Clients often ask me to explain what is deemed important in an employment contract or what builds up to a contract, using simple terms. Traditionally a contract must just include the names of employer and employee, position or type of work, duration and salary, or else it would be that the employer verbally informs the employee to come and work for them and the employer will pay them a wage/salary per brown envelope. So, in this article I will elaborate on chapter 4 of the BCEA “Particulars of employment and remuneration”, and impart general comments in ().

Section 28 – APPLICATION OF THIS CHAPTER

(1) This chapter does not apply to an employee who works less than 24 hours a month for an

employer.

(2) Sections 29(1)(n), (o) and (p), 30, 31 and 33 do not apply to:

(a) an employer who employs fewer than five employees; and

(b) the employment of a domestic worker.

(The law only states that this chapter does not apply to employees working less 24 hours per month, for example once-off workers who render a service and get paid immediately after or a Gardener / Cleaner who works from 6am to 9am and are paid afterwards once a month for services/ days they provided).

Section 29 – WRITTEN PARTICULARS OF EMPLOYMENT

(1) An employer must supply an employee, when the employee commences employment, with

the following particulars in writing:

(a) The full name and address of the employer;

(b) The name and occupation of the employee, or a brief description of the work for which the

employee is employed;

(c) The place of work, and where the employee is required or permitted to work at;

(d) The date on which the employment begins work for the employer;

(e) The employee’s ordinary hours of work and days of work;

( f) The employee’s wage or rate and method of calculating wage;

(g) The rate of pay for overtime work;

(h) Any other cash payments that the employee is entitled to;

(i ) Any payment in kind that the employee is entitled to and the value of the payment in kind

(j ) How frequently remuneration will be paid;

(k) Any deductions to be made from the employee’s remuneration;

(l ) The leave to which the employee is entitled;

(m) The period of notice required to terminate employment, or if employment is for specified

period, the date when employment is to terminate;

(n) A description of any council or sectorial determination which covers the employer’s

business;

(o) Any period of employment with a previous employer that counts towards the employee’s

period of employment;

(p) A list of any other documents that form part of the contract of employment, indicating a

place that is reasonably accessible to the employee where a copy of each may be obtained.

(2) When any matter listed in subsection (1) changes:

(a) The written particulars must be revised to reflect the change; and

(b) The employee must be supplied with a copy of the document reflecting the change.

(3) If an employee is not able to understand the written particulars, the employer must

ensure that they are explained to the employee in a language and in a manner that the

employee understands.

(4) Written particulars in terms of this section must be kept by the employer for a period of

three years after the termination of employment.

(An employment contract is a covenant between an employer and employee, that each party will perform what is expected of them. Therefor, it is very important to ensure that all details regarding the contract of employment are clearly stated. Each party must know what is expected of them and who they will be working for, for how long and what type of services they will render and of course how much remuneration they will receive for their services. Both parties should have copies as proof. Contracts of employment often differ in degrees of complexity, for instance the nature and remuneration of the specific position as a Domestic Lady will not have the same clauses in her Contract of employment like a CEO of a massive corporation would).

Section 30 – INFORMING EMPLOYEES OF THEIR RIGHTS

An employer must display at the workplace, where it can be read by employees, a statement in the prescribed form of the employee’s rights under this Act in the official 10 languages which are spoken in the workplace.

(We live in a free society; where normal citizens of South Africa have human rights, it is also imperative that employers must inform the employee of their right s as well, to avoid unfair labour practices).

Section 31 – KEEPING RECORDS

(1) Every employer must keep a record containing at least the following information:

(a) the employee’s name and occupation;

(b) the time worked by each employee;

(c) the remuneration paid to each employee;

(d) the date of birth of any employee under 18 years of age: and

(e) any other prescribed information.

(2) A record in terms of subsection (1) must be kept by the employer for a period of three years

from the date of the last entry in the record.

(3) No person may make a false entry in a record maintained in terms of subsection (1).

(4) An employer who keeps a record in terms of this section is not required to keep any other

record of time worked and remuneration paid as required by any other employment law.

(nothing much to add here except that it is a good thing to have files (hard or soft copy) for each employee where the above is included).

Section 32 – PAYMENT OF REMUNERATION

(1) An employer must pay to an employee any remuneration that is paid in money:

(a) in South African currency;

(b) daily, weekly, fortnightly or monthly; and

(c) in cash, by cheque or by direct deposit into an account designated by the employee.

(2) Any remuneration paid in cash or by cheque must be given to each employee:

(a) at the workplace or at a place agreed to by the employee;

(b) during the employee’s working hours or within 15 minutes of the commencement or conclusion

of those hours; and

(c) in a sealed envelope which becomes the property of the employee.

(3) An employer must pay remuneration not later than seven days after:

(a) the completion of the period for which the remuneration is payable; or

(b) the termination of the contract of employment.

(4) Subsection (3)(b) does not apply to any pension or provident fund payment to an employee that is made in terms of the rules of the fund.

(Imagine an employee had provided service to the employer and was not remunerated – the implications of such might cause the employee discomfort, stress, lack of focus, burnout, strikes, and communication breakdown. Employees need to me motivated through remuneration for their services using whatever method of payment as agreed and the employer must specify the salary that they will be getting and remuneration date).

