worked by a farm worker during that period; f) the number of overtime hours worked by the farm worker during that period; g) the number of hours worked by the farm worker on a paid holiday or on a Sunday; h) the farm worker's wage; i) details of any other pay arising out of the farm worker's employment; j) details of any deductions made; k) the employer's registration number with the Unemployment Insurance Fund and the employer's contribution to the Fund; and l) the actual amount paid to the farm worker. 2) An employer must retain a copy or record of each statement for three years. Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 7. Prohibited Acts Concerning Pay 1) An employer may not withhold any payment from a farm worker or require a farm worker to pay the farmer or any other person in respect of - a) the employment or training of that farm worker; b) the supply of any work equipment or tools; or c) the supply of any work clothing. (An employer may not make any deduction from remuneration or require or permit a farm worker to make any payment to the employer or any other person in respect of anything that the employer is required to do in the interests of the health and safety of a farm worker (section 23 of the Occupational Health and Safety Act, 85 of 1993.) 2) An employer may not require a farm worker to purchase any goods from the employer or from any person, shop or other business nominated by the employer. 3) An employer may not levy a fine against a farm worker. 4) An employer may not require or permit a farm worker to - a) repay any amount paid except for overpayments previously made by the employer resulting from an error in calculating the farm worker's pay; or b) acknowledge receipt of an amount greater than the pay actually received. Sectoral Determination 8: Farm Worker Sector, South Africa Part B: Minimum Wages 8. Deductions 1) An employer may not make any deduction from a farm worker's pay except - a) a deduction not exceeding 10 percent of the farm worker's wage made in accordance with sub-clauses (2) and (3) for accommodation in which the farm worker ordinarily resides; b) a deduction not exceeding 10 percent of the farm worker's wages made in accordance with sub-clause (2) for food supplied to the farm worker; c) at the written request of a farm worker, a deduction of an amount which the employer has paid or undertaken to pay to a third party contemplated by sub-clause (7); d) a deduction, not exceeding one-tenth of the wage due to the farm worker on the pay-day concerned, towards the repayment of any amount loaned or advanced to the farm worker by the employer; e) a deduction of any amount which the employer is required to make by law or in terms of a court order or arbitration award. 2) An employer may only make a deduction in respect of accommodation or food in terms of sub-clause 1(a) or (b) respectively if - a) the food or accommodation is provided free of charge by the employer to the farm worker at the employer's cost; b) the food or accommodation is provided on a consistent and regular basis as a condition of employment; c) no additional deduction is made from the farm worker's remuneration for food or accommodation; d) in the case of accommodation, no deduction is made by the employer for electricity, water or other services; and e) the deduction does not exceed the cost to the employer of supplying food or accommodation, as the case may be. 3) A deduction in terms of sub-clause 1(a) may only be made for a house that meets the following requirements: a) the house has a roof that is durable and waterproof ; b) the house has glass windows that can be opened; c) electricity is available inside the house; d) water is available on tap inside the house; e) a flush toilet or pit latrine is available in, or in close proximity to, the house; and f) the house is not less than 30 square meters in size. 4) An employer may not make any deduction for accommodation in terms of sub-clause (1)(a) in respect of a farm worker who is under 18 years of age. 5) An employer may only make a deduction in terms of sub clause 1(a) in respect of one farm worker residing in any house. 6) a) Subject to sub clause (1)(a) where more than two farm workers reside in communal accommodation, the maximum deduction that the employer may make in total in respect of all the farm workers who reside in that accommodation is 25% of the applicable minimum wage payable to an individual farm worker. (If the applicable minimum wage is R600 per month, the maximum deduction that may be made in total from the workers living in communal accommodation as a whole is R150 per month. The deduction may be made form an individual farm worker may not exceed 10% of that workers wage.) b) An equal amount must be deducted in respect of each of the farm workers residing in accommodation contemplated by paragraph (a). 7) A deduction may only be made in respect of clause 8(1)(c) in respect of a payment made or to be made to - a) any holiday, sick, medical, insurance, savings, provident fund or pension fund of which the farm worker is a member, b) any registered trade union in respect of subscriptions; c) any bank, building society, insurance business, registered financing institution, local authority in respect of a payment on a loan granted to the farm worker to acquire a dwelling; d) the owner or agent in respect of the rent of a dwelling or accommodation occupied by the farm worker. Sectoral Determination 8: Farm Worker Sector, South Africa Part C: Particulars of Employment 9. Written Particulars of Employment 1) An employer must supply a farm worker, when the farm worker starts work with the following particulars in writing- a) the full name and address of the employer; b) the name and occupation of the farm worker, or a brief description of the work for which the farm worker is employed; c) the place of work, and where the farm worker is required or permitted to work at various places, an indication of this; d) the date on which employment began; e) the farm worker's ordinary hours of work and days of work; f) the farm worker's wage or the rate and method of payment; g) the rate of pay for overtime work; h) any other cash payments that the farm worker is entitled to; i) any food or accommodation payment that the farm worker is entitled to and the value of the food or accommodation calculated in accordance with clause (8); j) any other payment in kind received by the employer; k) how frequently wages will be paid; l) any deductions to be made from the farm worker's wages; m) the leave to which the farm worker is entitled to; n) the period of notice required to terminate employment, or if employment is for a specific period, the date when employment is to terminate. 2) If a farm worker is not able to understand the written particulars, the employer must ensure that they are explained to the farm worker in a language and in a manner that the farm worker understands. 3) The employer must revise the written particulars if there is any change in the farm worker's terms of employment. 4) An employer must retain a copy of the written particulars while the farm worker is employed and for three years thereafter. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 10. Emergency Work 1) Clauses 11, 13(1), 16(2), 17(1), 18(1) and 19(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by farm workers during their ordinary hours of work. (Where an 'emergency' situation such as a veld-fire or the outbreak of a disease among livestock persists, it will be reasonable to expect the employer to rotate work or to obtain additional temporary workers to assist to deal with the emergency) 2) Sub-clause (2) does not affect the obligation of an employer to pay a farm worker for any work performed at the farm worker's ordinary rate of pay or overtime rate, as the case may be. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 11. Ordinary Hours of Work 1) An employer may not require or permit a farm worker to work more than - a) 45 hours in any week; and (A farm worker who is under 18 years of age may not work more than 35 hours in any week.) b) nine hours on any day if the farm worker works for five days or less in a week; or c) eight hours in any day if the farm worker works for more than five days in any week. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 12. Extension of Ordinary Hours of Work for Farm Workers 1) A worker and an employer may conclude a written agreement in terms of which the farm worker's ordinary hours of work- a) are extended by not more than five hours per week for a period of not more than four months in any continuous period of twelve months; and b) are reduced by the same number of hours during a period of the same duration in the same twelve month period. 2) An agreement in terms of sub-clause (1) may not extend the farm worker's ordinary hours of work to more than ten hours on any day. 3) During any period of extended or reduced ordinary hours of work in terms of sub-clause (1), the employer must pay the farm worker the wage the farm worker would have received for the farm worker's normal ordinary hours of work. 4) If a farm worker's employment terminates for any reason at a time when the farm worker has worked a great number of extended ordinary hours than reduced ordinary hours, the employer must pay the worker for the extended ordinary hours worked at the overtime rate in terms of clause (13). 5) An employer who concludes a contract in terms of this clause must- a) supply the farm worker with a copy of the contract; b) record any extended or reduced hours work in terms of the contract on the statement supplied to the worker in terms of clause 6. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 13. Overtime 1) An employer may not require or permit a farm worker- a) to work overtime except in accordance with an agreement concluded by the employer and the farm worker; b) to work more than 15 hours' overtime a week; or c) to work more than 12 hours, including overtime, on any day. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 14. Payment of Overtime 1) An employer must pay a farm worker at least one and one-half times the farm worker's wage for overtime worked. 2) Despite sub-clause (1), an agreement may provide for an employer to - a) pay a farm worker not less than the farm worker's ordinary wage for overtime worked and grant the farm worker at least 30 minutes' time off on full pay for every hour of overtime worked; or b) grant a farm worker at least 90 minutes' paid time off for each hour of overtime worked. 3) a) An employer must grant paid time off in terms of sub-clause (2) within one month of the farm worker becoming entitled to it. b) An agreement in writing may increase the period contemplated by paragraph (a) to twelve months. c) An agreement concluded in terms of paragraph (b) with a farm worker when the farm worker commences employment, or during the first three months of employment, is only valid for one year. 4) Any overtime worked on a Sunday or public holiday must be paid in accordance with the provisions for Sundays and public holidays in clauses 17 and 18. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 15. Compressed Working Week 1) An agreement in writing may require or permit a farm worker to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 14, without receiving overtime pay. 2) An agreement in terms of sub-clause (1) may not require or permit an farm worker to work - a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 15. Compressed Working Week 1) An agreement in writing may require or permit a farm worker to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 14, without receiving overtime pay. 2) An agreement in terms of sub-clause (1) may not require or permit an farm worker to work - a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 16. Work On Sundays 1) An employer must pay a farm worker who works on a Sunday in accordance with the following table: Time worked on a Sunday Payment One hour or less Double the wage for one hour More than one hour but not more than two hours Double the ordinary wage for time worked More than two hours but not more than five hours The ordinary daily wage. More than five hours The greater of double the wage payable in respect of time worked (excluding overtime) or double the ordinary daily wage. 2) For the purposes of sub-clause (1), a farm worker who does not reside on the employer's farm who works on a Sunday must be regarded as having worked at least two hours on that day. 3) Any time worked on a Sunday by a farm worker is not taken into account in calculating a farm worker's ordinary hours of work in terms of clause 10, but is taken into account in calculating the overtime worked by the farm worker in terms of clause 12. 