The object of the contract of work is the performance of a certain specified work for the production of a certain specified result. According to a contract of service the employee will typically be at the beck and call of the employer to render his personal services at the behest of the employer. The independent contractor, by way of contrast, is not obliged to perform the work himself or to produce the result himself, unless otherwise agreed upon.
He may avail himself of the labour of others as assistants or employees to perform the work or to assist him in the performance of work. Services to be rendered in terms of a contract of service are at the disposal of the employer who may in his own discretion subject of course to questions of repudiation decide whether or not he wants to have them rendered.
The independent contractor is bound to perform a certain specified work or produce a certain specified result within a time fixed by the contract of work or within a reasonable time where no time has been specified. The employee is subordinate to the will of the employer. He is obliged to obey the lawful commands, orders or instructions of the employer who has the right of supervising and controlling him by prescribing to him what work he has to do as well as the manner in which it has to be done.
The independent contractor, however, is notionally on a footing of equality with the employer. He is bound to produce in terms of his contract of work, not by the orders of the employer. Independent contractors are governed by the laws of contract and the specific contract under which they are working. As a result, they are not entitled to the benefits and protections afforded to employees by labour legislation.
Time periods There are no maximum time periods during which a person can be engaged as an employee or an independent contractor. There is, however, a distinction between indefinite contracts of employment and fixed-term contracts of employment. This will not apply if there is a justifiable reason for extending the fixed term contract beyond three months, such as temporary replacement of an employee who is absent from work, employment on account of an increase in the volume of work not expected to endure beyond 12 months and employment for seasonal work.
Employees who earn above the threshold can be employed for longer than three months if the employment is for a specified duration or for a specific purpose. However, constant renewal of such contracts may give rise to a claim for a legitimate expectation of indefinite employment,.
Recruitment 3. Are any grants or incentives available for employing people? Grants or incentives Employment Tax Incentive Act, 26 of potentially provides employers with a tax rebate for hiring workers between 18 and 29 years of age. The Employment Services Act, 4 of ESA provides for regulations to be published establishing employment schemes aimed at promoting the employment of young people and other vulnerable categories of people.
Draft regulations were published in December but they have not been made final. Filings UIF. The following categories of employee are exempt from this requirement:. Those working less than 24 hours a month for an employer. Learnerships the equivalent to apprentices. Foreign nationals working on a contract. Employers must make a monthly payment to the UIF on behalf of their employees, which consists of both:.
They must provide the Commissioner with an estimate of the number of employees they will employ in the upcoming financial year, and how much they will be paid. At the end of each financial year the employer must complete a return of earnings report, which must be submitted to the Commissioner.
Employers must withhold a percentage of the employees' monthly salary, which must be paid to SARS within seven days after each month end. Employers must also complete an annual reconciliation and provide this to SARS. The ESA makes provision that regulations can be published requiring employers to report on vacancies and the filling of positions. The regulations were published for public commentary in December but remain in draft format. Background checks 4.
Are there any restrictions or prohibitions on carrying out background checks in relation to applicants? Employers can access an employee's credit and criminal records with their consent. Under the Employment Equity Act, 55 of EEA employers and prospective employers are prohibited from discriminating against employees on unfair grounds.
As a result, employers should be mindful about what information they seek out. For example, employees are not generally obliged to disclose HIV status or pregnancy.
Permission to work 5. What prior approvals do foreign nationals require to work in your country? Visa Procedure for obtaining approval. There are a number of work visas that a foreign national can potentially obtain in order to work lawfully in South Africa. An employee can apply for one of the following types of work visa:. General work visa. Other required documents to support the visa application include:. Police clearance certificates. Proof that the employee has sufficient funds to survive in the country until they are paid a salary.
In the case of an intra-company visa, the applicant is required to make a cash deposit equivalent to the value of a return ticket. An employer can apply for a corporate visa, which allows them to hire a number of foreign national employees for a limited period of time.
The employer will need to both:. Demonstrate why they need to appoint non-South African citizens. Expiry and renewal. Critical skills visas are issued for a period not exceeding five years and Intra-company transfer visas can only be issued for a period not exceeding four years and cannot be renewed or extended.
The cost of a work visa is currently ZAR1, the cost is the same for all the types of work visa. Time frame.
The procedure to process a visa application usually takes a minimum of eight to ten weeks. Section 49 3 of the Immigration Act, 13 of provides that anyone who knowingly employs an illegal foreign national will be guilty of an offence and liable, on conviction, to a fine or to imprisonment not exceeding one year.
