It is often found by practitioners in the field of labour relations and human resource management, that employers disregard the Basic Conditions of Employment Act, Act 75 of 1997 (referred to as the “BCEA”).

The severity of certain breaches of the BCEA is generally not well known. In this article two areas, which are so significant as to justify imprisonment as a penalty, are discussed.

The purpose of the BCEA is to advance economic development and social justice.  It does this by giving effect to the right to fair labour practices referred to in section 23(1) of the Constitution.  It establishes and enforces basic conditions of employment and furthermore regulates the variation thereof, in compliance with the obligations of South Africa as a member state of the International Labour Organisation.

The section of the Constitution referred to above determines that ‘everyone’ has the right to fair labour practices. ‘Everyone’ does not only refer to employees, but also to employers, job seekers, children and the elderly. This is therefore intended to be an inclusive interpretation.

The first relevant section of the BCEA which, if breached, justifies a maximum term of three years of imprisonment, is section 33A, inserted during an amendment of the BCEA on 9 December 2013.  This section in 1(a) and (b) prohibits an employer to require or to accept any payment by or on behalf of an employee, or potential employee, in respect of employment, the allocation of work, and / or to purchase any goods, products, or services from someone nominated by the employer. The exception provided for is that a contract or collective agreement may provide for an employee to participate in a scheme to purchase goods and services if the purchase is not prohibited by law, the employee receives financial benefit, and the price is fair and reasonable.

The next relevant section is section 43, which deals with the prohibition of work by children. This section was included in the original 1997 BCEA, but changed in an important way, during the 2013 amendment.

The original section prohibited employment of a child.  However, that was replaced by ‘must not require or permit’ a child ‘to work’.  This prohibition applies to children under the age of 15 years or is under the school leaving age. 

The BCEA further provides in subsection (2) that a person must not require or permit a child to perform any work or to provide any services that are inappropriate for a person of that age and that places at risk the child’s well-being, education, etc.

Even if a person thought they were doing a child a favour by giving them work to do, it would be absolutely illegal to do so. The wording of this section does not provide any exceptions to the prohibition of work by children.

The practices which this section of the BCEA attempts to prevent, should be a major concern to all South Africans.  The Report on the 2019 Findings on the worst forms of Child Labour issued by the Bureau of International Labor Affairs, reports that children in South Africa engage in the worst forms of child labour. These includes commercial sexual exploitation and forced begging.  Furthermore, domestic work, garbage scavenging, and street vending is mentioned as prevalent child labour activities.

The labour inspectors of the Department of Employment and Labour, reported during 2019 that they found 15 child labour violations.  However,  it is common to see children begging at traffic crossings, shopping malls, churches, etc. The question should be asked how the labour inspectors intend to deal with this unfortunately growing trend.

It is imperative for South African employers to comply with these, and the other, provisions of the BCEA.  Employers (and the general public) should therefore be very strict in the application of these provisions.

Should you require assistance in this area or wish to comment on this article, please contact us.