4) If a shift worked by a farm worker falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 17. Night Work 1) In section, "night work" means work performed after 20:00 and before 04:00 the next day. 2) An employer may only require or permit a farm worker to perform night work, if so agreed, and if - a) the employer pays the farm worker an allowance of at least 10% of the farm worker's ordinary daily wage; and b) transportation is available between the farm worker's place of residence and the workplace at the commencement and conclusion of the farm worker's shift. 3) An employer who requires a farm worker to perform work on a regular basis after 20:00 and before 04:00 the next day must - a) inform the farm worker in writing, or orally if the farm worker is not able to understand a written communication, in a language that the farm worker understands- i) of any health and safety hazards associated with the work that the farm worker is required to perform: and ii) of the farm worker's rights to undergo a medical examination in terms of paragraph (b). b) at the request of the farm worker, enable the farm worker to undergo a medical examination, for the account of the employer, concerning those hazards- i) before the farm worker starts, or within a reasonable period of the farm worker starting, such work; ii) at appropriate interval while the farm worker continues to perform such work; and c) transfer the farm worker to suitable day work within a reasonable time if- i) the farm worker suffers from a health condition associated with the performance of night work; and ii) it is practicable for the employer to do so. 4) Sub-clause (3) applies to farm workers who work after 20:00 and before 04:00 at least five times per month or 50 times per year. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 18. Meal Intervals 1) An employer must give a farm worker who works continuously for more than five hours, a meal interval of at least one continuous hour. 2) During a meal interval, a farm worker may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another farm worker. 3) A farm worker must be paid - a) for a meal interval in which the farm worker is required to be available for work. b) for any portion of a meal interval that is in excess of 75 minutes, unless the farm worker lives on the farm or at the workplace. 4) For the purpose of sub-clause (1), work is continuous unless it is interrupted by a meal interval in accordance with this clause. 5) An agreement in writing may- a) Reduce the meal interval to not less than 30 minutes; b) Dispense with a meal interval for a farm worker who works fewer than six hours on a day. 6) Whenever an employer is required to give a farm worker a second meal interval because of overtime worked, that interval may be reduced to not less than 15 minutes. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 19. Rest Period 1) An employer must grant a farm worker - a) a daily rest period of at least twelve consecutive hours between ending work and starting work the next day; b) weekly rest period of at least thirty-six consecutive hours which, unless otherwise agreed, must include a Sunday. 2) A daily rest period in terms of sub-clause (1)(a) may, by written agreement, be reduced to 10 hours for a farm worker - a) who lives where the workplace is situated; and b) whose meal interval lasts for at least three hours. 3) despite sub-clause (1)(b), an agreement in writing may provide for a rest period of at least sixty consecutive hours every second week. Sectoral Determination 8: Farm Worker Sector, South Africa Part D: Hours of Work 20. Public Holidays 1) An employer may not require a farm worker to work on a public holiday, except in accordance with an agreement. 2) If a public holiday falls on a day on which a farm worker would otherwise have worked, an employer must pay- a) a farm worker who does not work on the public holiday the farm worker's daily wage; b) a farm worker who does work on the public holiday at least double the daily wage. 3) If a farm worker who works on a public holiday on which the farm worker would not normally work, the employer must pay that farm worker an amount equal to - a) the farm worker's daily wage; plus b) the farm worker's hourly wage for each hour worked on the public holiday. 4) An employer must pay a farm worker for a public holiday on the farm worker's normal payday. 5) If a shift worked by a farm worker falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Sectoral Determination 8: Farm Worker Sector, South Africa Part E: Leave 21. Annual Leave 1) An employer must grant a farm worker - a) at least three weeks leave on full pay in respect of each twelve months of employment (the 'annual leave cycle'); b) by agreement, at least one day of annual leave on full pay for every 17 days on which the farm worker worked or was entitled to be paid; or c) by agreement, one hour of annual leave on full pay for every 17 hours on which the farm worker worked or was entitled to be paid. 2) An employer must grant a farm worker an additional day of paid leave if a public holiday falls on a day during a farm worker's annual leave on which the farm worker would otherwise have worked. 3) An employer may reduce a farm worker's entitlement to annual leave by the number of days of occasional on full pay granted to the farm worker at the farm worker's request in that annual leave cycle. 4) An employer must grant - a) at least three weeks annual leave on full pay in respect of each 12 months of employment (the 'annual leave cycle') not later than six months after the end of the annual leave cycle or the year in which leave was earned. b) The leave earned in one year over a continuous period, if requested by the farm worker. 5) Annual leave must be taken - a) in accordance with an agreement between the employer and the farm worker; or b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section. 6) An employer may not require or permit a farm worker to take annual leave during - a) any other period of leave to which the farm worker is entitled in terms of this chapter; or b) any period of notice of termination of employment. 7) An employer may not require or permit a farm worker to work for the employer during any period of annual leave. 8) An employer may not pay a farm worker instead of granting paid leave in terms of the clause except on termination of employment in terms of clause 25. 9) An employer must pay a farm worker leave pay at least equivalent to the remuneration the farm worker would have received for working for a period equal to the period of leave, calculated at the farm worker's wage immediately before the beginning of the period of leave. 10) An employer must pay a farm worker leave pay before the beginning of the period of leave. Sectoral Determination 8: Farm Worker Sector, South Africa Part E: Leave 22. Sick Leave 1) For the purpose of this clause "sick leave cycle" means the period of 36 months employment with the same employer immediately following - a) when the farm worker commenced work; or b) the end of the farm worker's prior sick leave cycle. 2) During every sick leave cycle, the farm worker is entitled to an amount of paid sick leave equal to the number of days the farm worker would normally work during a period of six weeks. 3) Despite sub-clause (2) during the first six months of work, the farm worker is entitled to one day's sick leave for every 26 days worked. 4) An employer may, during the farm worker's first leave cycle, reduce the farm worker's entitlement to sick leave in terms of sub-clause (2) by the number of days' sick leave taken in terms of sub-clause (3). 5) Where an employer, at the request of the farm worker, pays fees for a farm worker's hospital or medical treatment, the fees paid may be set off against the worker's pay. 6) An employer is not required to pay the farm worker in terms of this clause if the farm worker has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the farm worker was unable to work for the duration's absence on account of sickness or injury. 7) Within the scope of their professional expertise, a medical certificate in terms of sub-clause (6) may be provided by - a) a medical practitioner; b) a clinic nurse practitioner; c) a traditional healer; d) a community health worker; e) a psychologist; f) any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament; or g) any other health professional authorized to diagnose medical conditions. 8) If it is not reasonably practicable for a farm worker who lives on the employer's premises to obtain a medical certificate, the employer may not withhold payment in terms of sub-clause (1) unless the employer provides reasonable assistance to the farm worker to obtain the certificate. Sectoral Determination 8: Farm Worker Sector, South Africa Part E: Leave 23. Family Responsibility Leave 1) This clause applies to a farm worker - a) who has been employed by an employer for longer than four months; and b) who works on at least four days a week for that employer. 2) An employer must grant a farm worker, during each 12 months of employment, at the request of the farm worker, three days' paid leave, which the farm worker is entitled to take - a) when the farm worker's child is born; b) when the farm worker's child is sick; or c) in the event of the death of - i) the farm worker's spouse or life partner; or ii) the farm worker's parent, adoptive parent, grandparent, child, adopted child, grandchildren or sibling. 3) A farm worker may take family responsibility leave in respect of the whole or part of the day. 4) Subject to sub-clause (5), an employer must pay a farm worker for a day's family responsibility leave- a) the wage the farm worker would normally have received for work on that day; and b) on the farm worker's usual payday. 5) Before paying a farm worker for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in sub-clause (2) for which the leave was required. 6) A farm worker's unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues. Sectoral Determination 8: Farm Worker Sector, South Africa Part E: Leave 24. Maternity Leave (In terms of section 187(1)(e) of the Labour Relations Act, 1995, the dismissal of a farm worker on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow a farm worker to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract. A farm worker may claim maternity benefits in terms of the Unemployment Insurance Act, 2001.) 1) A farm worker is entitled to at least four consecutive month's maternity leave. 2) A farm worker may commence maternity leave - a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the farm worker's health or that of her unborn child. 3) A farm worker may not work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) A farm worker who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the farm worker had commenced maternity leave at the time of the miscarriage or stillbirth. 5) A farm worker must notify an employer in writing, unless the farm worker is unable to do so, of the date on which the farm worker intends to - a) commence maternity leave; and b) return to work after maternity leave. 6) Notification in terms of sub-clause (5) must be given - a) at least four weeks before the farm worker intends to commence maternity leave; b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) No employer may require or permit a pregnant farm worker or a farm worker who is nursing her child to perform work that is hazardous to her health or the health of her child. 8) During a farm worker's pregnancy, and for a period of six months after birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if- a) the farm worker is required to perform night work, as defined in clause 15 or her work poses a danger to her health or safety or that of her child; and b) it is practicable for the employer to do so Sectoral Determination 8: Farm Worker Sector, South Africa Part F: Prohibition of Child Labour and Forced Labour 25. Prohibition of Child Labour and Forced Labour 1) No person may employ in farming activities a child - a) who is under 15 years of age; or b) who is under the minimum school leaving age in terms of any law, if this is 15 or older. (Section 31(1) of the South African Schools Act (Act 84 of 1996), requires every parent to cause every learner for whom he or she is responsible to attend a school until the last day of the year in which the learner reaches the age of 15 or the ninth grade, whichever is the first.) 