All employees are covered by the Basic Conditions of Employment Act (No. 75 of 1997) except the following:

• Members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service
• Unpaid voluntary employees who do work for a charitable organisation
• Employees who work for an employer for less than 24 hours a month
• Employees on vessels at sea where the Merchant Shipping Act (1951) is applicable

Certain special provisions apply to companies employing fewer than ten employees.

PEOPLE EARNING ABOVE A CERTAIN AMOUNT

If a person is earning a gross salary of more than R254 372 per year (or R21 198 per month) (referred to as the BCEA earnings threshold which increases at various intervals) then the following sections of the BCEA will not apply to them:

• Section 9: Limitations on ordinary hours of work
• Section 10: Overtime work and payment
• Section 11: Compressed working week
• Section 12: Averaging of hours of work
• Section 14: Provision of meal intervals
• Section 15: Daily and weekly rest period
• Section 16: Pay for work on Sundays
• Section 17: Night work
• Section 18(3): Public holidays (where an employee may work on a public holiday on which they would not have ordinarily worked) (See Summary of provisions in the BCEA).

PART-TIME, CASUAL AND TEMPORARY EMPLOYEES

A part-time employee is permanently employed but only works part of a working day or working week. A casual employee is employed on a short-term basis, but only works part of a working week. If they work less than 24 hours in a month the BCEA does not apply to them. An employee who works more than 24 hours during any month is now fully covered by the provisions of the BCEA including provisions for leave and sick pay, overtime and public holiday and Sunday rates.

A temporary employee is not permanently employed but only works for a specific length of time or until a specific job is completed. This is often referred to as a ‘fixed-term contract’ of employment.

An employer may try to circumvent a permanent contract of employment by taking on an employee in a ‘fixed-term’ capacity, but if the employee meets the definition of what an employee is, the CCMA will offer protection against unfair dismissal should this be required. An employer may try to avoid giving an employee a permanent contract of employment by continuously renewing their fixed-term contract but if an employee works for more than 3 months and earns below the earnings threshold in the BCEA of R21 198 per month, then the contract is seen to become permanent unless there is a justifiable reason to continue with the fixed-term contract. (See Fixed-term contracts; See Who is an employee?)

In most cases, part-time, casual and temporary employees will be entitled to the same benefits as other employees, but on a pro-rata basis. They are excluded from some provisions of the BCEA, for example, they are not entitled to Family Responsibility Leave unless they work on the contract for more than four months, and at least four days a week.

Generally, the temporary or casual employee will be entitled to one day annual leave for every 17 days worked and one day sick leave for every 26 days worked for the same employer.

PIECE WORK

Piece work means that an employee is not paid according to the hours that they work. The employee is paid for the number of items produced. For example, seasonal farm employees may be paid for the amount of fruit they pick provided they earn at least the minimum hourly or daily wage laid down for that industry or sector.

FREELANCE OR OUTSOURCING

An employer may pay someone who is not an employee in the company, to do work. This person is not an employee but is running their own small business and is often referred to as an independent contractor. The contractor is generally paid for producing an agreed level of work or providing a service and is not supervised or controlled by the employer. The independent contractor is not covered by the BCEA.

EXAMPLE

Sakumsi cuts patterns for dresses. He pays Trevor to sew the pieces together. Trevor works from his house. Trevor is not employed by Sakumsi, and Sakumsi does not have to make sure that Trevor’s pay and working conditions are according to the BCEA.