1. Minimum Working Conditions
Minimum conditions of employment are regulated by the BCEA. The BCEA applies to all employers and employees except ‘soldiers and spies’ and unpaid volunteers working for charity. The BCEA regulates working time, leave, particulars of employment and the keeping of records regarding remuneration, termination of employment (notice and severance pay), and the prohibition of child and forced labour. A bargaining council comprises representative employers and unions in the industry concerned. In addition, the Minister may make sectoral determinations setting basic conditions for a specific sector and area, a number of which have already been made.
There is no general minimum wage that applies to employees. However, minimum wages have been set for certain sectors and industries. This is done through either sectoral determinations issued by the Minister (e.g., farm workers), or bargaining council agreements (e.g., in the metal and engineering industries). The minimum wage will differ from sector to sector, and also varies by category of employees within the industry in question. Sometimes minimum wages differentiate between geographical areas, with a higher minimum for urban and a lower minimum for rural areas. Negotiations towards establishing a national minimum wage are ongoing amongst social partners (government, labour and business) in a national forum.
3. Maximum Working Week
Certain minimum standards are set in the BCEA for hours of work and overtime for employees earning below the BCEA Earnings Threshold. Sectoral determinations and bargaining council collective agreements for specific industries also regulate work hours. Generally, no employee may work more than forty-five ordinary hours a week and nine hours a day if he or she works a five-day week, or eight hours a day if he or she works a six-day week. Total working hours may not exceed twelve hours a day. Wage regulating measures specific to industries can have different provisions regulating working hours.
Employees earning below the BCEA earnings threshold are subject to specific overtime rules. Work done on Sundays must be remunerated at double the normal rate for each hour worked by the employee, or at time and a half if the employee ordinarily works on a Sunday.
Employers cannot require employees to work on public holidays, unless by agreement.
Under the BCEA, employees who work twenty-four hours or more per month are entitled to a minimum of twenty-one consecutive days (i.e., three weeks) of paid leave per annual leave cycle of twelve months. Pay for annual leave must be based on the employee’s normal remuneration.
In some industries (e.g., construction) there is an annual shutdown period from mid-December to mid-January, during which employees are required to take their annual leave. The timing of when annual leave is taken is subject to agreement between the parties, failing which it is the employer’s prerogative to direct when leave must be taken.
6. Employer’s Obligation to Provide a Healthy and Safe Workplace
Health and safety in the workplace is primarily regulated by OHSA. However, certain industries, such as mining, have specialized health and safety legislation. All employees have a common law right to a safe working environment. OHSA supplements this right and protects employees and all persons present at a workplace. Further, the obligations imposed under OHSA apply to the employer’s own premises and any other place where the employees are required to perform their functions.