2) No person may employ a child in an employment - a) that is inappropriate for a person of that age; b) that places at risk the child's well-being, education, physical or mental health, or spiritual, moral or social development. 3) An employer must maintain for three years, a record of the name, date of birth and address of every farm worker under the age of 18 years employed by them. 4) Subject to the Constitution of the Republic of South Africa, all forced labour is prohibited. 5) No person may, for their own benefit or for the benefit of someone else cause, demand or impose forced labour in contravention of sub-clause (4). 6) A person who employs a child in contravention of sub-clause (1) and (2) or engages in any form of forced labour in contravention of sub-clauses (4) and (5) commits an offence in terms of sections 46 and 48 of the Basic Conditions of Employment Act respectively, read with section 93 of that Act. 7) An employer may not require or permit a child who is 15 years of age or older but younger than 18 - a) to work after 18h00 and before 6h00 the following day; b) to work more than 35 hours in any week c) without limiting sub-clause (2), to work with agro-chemicals. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 26. Termination of Employment 1) A contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than- a) one week if the farm worker has been employed for six months or less; b) four weeks, if the farm worker has been employed for six months or more. 2) The employer and farm worker may agree to a longer notice period, but the agreement may not require or permit a farm worker to give a period of notice longer than that required of the employer. 3) a) Notice of termination of contract of employment must be given in writing except when it is given by an illiterate farm worker. b) If a farm worker who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the farm worker in an official language the farm worker reasonably understands. 4) Notice of termination of a contract of employment given by an employer must- a) not be given during any period of leave to which the farm worker is entitled in terms of clause 17(1); b) not run concurrently with any period of leave to which the farm worker is entitled in terms of this determination, except sick leave. 5) Nothing in this clause affects the right - a) of a dismissed farm worker to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; and b) of an employer or a farm worker to terminate a contract of employment without notice for any cause recognized by law. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 27. Payment Instead of Notice 1) Instead of giving a farm worker notice in terms of this clause, an employer may pay the farm worker the wages the farm worker would have received, if the farm worker had worked during the notice period. 2) If a farm worker gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the wages referred to in sub-clause (6), unless the employer and the farm worker agree otherwise. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 28. Accommodation, Livestock and Crops on Termination 1) This clause applies if the employer of a farm worker terminates the contract of employment of that farm worker - a) before the date on which the employer was entitled to do so in terms of clause 26; or b) in terms of clause 27. 2) If the farm worker resides in accommodation on the premises of the employer or that is supplied by the employer, the employer is required to provide the farm worker with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated. 3) A farm worker who keeps livestock on the land of the employer is entitled to keep that livestock for the period stipulated in the contract of employment or for one month from the date on which the contract of employment was terminated in terms of sub-clause (1). 4) a) A farm worker who has standing crops on the land of the employer is entitled to tend to those crops and harvest and remove them within a reasonable time after they become ready for harvesting, unless the employer pays the farm worker an agreed amount for the crops. b) Paragraph (a) applies in addition to a farm worker who terminates the contract of employment in accordance with clause 26. 5) If a farm worker elects to remain in accommodation in terms of sub-clause (2) after the employer has terminated the farm worker's contract of employment in terms of sub-clause (1), the employer may deduct an amount calculated in accordance with clause (8) from the amount that the employer is required to pay the farm worker in terms of clause 29. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 29. Payments on Termination 1) On termination of employment, an employer must pay a farm worker all monies due to the farm worker including - a) any remuneration that has not been paid; b) any payment owing in respect of extended ordinary hours of work in terms of clause 12; c) any paid time off that the farm worker is entitled to in terms of clause 14 or 16 that the farm worker has not taken; d) remuneration calculated in accordance with clause 21(9) for any period of annual leave due in terms of clause 21(1) that the farm worker has not taken; and e) if the farm worker has been in employment longer than four months, in respect of the farm worker's annual leave entitlement during an incomplete annual leave cycle as defined in section 20(1) - i) one day's remuneration in respect of every 17 days on which the farm worker worked or was entitled to be paid; or ii) remuneration calculated on any basis that is at least as favourable to the farm worker as that calculated in terms of subparagraph (i). Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 30. Severance Pay 1) For the purpose of this clause, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. 2) An employer must pay a farm worker who is dismissed for reasons based on the employer's operational requirements, severance pay equal to at least one week's remuneration for each completed year of continuous service with that employer. 3) A farm worker who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of sub-clause (2). 4) The payment of severance pay in compliance with this clause does not affect a farm worker's right to any other amount payable according to law. 5) If there is a dispute only about the entitlement to severance pay in terms of this clause, the farm worker may refer the dispute in writing to the CCMA. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 31. Certificate of Service 1) On termination of employment, a farm worker is entitled to a certificate of service stating - a) the farm worker's full name; b) the name and address of the employer; c) the date of commencement and date of termination of employment; d) the title of the job or brief description of the work for which the farm worker was employed at the date of termination; e) any relevant training received by the farm worker; f) the pay at date of termination; and g) if the farm worker requests, the reason for termination of employment. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 32. Keeping of Sectoral Determination Every employer on whom this sectoral determination is binding must keep a copy of the sectoral determination or an official summary, available in the workplace in a place to which the farm worker has access. Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 33. Temporary Employment Services 1) In this clause, "temporary employment service" means any person who, for reward, procures for or provides farm workers to a client if that person remunerates the farm workers. 2) for the purpose of this Determination, a farm worker whose services have been procured for, or provided to, a client by a temporary employment service is employed by of that temporary employment service, and the temporary employment service is that person's employer. 3) The employment service and the client are jointly and severally liable to comply with this determination in respect of its farm workers. 4) If the employment service is in default of its obligation to make any payment in terms of this determination to a farm worker for a period of thirty days, the client concerned becomes liable to make payment. 5) A client that in terms of this clause makes any payment that is owing to a farm worker is entitled to recover such amount from the employment service Sectoral Determination 8: Farm Worker Sector, South Africa Part G: Termination of Employment 34. Presumption as to who is a Farm Worker 1) A person who works for, or renders services to, any other person in farming activities is presumed, until the contrary is proved, to be a farm worker, regardless of the form of the contract, if any one or more of the following factors is present: a) the manner in which the person works is subject to the control or direction of another person; b) the person's hours of work are subject to the control or direction of another person; c) the person forms part of the employer's organisation; d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; e) the person is economically dependant on the other person for whom that person works or renders services; f) the person is provided with tools of trade or work equipment by the other person; or g) the person only works for or renders services to one person. Sectoral Determination 8: Farm Worker Sector, South Africa 35. What Words Mean in this Determination Any expression in this determination, which is defined in the Basic Conditions of Employment act and is not defined in this clause, has the same meaning as in the Act and- "agreement" includes a collective agreement; "Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act 75 of 1997) "child" means a person who is under 18 years of age; "day" means, for the purposes of measuring hours of work, a period of 24 hours, measured from the time when a domestic worker normally commences work; "dispute" includes an alleged dispute; "employee" means - any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer; "farm worker" means an employee who is employed mainly or wholly in connection with farming activities, and includes a domestic worker employed in a home on a farm and a security guard employed on a farm or other agricultural premises, excluding a security guard, employed in the private security industry; "incapacity" means inability to work owing to sickness or injury; "ordinary hours of work" means the hours of work permitted in terms of clause 11; "overtime" means the time that the farm worker works during a day or in a week in excess of ordinary hours of work; "paid leave" means any annual leave, paid sick leave or family responsibility leave that a farm worker is entitled to in terms of Part E of this determination; "public holiday" means any day that is a public holiday in terms of the Public Holiday Act, 1994 (Act No. 36 of 1994); "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State; "wage" means the amount of money paid or payable to a farm worker in respect of ordinary hours of work or, if they are shorter, the hours a farm worker normally works in a day or week; "week" in relation to a farm worker, means the period of seven days within which the working week of that farm worker falls; "work place" means any place where farm worker works. Any forms for this determination are available from the Dept of Labour web site at http://www.labour.gov.za Sectoral Determination 8: Farm Worker Sector, South Africa Guidelines 1. Notice period and termination of employment In terms of the Sectoral Determination, any party to an employment contract must give written notice, except when an illiterate domestic worker gives it, as follows: ? One week, if employed for six months or less ? Four weeks if employed for more than six months. Notice must be explained orally by or on behalf of the employer to a domestic worker if he/she is not able to understand it. The employer is required to provide the farm worker who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer, with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated. The farm worker is entitled to keep livestock on the premises for a period of one month or until the contract of employment could lawfully have been terminated. The farm worker who has standing crops on the land is entitled to tend to those crops, harvest and remove them within a reasonable time after they become ready for harvesting unless the employer pays the farm worker an agreed amount for the crops. All monies due to the farm worker for any wages, allowance or other payments that have not been paid, paid time-off not taken and pro-rata leave must be paid. 2. Procedure for termination of employment Whilst the contract of employment makes provision for termination of employment, it must be understood that the services of an employee may not be terminated unless a valid and fair reason exists and fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee may approach the CCMA for assistance. Pro-rata leave and severance pay might be payable. In the event of a farm worker being unable to return to work due to disability, the employer must investigate the nature of the disability and ascertain whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible for example, amending or adapting their duties to suit the disability. However, in the event of it not being possible for the employer to adapt the farm workers duties and/or to find alternatives, then such employer may terminate the services of the domestic worker. The Labour Relations Act, 66 of 1995 sets out the procedures to be followed at the termination of services in the Code of Good Practice, in Schedule 8. 