The Immigration Act does not expressly provide for maximum fines, but these are generally applied similarly to administrative fines, which provide for a maximum fine of ZAR8, An employee whose work permit has expired cannot carry on working for their employer. This does not, however, give employers an automatic right to immediately terminate the employment relationship without following due process provided for in terms of the South African labour legislation.
Such employees enjoy the same protections under the legislation, regardless of their legal status. An employee who works without the correct visa risks detention and deportation. Whether the employee did so knowingly or not does not materially have an impact on the outcome.
It is always best practice to apply for an extension of a work permit at least 90 days before it expires to avoid instances where an employee is unable to render services to an employer by virtue of the expiry of the work permit. Restrictions on managers and directors 6. Are there any restrictions on who can be a manager or company director?
Age restrictions Children under the age of 15 or under the minimum school-leaving age which is 15 or the end of the ninth grade, whichever comes first cannot be employed. There are no additional requirements for a manager or director. Nationality restrictions There are no statutorily prescribed nationality restrictions.
Other restrictions The following persons are disqualified from being the directors of a company:. Unrehabilitated insolvents. Persons removed from an office of trust for misconduct involving dishonesty. Persons who have been convicted of an offence involving dishonesty. Persons who have been convicted of an offence set out in the companies' legislation. Regulation of the employment relationship 7.
How is the employment relationship governed and regulated? Written employment contract All employers who employ more than five employees are required by law to set out in writing certain particulars in respect of employees who work 24 hours or more per month.
These particulars include details on:. The employer's full details. The amount of the wage or salary and how it will be paid. Notice period for termination of the contract. The documents which form part of the employment contract. There are additionally certain employment contracts which are required by various statutes to be in writing.
Implied terms There are a number of terms, relating to basic conditions of employment, which are implied by law into the contract of any employee who earns below the statutory earnings threshold. Further, certain collective agreements or sectoral determinations can imply terms into employment contracts. Collective agreements Collective agreements are automatically binding upon the parties to an employment contract. What are the main points to consider if an employer wants to unilaterally change the terms and conditions of employment?
An employer cannot unilaterally change the terms and conditions of employment: the agreement of the employee is required. The employee's agreement should be recorded in writing. Minimum wage 9. Is there a national or regional minimum wage?
The effect of this is that every worker in respect of whom the NMW applies is entitled to be paid at least the national minimum wage by his or her employer. Employers can apply for an exemption from paying the national minimum wage in certain circumstances. Non-compliance with the NMW can result in fines being imposed on the employer or referrals for claims for underpayment to the CCMA or appropriate court. Section 32 of the BCEA requires payment to be made in South African rands, and must be in cash, by cheque or by direct deposit.
Payment must be made seven days after the end of the period for which remuneration is payable. Restrictions on working time Are there restrictions on working hours? Can an employee opt out on either an individual or collective basis? The provisions of Chapter 2 only apply to employees earning less than the earnings threshold, currently ZAR, Employees cannot opt out of these provisions. Eight hours per day for employees who work more than five days per week.
Overtime can only be worked by agreement with the employee and is limited to ten hours per week. Work on Sundays and Public Holidays can take place only with the employee's agreement. Arrangements to limit overtime, such as compressed working hours and the averaging of working hours, are subject to the employee's agreement.
Rest breaks Employees are entitled to a full hour lunch break after working continuously for five hours, or a minute lunch break by agreement. Employees are further entitled to a hour daily break between shifts, and a hour weekly break, which should fall over a Sunday unless otherwise agreed.
Shift workers Shift workers are not generally treated differently from normal employees. Where night work is undertaken between 6pm to 6am , employees must be compensated with a shift allowance or reduction of working hours, and transport must be available between the employee's home and the workplace. Holiday entitlement Is there a minimum paid holiday entitlement? Minimum paid holiday entitlement In a cycle of 12 months, an employee is entitled to at least 21 consecutive days' annual leave on full remuneration.
Public holidays Public holidays are regulated by the Public Holidays Act, 36 of There are 12 public holidays in South Africa. If a public holiday falls on a Sunday, the following Monday is also a public holiday. Public holidays are not included in the leave entitlement: an employee must be paid for these days over and above their annual leave.
