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Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

National Bargaining Council for the Electrical Industry of South Africa

Extension of Consolidated Main Collective Agreement to Non-Parties

Part 1: Scope of Application, Definitions, General Terms and Conditions of Employment

30. Fixed Term Contracts

 

(1) The provisions of Section 198B of the Act are incorporated in this Agreement.

 

(2) This Clause does not apply to:
(i) Employees earning more than the Earnings threshold as published by the Minister of Labour from time to time in terms of Section 6(3) of the Basic Conditions of Employment Act (7511997) - [Earnings Threshold Determination].
(ii) Employers who employ fewer than ten employees.
(iii) Employers who employ under 50 people and whose businesses have been in operation for less than two years, unless the employer conducts more than one business or his business was formed by the division or dissolution of an existing business.

 

(3) An employee can be employed on a fixed-term contract or successive fixed-term contracts for longer than three months only if the nature of the work for which the employee is employed is of a limited or definite duration, or if the employer can demonstrate any other justifiable reason for fixing the term of the contract.

 

(4) A fixed-term contract for longer than 3 months shall only be justifiable if the employee:
(i) Is replacing another employee who is temporarily absent from work;
(ii) Is employed on account of a temporary increase in the volume of work which is not expected to endure beyond twelve months.
(iii) Is a student or recent graduate employed for the purpose of being trained or gaining work experience to enter a job or profession.
(iv) Is employed to work exclusively on a specific project which has a limited or defined duration. Notwithstanding this provision, an employer is permitted to move an employee from one site to another provided that there are justifiable reasons for doing so, namely, shortage of work, increase in the volume of work, and skills required. Provided further that the duration of the employee's contract does not extend beyond the agreed contract period, unless the parties have agreed in writing to extend the contract.
(v) Is a non-citizen who has been granted a work permit for a defined period.
(vi) Is employed to perform seasonal work.
(vii) Is employed for the purposes of an official public works scheme or similar public job creation scheme.
(viii) Is employed in a position funded by an external source for a limited period.
(ix) Has reached the normal or agreed -upon retirement age applicable in the employer's business.

 

(5) Employment on a fixed-term contract concluded or renewed in instances where the employer cannot prove that the work the employee is employed to do is of a limited or definite duration, or where the employer cannot demonstrate any justifiable reasons for making the contract a fixed-term contract, shall be deemed to be of an indefinite period.

 

(6) An offer to employ an employee on a fixed -term contract or to renew or extend a fixed-term contract must be in writing and the reasons for fixing the period of the contract must be stated.

 

(7) Employees employed on fixed-term contracts for longer than three months must not be treated less favourably than employees employed on a permanent basis and who perform the same or similar work, unless there is a justifiable reason for the different conditions.

 

(8) The employer must provide all employees with equal opportunities to apply for vacancies.

 

(9) Employers who employ people on fixed -term contracts to work exclusively on a specific project with a limited or defined duration exceeding 24 months must pay the employee, on expiry of the contract, one week's remuneration for each completed year of the contract, calculated in accordance with section 35 of the BCEA.

 

(10) However, should an employer offer an employee alternative employment with the same or any other employer and the employee refuses to accept such offer which is on the same or similar terms, such employee is not entitled to one week's remuneration.

 

(11) In cases where an employee is engaged on a fixed term contract, and such employee has not previously contributed to the Electrical Industry Pension/Provident Fund, the employer shall cover such employee only for the purposes of risk benefits, that is death, disability, funeral and sick pay, whilst employed on such fixed term contract: Provided this shall not apply to an employee who was previously a member of the Pension/Provident Fund and has not withdrawn from such Fund. Provided that should such employee be employed on a further fixed term contract with the same employer within 90 days of the termination of his original fixed term contract, the employer and employee shall contribute towards the employee's Pension/Provident Fund.

 

(12) In any proceedings, the employer bears the onus of proving that there was a justifiable reason for fixing the term of the contract and that the period was agreed to.