3. Wage/Remuneration/Payment There is a prescribed minimum rate of remuneration. Additional payments (such as for overtime or work on Sundays or Public Holidays) are calculated from the total remuneration as indicated in clause 5.3 of the contract. The total remuneration is the total of the money received by the employee and the payment in kind, which may not be more than 10% each of the wage for food and accommodation. 4. Transport allowances Sectoral Determination 8: Farm workers Sector, South Africa does not regulate this and is therefore open to negotiation between the parties. 5. Hours of work 1. Normal hours (excluding overtime) A farm worker may not be made to: ? work more than 45 hours a week; ? work more than nine hours per day for a five day work week; ? work more than eight hours a day for a six day work week; and 2. Extension of ordinary hours of work By written agreement, ordinary hours of work may be extended by not more than five hours per week for a period of not more than four months and be reduced by the same number of hours during a period of the same duration in the same twelve month period. The employer must pay the farm worker the wage he/she would have received for his/her normal hours worked. Extended hours not reduced must be paid as overtime on termination. 3. Overtime A farm worker may not work more than 15 hours overtime per week but may not work more than 12 hours on any day, including overtime. Overtime must be paid at 1.5 times the employee's normal wage or an employee may agree to receive paid time off. 4. Daily and weekly rest periods A daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed, must be allowed. The daily rest period may by agreement be reduced to 10 hours for an employee who lives on the premises whose meal interval lasts for at least three hours. The weekly rest period may by agreement be extended to 60 consecutive hours every two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently. 5. Night work Night work means work performed after 20:00 and before 04:00 Worked only if agreed to in writing and must be compensated by an allowance of at least 10% the ordinary daily wage and if transport is available. 6. Meal intervals A farm worker is entitled to a one-hour break for a meal after not more than five hours work. Such interval may be reduced to 30 minutes, by agreement between the parties. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If required or permitted to work during this period, remuneration must be paid. 7. Work on Sundays Must be paid as follows: Time worked on a Sunday Payment One hour or less Double the wage for one hour More than one hour but not more than two hours Double the ordinary wage for time worked More than two hours but not more than five hours The ordinary daily wage. More than five hours The greater of double the wage payable in respect of time worked (excluding overtime) or double the ordinary daily wage. A farm worker who does not reside on the farm who works on a Sunday must be regarded as having worked at least two hours on that day. 8. Public Holidays The days mentioned in the Public Holidays Act must be granted but the parties can agree to further public holidays. Work on a public holiday is entirely voluntary and a farm worker may not be forced to work on such public holiday. The official public holidays are: New Years Day Youth Day Human Rights Day National Woman's Day Good Friday Heritage Day Family Day Day of Reconciliation Freedom Day Christmas Day Workers Day Day of Goodwill Any other day declared an official public holiday from time to time should also be granted. These days can be exchanged for any other day by agreement. If the employee works on a public holiday he/she shall be paid double the normal days wage. 9. Annual Leave Annual leave may not be less than three weeks per year for full-time workers or by agreement, one day for every 17 days worked or one hour for every 17 hours worked. The leave must be granted not later than six months after completion of the period of 12 consecutive months of employment. The leave may not be granted concurrent with any period of sick leave, nor with a period of notice of termination of the contract of employment. 10. Sick leave During every sick leave cycle of 36 months an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. During the first six months of employment, an employee is entitled to one day's paid sick leave for every 26 days worked. The employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury. 11. Maternity leave The employee is entitled to at least four consecutive months' maternity leave. The employer is not obliged to pay the domestic worker for the period for which she is off work due to her pregnancy. However the parties may agree that the domestic worker will receive part of or her entire salary/wage for the time that she is off due to pregnancy. 12. Family responsibility leave Employees employed for longer than four months and for at least four days a week are entitled to take three days' paid family responsibility leave during each leave cycle when the employee's child is born, or when the employee's child is sick or in the event of the death of the employee's spouse or life partner or parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. 13. Deduction from the remuneration The Sectoral Determination prohibits an employer from deducting any monies from the workers wages without his/her written permission. A deduction of not more than 10% each of the wage may be deducted for food and accommodation provided on a consistent and regular basis and provided the house has a roof that is durable and waterproof, has a glass window that can be opened, electricity and water on tap is available inside the house and a flush toilet or pit latrine is available insider or in close proximity to the house. 14. Other issues There are certain other issues which are not regulated by the Sectoral Determination such as probationary periods, right of entry to the employers premises, afternoons off, weekends off and pension schemes, medical aid schemes, training/school fees, funeral benefits and savings account, however the aforementioned may be negotiated between the parties and included in the contract of employment. 15. Prohibition of Employment The Sectoral Determination prohibits employment of any person under the age of 15 and it is therefore important for an employer to verify the age of the domestic worker by requesting a copy of the identity document or birth certificate. 16. Other conditions of employment There is no provision, which prevents any other conditions of employment being included in a contract of employment but any provision, which sets conditions, which are less favourable than those set by the Determination, would be invalid. These guidelines are not meant to be a complete summary of the Sectoral Determination and/or legal advice. Should there be any doubt as to rights and/or obligations in terms of the Act or terms of any clause of the suggested Contract of Employment, such queries can be directed to the local office of the Department of Labour, who will gladly assist. Sectoral Determination 9: Wholesale and Retail Sector, South Africa I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of section 51 (1) of the Basic Conditions of Employment Act, No. 75 of 1997, make a Sectoral Determination establishing conditions of employment and minimum wages for employees in the Wholesale and Retail Sector, South Africa, which appears in the schedule hereto and determine 1 February 2003 as the date from which the provisions of this Sectoral Determination shall be binding. M M S MDLADLANA, MP MINISTER OF LABOUR Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part A : Application 1. Application 1) This determination applies to the employment of employees in the wholesale and retail sector in the Republic of South Africa. 2) In this determination, the "wholesale and retail sector" means the sector in which employers and employees are mainly or wholly associated for the purpose of procuring products from any supplier or manufacturer for the purpose of sale to any person, whether on a wholesale or retail basis; and, in addition, includes - a) any other activities engaged in by an employer in the wholesale and retail sector including, but not limited to, merchandising, warehousing or distribution operations that are incidental to, or supportive of, the employer's enterprise; and b) any other activity conducted by an employer whose core business falls within in the wholesale and retail sector on or at the premises where that business is conducted. 3) This determination does not apply to employees - a) employed in activities covered by another sectoral determination in terms of the Basic Conditions of Employment Act; or b) covered by an agreement of a bargaining council in terms of the Labour Relations Act. 4) Employees who work for an employer for 24 or less hours in a month - a) must be paid at least the hourly rate set out in Tables 1 - 6 of this determination. b) except as provided in paragraph (a), this determination does not apply to an employee who works for an employer for 24 hours or less in a month. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 2. Wages 1) With effect from 1 February 2003, an employer must pay an employee at least the minimum wage prescribed in this part of the sectoral determination. 2) An employer must pay an employee who works for the employer for more than 27 hours per week - a) at least the weekly or monthly wage set out in Tables 1 to 6; or b) by agreement between the employer and the employee, at least the hourly rate set out in Tables 1 to 6 for every hour or part of an hour that the employee works. 3) An employer must pay an employee who works 27 hours or less per week - a) if an agreement has been concluded in terms of clause 11, at least the hourly rate as set out in Tables 1 to 6 for every hour or part of an hour that the employee works, plus 25%; or b) if no agreement has been concluded in terms of clause 11, at least the hourly rate as set out in Tables 1 to 6 for every hour or part of an hour that the employee works. 4) An employer must pay an employee employed in a job category not listed in Tables 1 to 6 at least the minimum wage prescribed for a job category requiring an equivalent level of training, skill or experience. 5) Tables 1, 2 and 3 apply to employers in the wholesale and retail sector in Areas A, B and C respectively. 6) Tables 4, 5 and 6 apply to employers in Areas A, B and C respectively who - a) employ less than five employees; or b) are in an area that fell within the former Republics of Transkei, Bophuthatswana, Venda or Ciskei or that was excluded by Wage Determination 478. 7) An employee who works for less than four hours on any day must be paid for four hours work on that day. 8) An employer who requires or permits an employee to perform work for longer than one hour on any day and that work is normally performed by a higher paid category of employee, must - a) pay the employee in respect of that day not less than the daily wage calculated at the higher rate; and b) paragraph (a) applies whether the work is performed in addition to, or in substitution for the employer's normal work. 9) Unless otherwise agreed in writing, nothing in this determination precludes an employer from requiring an employee to perform work of another category of employee for which the same or a lower wage is prescribed. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 3. Application of Minimum Wages to New Employers 1) Despite clause 2, for two years after the commencement of this determination, a newly established employer must pay employees a minimum wage of at least 90% of the applicable minimum wage in Tables 1 to 3. 