Certain rights in the Basic Conditions of Employment Act (BCEA) are fundamental and will not be able to be varied in terms of Section 49 of the BCEA. (These include the prohibition on employing child labour/reduction in protection for night work / the reduction in annual leave to less than two weeks / the reduction in entitlement to maternity leave / the reduction in entitlement to parental leave, adoption leave or commissioning leave / or reduction in entitlement to sick leave).

In collective agreements, for example, Bargaining Council Agreements, employees may agree to conditions that are different to conditions in the BCEA, as long as the agreement is consistent with the purpose of the BCEA and does not give them less protection than they had under the BCEA, nor reduce an employee’s annual leave (to less than 2 weeks), nor remove maternity leave or sick leave. (See S49(1) (a)–(f) of the BCEA).

Employees may be covered by the BCEA, but have terms and conditions of employment which vary from those in the BCEA. The BCEA allows for the following ways of varying basic conditions of employment:

• The individual employment contract between an employee and employer (although the scope for variation by this method is extremely limited)
• Collective bargaining and agreement at a bargaining council
• Sectoral Determinations
• The labour minister can make special exceptions

So, an employee who is covered by the BCEA has the conditions of employment as specified in the Act, unless:

• The employee has an individual agreement (employment contract) with the employer which is more favourable than the terms of the BCEA
• The employee is part of a collective agreement which has been agreed with a Trade Union and the employer
• There is a Sectoral Determination (like a Wage Determination) or a Ministerial exemption, which overrides the conditions in the BCEA.

(See Finding out an employee’s terms and conditions of employment)