An employee must be paid at least double their usual rate for working on a public holiday. Illness and injury of employees What rights do employees have to time off in the case of illness or injury? Are they entitled to sick pay during this time off? Who pays the sick pay and, if the employer, can it recover any of the cost from the government?
A sick leave cycle is 36 months from the commencement of employment or the end of the previous cycle. Employees are not entitled to take unpaid sick leave for the employees' entitlement to paid sick leave, see below, Entitlement to paid time off.
Entitlement to paid time off During sick leave an employee is entitled to paid sick leave equal to the number of days that he would usually have worked for a duration of up to six weeks. However, during the first six months of employment, an employee is only entitled to one day per 26 days worked. Legislative authority is vested nationally in Parliament [Section 44 of the Constitution], whilst the provincial legislative authority vests in the provincial legislatures [Section of the Constitution].
The judiciary is responsible for upholding the laws of the country and for ensuring that all laws passed by Parliament comply with the Constitution. The judiciary is composed of various courts, judges and magistrates.
Judicial authority is vested in the courts. The courts of the land are independent and only subject to the laws of the constitution. The President, after consulting the Judicial Services Commission and the leaders of the parties within the national assembly appoints the President and Deputy President of the Constitutional Court.
The Judicial Services Commission prepares lists of recommendation, which is then used by the President to appoint the other nine judges of the Constitutional Court. The President appoints all the other Judges in the other courts on the advice of the Judicial Services Commission. The following labour rights are enshrined in the Constitution:. Prior to the discovery of gold and diamonds in South Africa, the economy could by and large be described as agrarian, with the main economic activity being agriculture.
The relationship between employers and domestic workers and farm workers was governed by various Acts, including the Master and Servants Act 15 of When gold and diamonds were discovered, mining activity in South Africa rapidly increased. The booming mining industry brought with it an influx of labour and workers to the mines. As the mining industry developed, the difference in political power between whites and blacks became entrenched as trade unions, catering largely for white workers, mobilised increasingly on the basis of race.
In , the Mines and Works Act was passed which reserved various types of work for white workers only. This era was very turbulent and a number of strikes, with the aim of securing the position of white workers on the mines, took place. After the general strike of , martial law was declared and trade union leaders were deported from South Africa. The mines responded by restructuring.
This led to a number of white workers being retrenched, which in turn led to the abolition of the ratio between skilled white workers and unskilled black workers on the mines.
This situation gave rise to the strike, one of the watershed moments in South African labour history. The result of this strike was the passing of the Industrial Conciliation Act in This Act was the direct forefather of the Industrial Conciliation Act of , which was later, renamed the Labour Relations Act of In terms of this Act, trade unions representing white workers were accorded recognition, while a separate system for Black workers were created.
In , the National Party came into power, which saw the birth of Afrikaner Nationalism. In , the Suppression of Communism Act was passed which led to the large-scale repression of union-activists. This turbulence led to the amendment of the Industrial Conciliation Act, in order to ensure tougher controls over black workers. The Wiehahn Commission of Inquiry was established in to investigate the labour situation in South Africa.
The resultant report of the Commission went on to change the face of South African labour relations and labour law. The most consequential recommendation made by the Commission was the extension of freedom of association to cover all persons, irrespective of race or sex. The result was that trade unions representing Black workers were now able to make use of the machinery of the Labour Relations Act of The period between saw the birth of the new democratic South Africa.
In , the Interim Constitution, Act of , came into effect. The Act totally changed the constitutional basis of the South African legal system and it became clear that the Labour Relations Act of was not in line with the new constitutional order. In , the Department of Labour appointed a Ministerial Legal Task Team to draft new labour legislation and the Labour Relations Act 66 of was born and came into effect on 11 November The Act heralded a new era in South African labour law.
The main employment law statutes of South Africa are the following:. Employment protection legislation applies to all employees who ordinarily work in South Africa. Therefore, the legislation also covers employees who work partly outside South Africa and partly inside South Africa and outside the country. It also applies regardless of the stated governing law of any employment contract or the nationalities of either the employee or the employer.
It is not possible for an employee to contract out of statutory employment protection unless the legislation specifically permits it and then, only to the extent permissible in terms of the legislation.
These codes of practice, although often merely providing guidelines and accordingly not always being of direct legal effect, are taken into account by the Labour Courts in deciding whether or not an employer has breached statutory employment regulations. Additionally, there are numerous laws implementing health and safety regulations. Unlike the law in certain other countries, collective agreements are normally legally enforceable as between employers and trade unions.