Section 33 – INFORMATION ABOUT REMUNERATION

(1) An employer must give an employee the following information in writing on each day the

employee is paid:

(a) the employer’s name and address;

(b) the employee’s name and occupation;

(c) the period for which the payment is made;

(d) the employee’s remuneration in money;

(e) the amount and purpose of any deduction made from the remuneration;

(f) the actual amount paid to the employee; and

(g) if relevant to the calculation of that employee’s remuneration-

(i) the employee’s rate of remuneration and overtime rate;

(ii) the number of ordinary and overtime hours worked by the employee during the period for which the payment is made;

(iii) the number of hours worked by the employee on a Sunday or public holiday during that period; and

(iv) if an agreement to average working time has been concluded in terms of section 12, the total number of ordinary and overtime hours worked by the employee in the period of averaging.

(2) The written information required in terms of subsection (1) must be given to each employee-

(a) at the workplace or at a place agreed to by the employee; and

(b) during the employee’s ordinary working hours or within 15 minutes of the commencement or conclusion of those hours.

(this is more commonly known as the Payslip and what information should be included on same)

Section 34 – DEDUCTIONS AND OTHER ACTS CONCERNING REMUNERATION

(1) An employer may not make any deduction from an employee’s remuneration unless-

(a) subject to subsection (2), the employee in writing agrees to the deduction in respect of a debt

specified in the agreement; or

(b) the deduction is required or permitted in terms of a law, collective agreement, court order or

arbitration award.

(2) A deduction in terms of subsection (1) (a) may be made to reimburse an employer for loss or

damage only if—

(a) the loss or damage occurred in the course of employment and was due to the fault of the

employee;

(b) the employer has followed a fair procedure and has given the employee a reasonable

opportunity to show why the deductions should not be made;

(c) the total amount of the debt does not exceed the actual amount of the loss or damage; and

(d) the total deductions from the employee’s remuneration in terms of this subsection do not

exceed one-quarter of the employee’s remuneration in money.

(3) A deduction in terms of subsection (1) (a) in respect of any goods purchased by the employee

must specify the nature and quantity of the goods.

(4) An employer who deducts an amount from an employee’s remuneration in terms of subsection

(1) for payment to another person must pay the amount to the person in accordance with the

time period and other requirements specified in the agreement, Law, court order or arbitration

award.

(5) An employer may not require or permit an employee to-

(a) repay any remuneration except for overpayments previously made by the employer resulting

from an error in calculating the employee’s remuneration; or

(b) acknowledge receipt of an amount greater than the remuneration actually received.

(Section 30 stressed that: “employees must be informed of their rights” Section 33 emphasized “information about remuneration”. It would be unfair for the employer to make deductions from an employee’s salary without their consent. An employer must inform the employee about any deductions that he/she will incur, and the employee must sign a consent form in a case of perhaps any incurred debt to the employer because of the employee’s negligence or damage, goods bought, money borrowed etc., unless deductions are such as PAYE / UIF, which are mandatory).

Section 35 – CALCULATION OF REMUNERATION AND WAGES

(1) An employee’s wage is calculated by reference to the number of hours the employee ordinarily

works.

(2) For the purposes of calculating the wage of an employee by time an employee is deemed

ordinarily to work—

(a) 45 hours in a week, unless the employee ordinarily works a lesser number of hours in a week;

(b) nine hours in a day, or seven and a half hours in the case of an employee who works for more

than five days a week, or the number of hours that an employee works in a day in terms of an

agreement concluded in accordance with section 11, unless the employee ordinarily works a

lesser number of hours in a day.

(3) An employee’s monthly remuneration or wage is four and one-third times the employee’s

weekly remuneration or wage, respectively.

(4) If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis other

than time or if an employee’s remuneration or wage fluctuates significantly from period to

period, any payment to that employee in terms of this Act must be calculated by reference to

the employee’s remuneration or wage during;

(a) the preceding 13 weeks; or

(b) if the employee has been in employment for a shorter period, that period

(5) For the purposes of calculating an employee’s annual leave pay in terms of section. 2.1, notice pay in terms of section 38 or severance pay in terms of section 41 an employee’s remuneration

(a) includes the cash value of any payment in kind that forms part of the employee’s remuneration unless the employee receives that payment in kind; but

(b) Excludes—

(i) gratuities;

(ii) allowances paid to an employee for the purposes of enabling an employee to work; and

(iii) any discretionary payments not related to the employee’s hours of work or work performance.

(Whether and employee works 45 hours a week or 40 hours a week it is very significant that they are aware of what they should be earning per hour, per day and per month.

If an employee is absent from work for 1 day without notifying the employer or submitting proof of their whereabouts, most of the time ‘no work no pay’ rule applies, which means 8 hours will be deducted off their salary by the employer – such calculations should be clearly stated on the employee payslip as to how the employer arrived to such.

When dealing with employee working overtime, it should be clearly stated that it was calculated at 1.5 (or 2x on a public holiday or Sunday) or more hours are discussed.

Clients ask where we get the calculations and why – the above is the answer as it gives you the methods/ formulas to calculate same).

I hope that the above will provide guidance in terms of which particulars are deemed to be important when dealing with employees’ contracts of employment and remunerations and that employers and employees take cognise of the above, as set out in the Act.

Please contact us for any further detail or clarification and any input or assistance on labour-related matters in your business.