The Basic Conditions of Employment Amendment Act, No. 20 of 2013 (Amendment Act), published in the Government Gazette on 9 December 2013, came into force yesterday, 1 September 2014.
Noteworthy amendments include:
- prohibiting conduct by employers relating to accepting payment from their employees;
- extending the scope of the protection both on the prohibition of work by children, and the regulation of work by children;
- extending the Minister of Labour's powers regarding sectoral determinations;
- placing considerable limitations on employers' rights in respect of compliance orders;
- extending the jurisdiction of the Labour Court; and
- increasing penalties for non-compliance with various provisions of the Act.
Certain of the amendments are highlighted below.
Prohibited conduct by employers
New section 33A prohibits employers from requiring or accepting any payment in return for employing or allocating work to an employee or potential employee, or from requiring an employee or potential employee to purchase goods or services from the employer or a business or person nominated by the employer.
There is, however, an important exception. This exception permits employment or collective agreements to provide that employees are required to participate in a scheme involving the purchase of goods, products or services, provided that:
- the purchase is not prohibited by any other law, and
- the employee receives a financial benefit, or
- the price of the goods or services provided to the employees is fair and reasonable.
The exception would encompass, and therefore exempt, any compulsory employee benefit schemes (such as medical aid schemes and pension or provident fund membership) from the operation of the new section.
Protection of children
The protection of children contained within section 43 of the Act is extended beyond the employer of such children to incorporate anyone (which includes a parent) who requires or permits a child to work. All the sections in the Act dealing with the protection of children are extended to incorporate work by children, rather than mere employment of children.
Amended section 55 of the Act entitles the Minister of Labour to publish a sectoral determination that applies to employers and employees who are not covered by any other current sectoral determination.
It also provides for the Minister to establish the threshold of representativeness at which a trade union will automatically acquire the organisational rights contained in sections 12 and 13 of the Labour Relations Act, No. 66 of 1995 in respect of all workplaces covered by any sectoral determination made by the Minister.
The rights of an employer to object to a compliance order, and appeal to the Labour Court against a finding of the Director-General of the Department of Labour, have been repealed.
In its stead, the compliance order itself shall set out a date by which the employer may make representations to the Department of Labour, or the Labour Court. If the compliance order is not complied with by the employer, it may be made an order of the Labour Court without further reference to the employer.
It is vital that employers immediately familiarise themselves with the changes brought about by the Amendment Act to ensure their compliance with the law and to avoid the serious consequences of non-compliance.