The starting point should be that a written contract of employment is not strictly a necessary requirement for the validity of an employment relationship.
A comprehensive contract also has the benefit of being signed by both parties and is therefore legally binding. If and when any of the above details change, the employee is to be notified of the change and be given a copy of the change. Fixed-term contracts: The duration of the contract is clearly specified between the parties. The contract will endure for the specified period, or upon the happening of a particular event or until a particular task has been completed.
Unless otherwise agreed, such a contract cannot be terminated during its currency without good cause, unless the parties have agreed otherwise. The LRA expressly provides that non-renewal of a fixed term contract is equivalent to a dismissal in circumstances where the employee expected the employer to renew it on the same or similar terms but the employer either failed to renew the contract at all or offered to renew it on less favourable terms [Section LRA].
Indefinite-period contracts: The duration of the contract is not specified by the parties. The contract will endure until:. It is quite common that employers engage employees for a probationary period, which may be negotiated and stipulated in the contract of employment.
After expiry of the probationary period, the employer is entitled to decide whether to retain the services of the employee on a permanent basis. The probationary period can be extended, in suitable circumstances. The Code also states that following termination of the probationary period, probationary employees should not be dismissed unless they have been given appropriate remedial treatment and they have been allowed a reasonable period for improvement but have failed to improve their performance.
The concept of unfair dismissal is a right created by statute and contained in the LRA. Chapter VIII of the LRA, along with an accompanying code of practice, has made a large contribution to systematising and clarifying this important area of South African employment law.
Unfair dismissals now fall into four categories:. Besides these substantive grounds, dismissal will also be unfair where it is not effected in accordance with a fair procedure. Whilst there does exist certain residual common law rights arising out of breach of contract which may be proceeded with by an employee to the High Court of South Africa, the exercise of these rights is rare and the relevance to EPL liability issues extremely limited.
By far the vast majority of cases arise out of a breach of statutory rights and obligations. The statutory rights may relate to the following issues:. In addition the employer must prove that the dismissal was effected in accordance with a fair procedure. If an unfair dismissal claim succeeds the CCMA has a choice of remedies. The commissioner may:. The primary remedy applied by the CCMA in respect of a dismissal which is substantively fair is to order reinstatement or re-employment.
There are certain limits on compensation. The Labour Appeal Court has held that compensation arises out of statute and does not relate to patrimonial loss.
The Labour Courts have a discretion on whether compensation should be awarded or not. If the Labour Courts decide that the case is such that compensation should be awarded, they have no discretion in respect of the amount. Compensation must be awarded from the date of dismissal to the date of adjudication, subject to a maximum of 12 months compensation.
This has serious ramifications for procedurally unfair dismissals. In most instances, other than cases of trivial procedural deficiencies, this will result in 12 months compensation being awarded to the employee for procedural unfairness because of the inherent delays in having such matters heard. In the event that a party can establish that the delay is due to the fault of the other party in not expeditiously pursuing his or her remedies, the court is empowered to take such delay into account in calculating compensation.
The working hours provisions do also not apply to sales staff who travel to customers and regulate their own hours, or to employees who work less than 24 hours per month.
Save for the exceptions outlined above, the working hours of all other employees must be regulated in accordance with the BCEA and cannot be contracted out of or excluded. Ordinary hours of work i. For employees who work a 6-day week, it is 8 hours per day. Any additional hours will be considered overtime for which a specified amount of additional remuneration is prescribed.
Overtime is limited to a total of 10 hours per week and then too, may not exceed 3 hours of overtime per day. Overtime work must be paid at no less than 1. The BCEA does recognize a certain amount of flexibility in arranging shifts and work times. These are however also regulated — e. It may however only be done in terms of a 5-day week, and with regard to the statutory daily rest periods.
Averaging can however only be done in terms of a collective agreement i. A meal interval of at least one hour is compulsory for employees who work more than 5 continuous hours. The meal interval can be reduced to 30 minutes by written agreement e.
An employer must allow an employee a daily rest period of at least 12 consecutive hours between ending and restarting work. There is also a compulsory weekly rest period of at least 36 hours. The rest period must include a Sunday unless otherwise agreed. There is some flexibility permitted and it would be advisable to include such issues in the contract of employment. Employees can only be required to work on a Sunday or a public holiday where they have agreed to it. Paid time off may be agreed to instead of additional payment.
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