2) For the purposes of this clause, a 'newly established employer' a) means any employer that - i) commenced business after 1 February 2001, and ii) has not been in operation for longer than two years; and b) does not include any employer established as a result of - i) the division, sale or transfer of the whole or part of any existing employer; ii) the outsourcing or sub-contracting of the whole or part of any existing business or service. 3) This clause does not apply to employers covered by clause 2 (6). Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 4. Commission Work 1) An employer and employee employed as a sales person may agree in writing that the employee will perform commission work on a regular basis. 2) An employee who performs commission work must receive a wage that is at least two-thirds of the applicable minimum wage that the employee is entitled to in terms of clause 2. 3) An agreement to perform commission work in terms of this clause must be concluded before the work is commenced and must include - a) the employee's wage; b) the basis for calculating commission payments; c) the period over which commission payments are calculated which may not be longer than one month; d) when the employer must pay commission payments to the employee which may not be longer than one month after the end of the period in which the commission is earned; and e) the type, description, number, quantity or value of sales, margin, profit, or orders (individual, weekly, monthly or otherwise) for which the employee is entitled to earn commission. 4) The employer must supply the employee with a copy of the agreement to perform commission work. 5) If during any calculation period the employee does not earn an amount equivalent to at least the prescribed minimum wage because any act or omission by or on behalf of the employer has restricted the employee's ability to earn commission, the employer must pay the employee at least the applicable minimum wage as set out in Tables 1 to 6. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 5. Calculation of Remuneration or Wages 1) The remuneration or wages of an employee must be calculated by reference to the employee's ordinary hours of work. 2) For the purposes of any calculation in terms of this determination - a) the hourly remuneration or wages of a employee is obtained by - i) dividing the daily remuneration or wages by the number of ordinary hours worked in a day; or ii) dividing the weekly remuneration or wages by the number of ordinary hours worked in a week. b) the daily remuneration or wages of a employee is obtained by - i) multiplying the hourly remuneration or wages by the number of ordinary hours worked in a day; or ii) dividing the weekly remuneration or wages by the number of days worked in a week. c) the weekly remuneration or wages of a employee is obtained by - i) multiplying the hourly remuneration or wages by the number of ordinary hours worked in a week; or ii) multiplying the daily remuneration or wages by the number of days worked in a week; or iii) dividing the monthly remuneration or wages by four and one-third. d) the monthly remuneration or wages of an employee is obtained by multiplying the weekly remuneration or wages by four and a third. e) If an employee's remuneration or wages is calculated, either wholly or in part, on a basis other than time, or if an employee's remuneration or wages fluctuates significantly from period to period, any payment to that employee in terms of this clause must be calculated by reference to the employee's remuneration - i) during the preceding 13 weeks; ii) if the employee has been in employment for a shorter period, that period; or iii) by agreement, the average earned over a period of time of not more than the previous 12 months. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 6. Payment of Remuneration 1) An employer must pay an employee - a) in South African currency; b) daily, weekly, fortnightly or monthly; and c) in cash, by cheque or by direct deposit into an account designated by the employee. 2) Any remuneration paid in cash or by cheque must be given to each employee - a) at the workplace or at a place agreed to by the employee; b) during the employee's working hours or within fifteen minutes of the commencement or conclusion of those hours; and c) in a sealed envelope which becomes the property of the employee. 3) An employer must pay an employee - a) on the normal pay day as agreed; or b) on the termination of the contract of employment. 4) Sub-clause (3) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 7. Information Concerning Remuneration 1) On every pay day, the employer must give the employee a statement showing - a) the employer's name and address; b) the employee's name and occupation; c) the period in respect of which payment is made; d) the employee's wage rate and overtime rate; e) the number of ordinary hours worked by the employee during that period; f) the number of overtime hours worked by the employee during that period; g) the number of hours worked by the employee on a public holiday or on a Sunday; h) the employee's wage; i) details of any other pay, including commission payments, arising out of the employee's employment; j) details of any deductions made; and k) the actual amount paid to the employee. 2) An employer must retain a copy or record of each statement for at least three years. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part B : Wages 8. Deductions and other Acts Concerning Remuneration 1) An employer may not make any deduction from an employee's remuneration unless - a) subject to sub-clause (2), the employee in writing agrees to the deduction in respect of a debt specified in the agreement; or b) the deduction is required or permitted in terms of a law, collective agreement, court order or arbitration award. 2) A deduction in terms of sub-clause (1)(a) may be made to reimburse an employer for loss or damage only if - a) the loss or damage occurred in the course of employment and was due to the fault of the employee; b) the employer has followed a fair procedure and has given the employee a reasonable opportunity to show why the deductions should not be made; c) the total amount of the debt does not exceed the actual amount of the loss or damage; and d) the total deductions from the employee's remuneration in terms of this sub-clause do not exceed one-quarter of the employee's remuneration in money. 3) A deduction in terms of sub-clause (1)(a) in respect of any goods purchased by the employee must specify the nature and quantity of goods. 4) An employer who deducts an amount from an employee's remuneration in terms of sub-clause (1) for payment to another person must pay the amount to the person in accordance with the time period and other requirements specified in the agreement, law, court order or arbitration award. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part C : Particulars of Employment 9. Written Particulars of Employment 1) An employer must supply an employee, when the employee starts work, with the following particulars in writing - a) the full name and address of the employer; b) the name and occupation of the employee, or a brief description of the work for which the employee is employed; c) the place of work, and where the employee is required or permitted to work at various places, an indication of this; d) the date on which the employment began; e) the employee's ordinary hours of work and days of work; f) the employee's wage or the rate and method of payment; g) the rate of pay for overtime work; h) any other cash payments that the employee is entitled to; i) any payment in kind that the employee is entitled to and the value of the payment in kind; j) how frequently remuneration will be paid; k) any deductions to be made from the employee's remuneration; l) the leave to which the employee is entitled to; and m) the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate. 2) When any matter listed in sub-clause (1) changes - a) the written particulars must be revised to reflect the change; and b) the employee must be supplied with a copy of the document reflecting the change. 3) If an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands. 4) The employer must sign the written particulars and any change in terms of sub-clause (2). 5) The employer may require the employee to - a) acknowledge receipt of the written particulars and any change in terms of sub-clause (2) in writing on a copy of the particulars; or b) if the employee is unable to or refuses to acknowledge receipt, record that the employee has received a copy of the written particulars. 6) An employer must retain a copy of the written particulars while the employee is employed and for three years thereafter. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 10. Application of this Part 1) This part does not apply to - a) senior managerial employees; b) employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work. c) to an employee earning in excess of - i) during the first nine months after the sectoral determination becomes effective, a wage of R56 000 per annum; and ii) thereafter, the amount determined by the Minister in terms of section 6(3)(The minimum earning threshold determined by the Minister since December 1998 is R89 455,00) of the Basic Conditions of Employment Act. 2) Clauses 12, 13(1) (Working of overtime), 17(1) (Granting of meal intervals) 18(1) (Granting of rest periods) and 20(2) (Night work) and 21 (Public holidays) do not apply while an employee is engaged in emergency work. 3) For the purposes of this clause - a) 'senior managerial employee' means an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally; b) 'emergency work' means work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 11. Application of Parts D and E to Employees Working 27 Hours or less per Week 1) A written agreement may provide that an employee who works 27 hours or less per week is employed on the following terms and conditions - a) the employee is paid the relevant hourly wage rate in terms of Tables 1 to 6, plus 25% for any ordinary hours of work worked by the employee, including ordinary hours of work performed on Sundays; b) the employee is granted at least two days off during every week; c) the employer is not required to pay the employee an allowance for performing night work; d) the right to paid sick-leave in terms of clause 23 and family responsibility leave in terms of clause 24 do not apply to the employee; e) the employer must grant the employee at least two weeks paid annual leave in accordance with the provisions of clauses 22(2), (3), (5) - (10) and, on request by the employee, at least one week's unpaid leave each year; and f) in all other respects, Parts D and E of this determination, apply to the employee. 2) An employee who works for 27 hours or less per week who has not concluded an agreement in terms of sub-clause (1) is entitled to all basic conditions of employment established by this determination, where appropriate on a proportionate basis. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 12. Ordinary Hours of Work 1) An employer may not require or permit an employee to work more than - a) 45 ordinary hours in any week; or b) if an agreement has been concluded in terms of sub-clause (3), 40 ordinary hours in any week. 2) An employer may not require or permit an employee to work more than - a) nine ordinary hours on any day if the employee works for five days or less in a week; or b) eight ordinary hours in any day if the employee works on more than five days in any week. 3) A written agreement may provide that an employee who works 40 or less ordinary hours of work per week including a Sunday is employed on the following terms and conditions - a) the employer must grant the employee at least - i) two full days off during every week; and ii) one Sunday off during every four consecutive weeks; b) the employer may only require or permit an employee to work on a day off granted in terms of paragraph (a) in terms of an agreement in respect of a particular day; c) the employer must pay the employee for work on a day off granted in terms of paragraph (a) at least - i) double the employee's wage for each hour worked; or ii) if it is greater, the employee's daily wage; d) clause 18(1)(b) regulating the weekly rest period and clause (19) regulating payment for work on Sunday do not apply to the employee. 