Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997)

Schedules

Schedule Three : Transitional Provisions

Purchase

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).