A contract of employment is probably one of the most frequently used contracts. The fundamental employment conditions are specifically mentioned in the Basic Conditions of Employment Act, 1997 (“the BCEA”), and broadly covered in the Labour Relations Act, 1995 (“the LRA”).
When it comes to the field of labour law and employment conditions the BCEA sets the minimum threshold of conditions. What this means is that employment contracts must comply with and contain the BCEA provisions. The employer may elect to be more generous than the BCEA provisions but may under no circumstances be more onerous than the BCEA. For example, the BCEA mentions that an employee who works continuously for more than five hours is entitled to a meal interval of at least one continuous hour – here an employer cannot decide to give a lunch break of 30 minutes nor can they reprimand an employee for taking an hour lunch break. If the employment contract contains a provision which contravenes the BCEA then that provision is deemed void (not the entire contract) and the respective term in the BCEA is deemed to be automatically inserted.
Keeping this in mind, we now look at some of the basic conditions of an employment contract. The reason we enter into contracts is to be bound by them, to have consensus and legal certainty about what each of the parties are required to perform and the consequences should there be non-performance - an employment contract is no different. The primary terms which need to be established in an employment contract are who the employer is, who the employee is, and the specific job title of the employee. A comprehensive job description setting out the person’s role in the company and their respective obligations is imperative along with their compensation.
There are other provisions which, according to the BCEA, need to be clearly stipulated, these include: the notice periods in which the contract must be terminated by either party; if the employee is serving a probation period, what their working hours are, how they will be remunerated (generally and for overtime) and if there are any deductions and other benefits to which they are entitled, conditions of overtime work, and the various leaves which they are entitled to.
An interesting condition to note is that an employee may legally not work for more than nine hours on any day if the employee works five days or less a week; or eight hours on any day if the employee works on more than five days in a week - lunch breaks are not included in this calculation. Another notable condition is in respect of maximum daily overtime, which is not to exceed three hours a day and a total of ten hours a week. Officially, work on Sundays is not compulsory, but can be agreed on by the parties if it’s for the best interest of the company and the employee from time to time.
Should you have any questions about whether your employment contract is compliant with the BCEA and other legislation or wish to set up compliant employment contracts it is best to seek professional legal assistance as this may save you a trip to the Commission for Conciliation, Mediation and Arbitration (CCMA).
For further information and assistance on Employment Contract Basics, please contact Myers Attorneys on 011 346 2422 or reception@myersattorneys.co.za. You can also visit our website at www.myersattorneys.co.za