4) An employee's ordinary hours of work in terms of sub-clause (1) may by agreement be extended by up to 15 minutes in a day but no more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 13. Overtime 1) An employer may not require or permit an employee - a) to work overtime except in accordance with an agreement concluded by the employer and the employee; b) to work more than 10 hours' overtime a week; or c) to work more than 12 hours, including overtime, on any day. 2) A written agreement - a) may increase the maximum permitted overtime to 15 hours a week; and b) an agreement contemplated in paragraph (a) may not apply for more than two months in any period of 12 months. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 14. Payment of Overtime 1) An employer must pay an employee at least one and one-half times the employee's wage for overtime worked. 2) Despite sub-clause (1), an agreement may provide for an employer to - a) pay a employee not less than the employee's ordinary wage for overtime worked and grant the employee at least 30 minutes' time off on full pay for every hour of overtime worked; or b) grant an employee at least 90 minutes' paid time off for each hour of overtime worked. 3) An employer must grant paid time off in terms of sub-clause (2) within one month of the employee becoming entitled to it, alternatively - a) a written agreement may increase the period contemplated by sub-clause (3) to twelve months; and b) an agreement concluded in terms of paragraph (a) with an employee when the employee commences employment, or during the first three months of employment, is only valid for one year. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 15. Compressed Working Week 1) A written agreement may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of clause 17, without receiving overtime pay. 2) An agreement in terms of sub-clause (1) may not require or permit an employee to work - a) more than 45 ordinary hours of work in any week; b) more than ten hours' overtime in any week; or c) on more than five days in any week. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 16. Averaging of Hours of Work 1) Despite clauses 12(1)(a), 12(2) and 13, the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a written agreement. 2) An employer may not require or permit an employee who is bound by an agreement in terms of sub-clause (1) to work more than - a) an average of 45 ordinary hours of work in a week over the agreed period; or b) an average of five hours' overtime in a week over the agreed period; 3) An agreement in terms of sub-clause (1) lapses after 12 months. 4) Sub-clause (3) only applies to the first two agreements concluded in terms of sub-clause (1). Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 17. Meal Intervals 1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. 2) During a meal interval, an employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee. 3) An employee must be paid - a) for a meal interval in which the employee is required to be available for work; b) for any portion of a meal interval that is in excess of 75 minutes. 4) For the purpose of sub-clause (1), work is continuous unless it is interrupted by a meal interval in accordance with this clause. 5) A written agreement may- a) reduce the meal interval to not less than 30 minutes; b) dispense with a meal interval for an employee who works fewer than six hours on a day. 6) Whenever an employer is required to give an employee a second meal interval because of overtime worked, that interval may by agreement be reduced to not less than 15 minutes. 7) An employer shall grant to each of his or her employees a rest interval of not less than 15 minutes as nearly as practicable in the middle of each first work period and second work period of the day, and during such interval such employee shall not be required or permitted to perform any work, and such interval shall be deemed to be part of the ordinary hours of work of such employee. A written agreement may extend the morning rest interval to not more than half an hour. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 18. Rest Periods 1) An employer must grant an employee - a) a daily rest period of at least twelve consecutive hours between ending work and starting work the next day; b) weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include a Sunday. 2) A daily rest period in terms of sub-clause (1)(a) may, by written agreement, be reduced to 10 hours for an employee - a) whose meal interval lasts for at least three hours. 3) Despite sub-clause (1)(b), a written agreement may provide for a rest period of at least 60 consecutive hours every second week. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 19. Payment for Work on Sundays 1) An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one-half the employee's wage for each hour worked. 2) If the payment calculated in terms of sub-clause (1) is less than the employee's daily wage, the employer must pay the employee, for the time worked on that Sunday, the employee's daily wage. 3) Despite sub-clauses (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on a Sunday and the pay the employee is entitled to receive in terms of sub-clauses (1) and (2). 4) An employee must grant paid time off in terms of sub-clause (3) within one month of the employee becoming entitled to it, alternatively - a) a written agreement may increase the period contemplated by sub-clause (4) for up to 12 months. 5) Any time worked on a Sunday by employee who does not normally work on a Sunday is not taken into account in calculating a employee's ordinary hours of work in terms of clause 12, but is taken into account in calculating the overtime worked by the employee in terms of clause 13(1)(b). 6) If a shift worked by an employee, who does not ordinarily work on a Sunday, falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 20. Night Work 1) For the purposes of this clause, "night work" means work performed after 19:00 and before 07:00 the next day. 2) An employer may only require or permit an employee to perform night work, if so agreed and if - a) the employee is compensated by the payment of an allowance at a rate of at least 10% of the hourly wage for every hour or part of an hour that the employee works; and b) transport is available between the employee's place of residence and the workplace at the beginning and end of the employee's shift. 3) An employer who requires a employee to perform work on a regular basis for a period of longer than one hour after 23:00 and before 06:00 the next day at least five times per month or 50 times per year must - a) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands - i) of any health and safety hazards associated with the work that the employee is required to perform; and ii) of the employee's right to undergo a medical examination in terms of paragraph (b); b) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards - i) before the employee starts, or within a reasonable period of the employee starting, such work; and ii) at appropriate intervals while the employee continues to perform such work; and c) transfer the employee to suitable day work within a reasonable time if - i) the employee suffers from a health condition associated with the performance of night work; and ii) it is practicable for the employer to do so. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part D : Hours of Work 21. Public Holidays 1) An employer may not require an employee to work on a public holiday, except in accordance with an agreement. 2) If a public holiday falls on a day on which an employee would ordinarily have worked, an employer must pay an employee - a) who does not work on the public holiday the employee's daily wage; b) who does work on the public holiday at least double the daily wage. 3) If an employee who works on a public holiday on which the employee would not ordinarily have worked, the employer must pay that employee an amount equal to - a) the employee's daily wage; plus b) the employee's hourly wage for each hour worked on the public holiday. 4) An employer must pay an employee for a public holiday on the employee's normal payday. 5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part E : Leave 22. Annual Leave 1) An employer must grant an employee - a) at least three calendar weeks annual leave on full pay in respect of each 12 months of employment (the 'annual leave cycle'); b) by agreement, at least one day of annual leave on full pay for every 17 days on which the employee worked or was entitled to be paid; or c) by agreement, at least one hour of annual leave on full pay for every 17 hours on which the employee worked or was entitled to be paid. 2) 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 on which the employee would otherwise have worked. 3) An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave on full pay granted to the employee at the employee's request in that annual leave cycle. 4) An employer must grant at least three calendar weeks annual leave on full pay in respect of each 12 months of employment (the 'annual leave cycle') not later than six months after the end of the annual leave cycle or the year in which the leave was earned. 5) Annual leave must be taken - a) in accordance with an agreement between the employer and employee; or b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this clause. 6) An employer may not require or permit an employee to take annual leave during - a) any other period of leave to which the employee is entitled in terms of this part of the sectoral determination; or b) any period of notice of termination of employment. 7) An employer may not require or permit an employee to work for the employer during any period of annual leave. 8) An employer may not pay an employee instead of granting paid leave in terms of this clause except on termination of employment. 9) 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 on the basis of the employee's rate of remuneration immediately before the period of leave. 10) An employer must pay an employee leave pay - a) before the beginning of the period of leave; or b) by agreement, on the employee's normal payday. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part E : Leave 23. Sick Leave 1) For purposes of this clause "sick leave cycle" means the period of 36 months employment with the same employer immediately following - a) the employee's commencement of work; or b) the end of the employee's previous sick leave cycle. 2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. 3) Despite sub-clause (2) during the first six months of work, an employee is entitled to one day's sick leave for every 26 days worked. 4) An employer may, during the employee's first leave cycle, reduce the employee's entitlement to sick leave in terms of sub-clause (2) by the number of days' sick leave taken in terms of sub-clause (3). 5) An employer may require an employee who has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period to produce a medical certificate before paying the employee in terms of this clause. 6) The medical certificate in terms of sub-clause (5) must - a) be issued and signed by a medical practitioner, or any other person who is certified to diagnose and treat patients and who is registered with a professional council, established by an Act of Parliament; and b) state that the employee was unable to work for the duration of the employee's incapacity. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part E : Leave 24. Family Responsibility Leave 1) This clause applies to an employee - a) who has been employed by an employer for longer than four months; and b) who works on at least four days a week for that employer. 2) An employer must grant an employee, during each 12 months of employment, at the request of the employee, three days' leave, which the employee is entitled to take - a) when the employee's child is born; b) when the employee's child is sick; or c) in the event of the death of - i) the employee's spouse or life partner; or ii) the employee's parent, adoptive parent, grandparent, child, adopted child, grandchildren or sibling. 3) An employee may take family responsibility leave in respect of the whole or part of the day. 4) Subject to sub-clause (5), an employer must pay an employee for a day's family responsibility leave - a) the wage the employee would normally have received for work on that day; and b) on the employee's usual payday. 5) Before paying an employee for leave in terms of this clause, an employer may require reasonable proof of an event contemplated in sub-clause (2) for which the leave was required. 