Chapter 4: The Legislation - Terms implied
from NMWA and BCEA
Areas of Focus:
Overview of minimum standards legislation
Introduction: The Sources of Terms &
Conditions of Employment
A clear goal of labour legislation is to promote fair terms and conditions of employment
•
and labour legislation seeks to do this in one of two ways:
1. Directly -> through the adaption of minimum standards legislation which lays down the
minimum standards of employment and prohibits any downward deviation from these
standards
a. Imposes a direct limitation on freedom to contract.
b. Namely through the National Minimum Wage Act (NMWA) and the Basic Conditions
of Employment Act (BCEA).
2. Indirectly -> by promoting collective bargaining through which trade unions try to
conclude collective agreements with employers regulating terms and conditions of
employment of their respective members.
• The concept of a floor of rights simply pertains to a foundation of rights in terms of basic
conditions and standards that are then improved, built upon or afforded more protection.
• National Minimum Wage Act (NMWA) -> from 2019, the goals of it were primarily to
improve the wages of the lowest paid workers and to protect workers from unreasonably
low wages
◦ The act does this through the following:
▪ Prescribing a national minimum wage
▪ Prohibiting employers from taking steps to undermine the effectiveness of
minimum wage
▪ Providing for the overriding effect of the act in relation to an employment contract,
collective agreement or sectoral determination.
▪ Providing limited exemptions from this obligation to employers
▪ Establishing a commission which reviews the national minimum wage level and
makes recommendations for adjustments.
◦ The Act, however, does not apply to:
▪ Members of the South African National Defence Force
▪ Members of the National Intelligence Agency
, ▪Members of the South African Secret Service
▪A volunteer, defined as someone who performs work for another without any
means of compensation or entitlement thereto.
◦ The national minimum wage has been set to Double Check!!!! as of ...
• The Basic Conditions of Employment Act -> the primary goal of this act is to give effect
to Section 23(1) of the Constitution by establishing and enforcing basic conditions of
employment
◦ But this also does not apply to all employees.
▪ The main exclusions:
• Independent Contractors
• Members of the State Security Agency
• Unpaid volunteers working for an organisation serving a charitable purpose.
• Some of the provisions of the Act(s) may be departed from by various parties, by
agreement, if the conditions of employment are more favourable to the employee than
provided for in the Act.
◦ Conditions must on the whole be more favourable towards the employee such as
through collective agreements reducing consecutive days of leave in return for a
higher wage.
Most Important Provisions of the BCEA
You can expect a 5 - 7 mark question in the test about these Sections and their
subparts
Chapter 2: Working Time
• There are some employees who are excluded from these provisions:
◦ Senior managerial employees
◦ Employees engaged as sales stall who travel to the premises of customers and who
regulate their own hours of work
◦ Employees who work less than 24 hours a month for an employer
• This Act regulates ordinary hours of work in the interests of safety of employees and
employees' family responsibilities.
• Section 9: Ordinary Hours of Work -> maximum ordinary hours are 45 hours per week
and nine hours per day if the employees work five days a week
◦ If the employee works more than five days, the maximum hours per day are eight
▪ May be extended (15 minutes per day) by agreement.
• Section 10: Overtime -> employees are entitled to be paid for overtime
◦ Employees may only be required to work overtime in accordance with an agreement
and for not more than 10 hours a week in overtime
◦ Remunerated at one-and-a-half times employee's normal remuneration or an
employer may grant paid time off of the equivalent time.
2
from NMWA and BCEA
Areas of Focus:
Overview of minimum standards legislation
Introduction: The Sources of Terms &
Conditions of Employment
A clear goal of labour legislation is to promote fair terms and conditions of employment
•
and labour legislation seeks to do this in one of two ways:
1. Directly -> through the adaption of minimum standards legislation which lays down the
minimum standards of employment and prohibits any downward deviation from these
standards
a. Imposes a direct limitation on freedom to contract.
b. Namely through the National Minimum Wage Act (NMWA) and the Basic Conditions
of Employment Act (BCEA).
2. Indirectly -> by promoting collective bargaining through which trade unions try to
conclude collective agreements with employers regulating terms and conditions of
employment of their respective members.
• The concept of a floor of rights simply pertains to a foundation of rights in terms of basic
conditions and standards that are then improved, built upon or afforded more protection.
• National Minimum Wage Act (NMWA) -> from 2019, the goals of it were primarily to
improve the wages of the lowest paid workers and to protect workers from unreasonably
low wages
◦ The act does this through the following:
▪ Prescribing a national minimum wage
▪ Prohibiting employers from taking steps to undermine the effectiveness of
minimum wage
▪ Providing for the overriding effect of the act in relation to an employment contract,
collective agreement or sectoral determination.
▪ Providing limited exemptions from this obligation to employers
▪ Establishing a commission which reviews the national minimum wage level and
makes recommendations for adjustments.
◦ The Act, however, does not apply to:
▪ Members of the South African National Defence Force
▪ Members of the National Intelligence Agency
, ▪Members of the South African Secret Service
▪A volunteer, defined as someone who performs work for another without any
means of compensation or entitlement thereto.
◦ The national minimum wage has been set to Double Check!!!! as of ...
• The Basic Conditions of Employment Act -> the primary goal of this act is to give effect
to Section 23(1) of the Constitution by establishing and enforcing basic conditions of
employment
◦ But this also does not apply to all employees.
▪ The main exclusions:
• Independent Contractors
• Members of the State Security Agency
• Unpaid volunteers working for an organisation serving a charitable purpose.
• Some of the provisions of the Act(s) may be departed from by various parties, by
agreement, if the conditions of employment are more favourable to the employee than
provided for in the Act.
◦ Conditions must on the whole be more favourable towards the employee such as
through collective agreements reducing consecutive days of leave in return for a
higher wage.
Most Important Provisions of the BCEA
You can expect a 5 - 7 mark question in the test about these Sections and their
subparts
Chapter 2: Working Time
• There are some employees who are excluded from these provisions:
◦ Senior managerial employees
◦ Employees engaged as sales stall who travel to the premises of customers and who
regulate their own hours of work
◦ Employees who work less than 24 hours a month for an employer
• This Act regulates ordinary hours of work in the interests of safety of employees and
employees' family responsibilities.
• Section 9: Ordinary Hours of Work -> maximum ordinary hours are 45 hours per week
and nine hours per day if the employees work five days a week
◦ If the employee works more than five days, the maximum hours per day are eight
▪ May be extended (15 minutes per day) by agreement.
• Section 10: Overtime -> employees are entitled to be paid for overtime
◦ Employees may only be required to work overtime in accordance with an agreement
and for not more than 10 hours a week in overtime
◦ Remunerated at one-and-a-half times employee's normal remuneration or an
employer may grant paid time off of the equivalent time.
2
