Can I deviate from the Basic Conditions of Employment Act?

Can I deviate from the Basic Conditions of Employment Act?

Author
5 min read
Employee or appoint someone

It’s important that you stay within the legal framework with your employment contracts.

You know there are certain basic conditions of employment stipulated in the Basic Conditions of Employment Act, 1997 (the “BCEA”). Some of these conditions are onerous and not exactly in line with the basis upon which you want to employ someone. The question that arises is whether you always need to comply with the basic conditions of employment or not?

Firstly, let’s look at when the BCEA will apply to the employer and employee relationship.

The BCEA, will generally apply to an employer and employee relationship, provided that the employee is not an independent contractor.

The only two exceptions stipulated in the BCEA are:

  • members of the State Security Agency;
  • unpaid volunteers working for an organisation serving a charitable purpose.

Whether the contract is only for a fixed period or is permanent is irrelevant when considering if the BCEA applies or not. To read more about the applicability of the BCEA on short fixed-term contracts, have a look at this article.

Going into more detail, section 4 of the BCEA states that the “basic conditions” as per the BCEA will always be included in the basic conditions of an employee’s contract unless:

  • any other law makes provision for a term that is more favourable to the employee;
  • the “basic condition” of employment has been replaced, varied or excluded in accordance with the provisions of the BCEA;
  • a term in the contract of employment is more favourable to the employee than the “basic condition” of employment.

In summary, the basic conditions of employment constitute the minimum protection that is provided to an employee and there are certain conditions that can be replaced, varied or excluded (if the BCEA specifically allows this).

So which conditions of employment will not necessarily always apply to the employment relationship:

The following sections of the BCEA have limited application -

Sections 6 to 18 (working time provisions)

These sections will not apply to the following employees:

  • senior managerial employees;
  • employees engaged as sales staff 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.

Section 1 of the BCEA defines a senior managerial employee as –

“an employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”

If the employee is not an employee as contemplate above, the employee’s annual earnings must be considered. 

If the earnings are in excess of an amount determined by the Minister, then certain provisions of the BCEA will not apply to the employer and employee relationship (unless you specifically include these provisions in the employment contract).

The new earnings threshold, effective from 1 March 2021, is R211,596.30. 

All employees earning in excess of R211,596.30 annually are excluded from the protection offered by the BCEA in terms of sections 9 (Ordinary hours of work), 10 (Overtime), 11 (Compressed working week), 12 (Averaging of hours of work), 14 (Meal intervals), 15 (Daily and weekly rest period), 16 (Pay for work on Sundays), 17(2) (Night work) and 18(3) (Public holidays).

Other provisions that will not necessarily apply if the employee works less than 24 hours a month:

Sections 19 to 27 - Leave

These sections do not apply to an employee who works less than 24 hours a month for an employer.

Sections 28 to 35 - Particulars of employment and remuneration

These sections do not apply to an employee who works less than 24 hours a month for an employer.

Sections 36 to 42 - Termination of employment

These sections do not apply to an employee who works less than 24 hours a month for an employer.

The docninja  contract generator will guide you through various aspects that you need to consider when entering into an employment contract and will also provide you with guidance on what can and cannot change in your contract - https://docninja.io/available-documents/document/117-employment-agreement/show