6) An employee's unused entitlement to leave in terms of this clause lapses at the end of the annual leave cycle in which it accrues. 7) A collective agreement may vary the number of days and the circumstances under which leave is to be granted in terms of this clause. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part E : Leave 25. Maternity Leave (In terms of Section 187(1)(e) of the Labour Relations Act, 1995, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy, is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act, 1995, includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract.) 1) An employee is entitled to at least four consecutive months' maternity leave. 2) An employee may commence maternity leave - a) at any time from four weeks before the expected date of birth, unless otherwise agreed; or b) on a date from which a medical practitioner or a midwife certifies that it is necessary for the employee's health or that of her unborn child. 3) An employee may not work for six weeks after the birth of her child, unless a medical practitioner or midwife certifies that she is fit to do so. 4) A employee who has a miscarriage during the third trimester of pregnancy or bears a stillborn child is entitled to maternity leave for six weeks after the miscarriage or stillbirth, whether or not the employee had commenced maternity leave at the time of the miscarriage or stillbirth. 5) 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 - a) commence maternity leave; and b) return to work after maternity leave. 6) Notification in terms of sub-clause (5) must be given - a) at least four weeks before the employee intends to commence maternity leave; b) if it is not reasonably practicable to do so, as soon as is reasonably practicable. 7) During an employee's pregnancy, and for a period of six months after the birth of her child, her employer must offer her suitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if - a) the employee is required to perform night work, as defined in clause 20 or her work poses a danger to her health or safety or that of her child; and b) it is practicable for the employer to do so. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part F : Prohibition of Child Labour and Forced Labour 26.Prohibition of Child Labour and Forced Labour 1) No person may employ a child - a) who is under 15 years of age; or b) who is under the minimum school leaving age in terms of any law, if this is 15 or older (Section 31(1) of the South African Schools Act, 1996 (Act 84 of 1996), requires every parent to cause every learner for whom he or she is responsible to attend a school until the last school day of the year in which the learner reaches the age of 15 or the ninth grade, whichever is the first.) 2) No person may employ a child in employment - (This applies to children under 18 years of age.) a) that is inappropriate for a person of that age; b) that places at risk the child's well being, education, physical or mental health, or spiritual, moral or social development. 3) An employer must maintain for three years a record of the name, date of birth and address of every employee under the age of 18 years employed by them. 4) Subject to the Constitution of the Republic of South Africa, all forced labour is prohibited. 5) No person may, for their own benefit or for the benefit of someone else cause, demand or impose forced labour in contravention of sub-clause (4). 6) A person who employs a child in contravention of sub-clauses (1) and (2) or engages in any form of forced labour in contravention of sub-clauses (4) and (5) commits an offence in terms of sections 46 and 48 of the Basic Conditions of Employment Act respectively, read with section 93 of that Act. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part G : Termination of Employment SD9: 27. Termination of Employment 1) A contract of employment terminable at the instance of a party to the contract may be terminated only on notice of not less than - a) one week, if the employee has been employed for six months or less; b) two weeks, if the employee has been employed for more than six months but not more than one year; and c) four weeks, if the employee has been employed for one year or more. 2) A written agreement may - a) not permit a notice period shorter than that required by sub-clause (1); b) despite paragraph (a), an agreement may permit the notice period of four weeks required by sub-clause (1)(c) to be reduced to not less than two weeks. 3) No agreement may require or permit an employee to give a period of notice longer than that required of the employer. 4) Notice of termination of a contract of employment must - a) be given in writing except when it is given by an illiterate employee; or b) if an employee who receives notice of termination is not able to understand it, the notice must be explained orally by, or on behalf of, the employer to the employee in an official language the employee reasonably understands. 5) Notice of termination of a contract of employment given by an employer must - a) not be given during any period of leave to which the employee is entitled in terms of clause 22(1); b) not run concurrently with any period of leave to which the employee is entitled in terms of this determination, except sick leave. 6) Nothing in this clause affects the right of - a) a dismissed employee to dispute the lawfulness or fairness of the dismissal in terms of Chapter VIII of the Labour Relations Act, 1995, or any other law; and b) an employer or an employee to terminate a contract of employment without notice for any cause recognized by law. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part G : Termination of Employment 28. Payment Instead of Notice 1) Instead of giving an employee notice in terms of this clause, an employer may pay the employee the full pay the employee would have received if the employee had worked during the notice period. 2) If an employee gives notice of termination of employment, and the employer waives any part of the notice, the employer must pay the full pay referred to in sub-clause (1), unless the employer and employee agree otherwise. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part G : Termination of Employment 29. Payment on Termination 1) On termination of employment, an employer must pay an employee all monies due to the employee for any - a) wages, allowances or other payments that have not been paid; b) paid time-off that the employee is entitled to in terms of clause 14 or 19 that the employee has not taken; c) leave in terms of clause 22 that the employee has not taken, irrespective of whether the employee has completed an annual leave cycle or year of service, unless the employee has not been employed longer than four months. 2) For the purposes of sub-clause (1)(c), an employee is entitled to be paid in respect of any period for which leave was not granted - a) one week's wages for every four months worked; or b) one day's wages in respect of every 17 days on which the employee worked or was entitled to be paid. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part G : Termination of Employment 30. Severance Pay 1) For the purposes of this clause, "operational requirements" means requirements based on the economic, technological, structural or similar needs of an employer. 2) An employer must pay an employee who is dismissed for reasons based on the employer's operational requirements severance pay equal to at least one week's wage for each completed year of continuous service with that employer. 3) An employee who unreasonably refuses to accept the employer's offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of sub-clause (2). 4) The payment of severance pay in compliance with this clause does not affect an employee's right to any other amount payable according to law. 5) If there is a dispute only about the entitlement to severance pay in terms of this clause, the employee may refer the dispute in writing to the CCMA. 6) An employee who refers a dispute to the CCMA as provided in sub-clause (5) must satisfy the body that a copy of the referral has been served on all other parties to the dispute. 7) The CCMA must attempt to resolve the dispute through conciliation. 8) If the dispute remains unresolved the employee may refer the dispute to arbitration. 9) If the Labour Court is adjudicating a dispute about a dismissal on the employer's operational requirements, the Court may enquire into and determine the amount of any severance pay to which a dismissed employee may be entitled and the Court may make an order directing the employer to pay such amount. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part G : Termination of Employment 31. Certificate of Service 1) On termination of employment, an employee is entitled to a certificate of service stating - a) the employee's full name; b) the name and address of the employer; c) the date of commencement and date of termination of employment; d) the title of the job or brief description of the work for which the employee was employed at the date of termination; e) any relevant training received by the employee; f) the pay at date of termination; and g) if the employee requests, the reason for termination of employment. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part H : General SD9: 32. Uniforms, Overalls and Protective Clothing 1) An employer must provide free of charge - a) at least two overalls or washing coats per year to an employee who is directly engaged in the selling or handling of foodstuffs, confectionery or groceries not pre-packed in sealed containers; b) rain gear to employees who in the performance of his or her duties is regularly exposed to wet weather; c) kneepads to an employee who scrubs or washes floors by hand. 2) Subject to sub-clause (3), an employer must maintain clothing supplied in terms of sub-clause (1) in a clean and serviceable condition at no cost to the employee. 3) If an employer who requires an employee to wear clothing in terms of sub-clause (1) pays the employee an allowance of at least R2.60 per week per item, the employee is responsible for the maintaining, laundering and cleaning of the clothing. 4) Any clothing provided to an employee in terms of sub-clause (1) remains the property of the employer. 5) An employer may offer to supply an employee with one or more outfits of specified colour shade design or style on conditions not less favourable to the employee than the following - a) the price paid by the employee may not exceed the cost to the employer, and b) the employer may require the employee to wear the outfit at all times while on duty. If only one outfit has been supplied, this requirement does not apply while the outfit is being cleaned or repaired; c) the employer may not prohibit the employee from wearing the outfit while off duty; d) the employer must permit the employee to pay for each outfit supplied by means of at least four equal monthly deductions from the employee's remuneration. If the contract of employment is terminated before the full amount due by the employee for any outfit has been paid, the employer may deduct the balance due in one sum from any remuneration due to the employee on termination. 6) The offer referred to in sub-clause (5) must be in writing and must set out the conditions of the offer. Unless the employee accepts the offer in writing within seven days after receiving it, the employee is deemed to have rejected the offer. 7) An outfit referred to in sub-clause (6) becomes the property of the employee. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part H : General 33. Attendance Register 1) This clause does not apply to - a) a driver or an employee employed to accompany a driver; or b) an employee earning in excess of the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. 2) An employer must - a) provide in its establishment a manual or automated attendance register; b) record the name of each employee in the register; c) ensure that the employee records for each day worked - i) the day of the week; ii) the time the employee commenced work; iii) the time of the starting and finishing of all meal or other intervals which are not part of ordinary hours of work; iv) the time of finishing work on the day; v) the amount of overtime worked for the day; vi) the total number of hours worked for the day; and vii) the employee's signature. 3) An employer must retain the records of attendance referred to in sub-clause (2), for a period of not less than three years. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part H : General 34. Temporary Employment Services 1) For the purposes of this sectoral determination, a person whose services have been procured for, or provided to, a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer. 2) Despite sub-clause (1), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person. 3) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any employee who provides services to that client, does not comply with this sectoral determination. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part H : General 35. Duration of Employment 1) For the purposes of determining the length of an employee's employment with an employer for any provision of this sectoral determination, previous employment with the same employer must be taken into account if the break between the periods of employment is less than one year. 2) Any payment made or any leave granted in terms of this sectoral determination to an employee contemplated in sub-clause (1) during a previous period of employment must be taken into account in determining the employee's entitlement to leave or to a payment in terms of this sectoral determination. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part H : General 36. Keeping of Sectoral Determination Every employer on whom this sectoral determination is binding must keep a copy of the sectoral determination or an official summary available in the workplace in a place to which the employee has access. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Part H : General 37.What Words Mean in this Determination Any expression in this determination, which is defined in the Basic Conditions of Employment Act and is not defined in this clause, has the same meaning as in that Act and - "agreement" includes a collective agreement; "assistant manager" means an employee who is required to support the Manager in managing the activities of the business and who is authorised by the employer, in the Manager's absence, to assume the responsibilities of the Manager; "Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act 75 of 1997); "cashier" means an employee who receives payments on behalf of the employer for products or services, issues receipts for payments, deposits payments into the employer's elected bank account or performs any other activities relating to payments; "child" means a person under 18 years of age; "clerk" means an employee employed in any form of administrative work, including, but not limited to, writing, filing, recording information, reconciling documents; "commission work" means any system under which an employee receives additional pay calculated on the value or volume of sales, margin, profit, or on the value or number of orders submitted to and accepted by an employer; "day" means, for the purposes of measuring hours of work, a period of 24 hours measured from the time when the employee normally commences work; "displayer" means an employee who prepares window, promotional or sale display material, whether internally or externally; "dispute" includes an alleged dispute; "driver" means an employee who drives a motor vehicle for purposes of deliveries or to perform other activities on behalf of an employer and who holds the requisite licence; "employee" means - a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and b) any other person who in any manner assists in carrying on or conducting the business of an employer; "fork-lift operator" means an employee who operates a mobile power-driven hoist used in the loading, unloading, moving or stacking of products and who holds the requisite license; "general assistant" means an employee who is engaged in any one or more of the following duties - a) accompanying or assisting a driver or other employee who drives a vehicle, but not driving the vehicle; b) accompanying any employee who uses tools, but not using tools independently; c) affixing postage stamps or labels; d) assembling boxes by hand; e) breaking up scrap metal; f) carrying or moving goods, by means other than a power-driven device; g) changing wheels or repairing punctures; h) cleaning machinery, premises, vehicles, furniture, implements, tools, utensils or goods on the employer's premises; i) cleaning or plucking poultry; j) cleaning, cutting, filleting, scaling or slicing raw fish; k) collecting cash in the case of c.o.d. sales or accepting written orders; l) cutting by hand, paper, samples, linoleum, mats, curtain rods, netting wire, wire or other articles or commodities; m) cutting up scrap metal; n) delivering or conveying letters, parcels, messages or goods by means other than by a motor vehicle with an engine capacity exceeding 100 cm²; o) driving an animal-drawn vehicle; p) feeding into or drawing off from vats, tanks or other containers; q) feeding or taking off from automatic or semi-automatic machines, moving belts or platforms; r) filling bins or dump baskets with goods; s) filling, capping, corking or labeling bottles or other containers; t) folding or enveloping mail; u) grading eggs according to size; v) hanging clothing, packages or other goods on rails or hooks or in gondolas, racks or shelves; w) ironing; x) loading or unloading vehicles; y) making or maintaining fires or removing refuse or ash; z) making tea or similar beverages for, or serving tea or similar beverages to employees, the employer or guests; aa) marking, branding or stenciling goods by hand; bb) melting scrap lead cc) mending bags or sacks by hand or machine; dd) mending or altering second-hand clothing for sale; ee) mixing by hand the ingredients of animal or poultry foods the mass of which has been measured beforehand or otherwise predetermined; ff) nailing or repairing boxes or crates; gg) oiling or greasing machinery of vehicles, other than motor vehicles; hh) opening or closing doors, windows, bales boxes or other packages; ii) operating an addressograph, photostat, or a duplicating machine; jj) operating any power-driven machine not specifically mentioned elsewhere in this clause; kk) operating a portable pump; ll) packing goods for dispatch or delivery, including packing goods at point of payment; mm) packing, placing or stacking goods in cabinets or on counters, gondolas, racks or shelves; nn) repetitive marking of prices on goods by means of a rubber stamp or other marking device, under supervision; oo) repetitive mass-measuring or repetitive measuring; or mass measuring for stock; pp) setting up or dismantling corrugated or fibre board boxes or similar containers; qq) sorting goods; rr) strapping or wiring boxes; ss) tending, cleaning or feeding animals; tt) unpacking goods; uu) using rubber or other stamps, involving no discretion; vv) washing uniforms, overalls or protective clothing; ww) wrapping parcels; "gross vehicle mass" means the maximum mass of a vehicle and its load as specified by the manufacturer, or if there is no such specification, the relevant registering authority; "incapacity" means inability to work owing to sickness or injury; "manager" means an employee who is authorised by an employer to manage the activities of a business or part of a business or to manage the employees in a business or part of a business; "merchandiser" means an employee who draws goods from a storage area, cleans shelving, unpacks and prices products and removes damaged or expired goods; "night work" means work performed after 19h00 and before 07h00 the next day; "ordinary hours of work" means the hours of work permitted in terms of clause 12; "overtime" means the time that the employee works during a day or in a week in excess of ordinary hours of work; "paid leave" means any annual leave, paid sick leave or family responsibility leave that a employee is entitled to in terms of Part E of this determination; "public holiday" means any day that is a public holiday in terms of the Public Holiday Act, 1994 (Act No. 36 of 1994); "remuneration" means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State; "sales assistant" means an employee who prepares products and services for sale, attends to customers' enquiries, assembles products for customers and, with the authority of an employer, accepts payment for products or services sold; "sales person" means an employee employed to perform the tasks of a sales assistant and who receives, in addition to the minimum wage mentioned in clause 3, commission payments in terms of clause 4; "security guard" means an employee who guards, protects or patrols an employer's establishment, buildings, property and goods; "shop assistant" means an employee who packs, replenishes, marks, assembles or assists in the dispatching of products on instruction from a more senior employee; "supervisor" means an employee who is authorised by an employer or manager to be responsible for the efficient performance and behaviour of other employees; "temporary employment service" means any person who, for reward, procures for, or provides to, a client, other persons - a) who render services to, or perform work for, the client; and b) who are remunerated by the temporary employment service; "trainee manager" means an employee who receives training on an ongoing basis in the duties and responsibilities of a manager; "wage" means the amount of money paid or payable to an employee in respect of ordinary hours of work or, if they are shorter, the hours an employee normally works in a day or week; "week" in relation to an employee, means the period of seven days within which the working week of that employee ordinarily falls; "workplace" means any place where employees work. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Minimum Wage Tables TABLE 1 MINIMUM WAGES FOR EMPLOYEES IN THE WHOLESALE AND RETAIL SECTOR (SEE ANNEX) Sectoral Determination 9: Wholesale and Retail Sector, South Africa Demarcated Areas For Tables Classification "AREA A" means the metropolitan and local municipalities as contained in the table below and it applies to the minimum wage Tables 1 and 4 AREA A Metropolitan and Local Municipality Bergrivier , Breederivier, Buffalo City, Cape Agulhas, Cederberg, City of Cape Town, City of Johannesburg Metropolitan Municipality, City of Tshwane, Drakenstein, Ekurhuleni, Emalahleni, Emfuleni, Ethekwini Metropolitan Unicity, Gamagara, George, Hibiscus Coast, Karoo Hoogland, Kgatelopele, Khara Hais, Knysna, Kungwini, Kouga, Langeberg, Lesedi, Makana, Mangaung, Matzikama, Metsimaholo, Middelburg, Midvaal, Mngeni, Mogale, Mosselbaai, Msunduzi, Mtubatuba, Nama Khoi, Nelson Mandela, Nokeng tsa Taemane, Oudtshoorn, Overstrand, Plettenbergbaai, Potchefstroom, Randfontein, Richtersveld, Saldanha Bay, Sol Plaatjie, Stellenbosch, Swartland, Swellendam, Theewaterskloof, Umdoni, uMhlathuze and Witzenberg. "AREA B" " means the metropolitan and local municipalities as contained in the table below and it applies to the minimum wage Tables 2 and 5. AREA B Metropolitan and Local Municipality Abaqulusi,;Beaufort West, Bela Bela, Blue Crane Route, Boland District, Breede River/Winelands, Camdeboo, Central Karoo, Dannhauser, DC43 District, Delmas, Dihlabeng, Dikgatlong, Dipaleseng, District Highlands, Emnambithi; Endumeni, Enthenjeni; Frances Baard;Garden route/ Klein Karoo; Garib; Gariep, Ga-Segonyana, Great Kei,Greater Kokstad, Greater Tzaneen, Hantam, Highlands, Highveld East, Ikwezi, Impendle, Inkwanca, Inxuba Yethemba, Kamiesberg, Kannaland, Kareeberg, Karoo, Khai-Ma, Kheis, King Sabate dalindyebo, Kopanong, Kou-Kamma, Kwa Sani, Ladysmith, Laingsburg, Lepele Nkupi, Lephalale, Lukhanji, Mafikeng, Mafube, Magareng, Makhado, Malaamulele, Malethswai, Malutia Mandeni, Mantsopa, Maquassi Hills, Masilonyana, Matatiela, Matjhabeng, Merafeng City, Messina, Mier, Mkhambathini, Modimolle, Mofutsanyane; Mogalakwena, Mohokare, Molopo,Mooi Mpofana, Mookgopong, Moqhaka, Moretele, Moses Kotane, Nala, Naledi, Namakwa dstrict, Ndlambe, Newcastle, Ngwathe, Nketoana, Phalaborwa, Phofung, Phokwane, Phumelela, Polokwane, Prince Albert; Renosterberg, Richmond, Rustenburg, Schweizer-Reneke, Setsotlo, Siyancuma, Siyanda District, Siyathemba, Sunday's River Valley, Thabazimbi, Thabo The KwaDukuza, Thembekihle, Thohoyandou; Tokologo, Tsantsabane, Tsolwana, Tswelopele, Ubuntu, Umlazi, Umsobomvu, Umtshezi, uPhongolo, Utrecht, West Rand District, Western District, Westonaria, Zeerust. "AREA C" means the metropolitan and local municipalities as contained in the table below and it applies to the minimum wage Tables 3 and 6. AREA C Metropolitan and local municipalities not elsewhere mentioned. Sectoral Determination 9: Wholesale and Retail Sector, South Africa Annexures The Annexures are available at the Dept of Labour web site at http://www.labour.gov.za The Annexures are three forms: · Certificate of Service · Attendance Register · Payslip