Basic Conditions of Employment

We take a little box of matches for granted, but the invention and development of the ‘safety match’ were surrounded by an entire industry that was not exactly safe. In fact, it was downright lethal – but that is not because of anything to do with igniting fires or things exploding.

‘Phossy jaw’, as it came to be known, was a condition which affected the workers in match factories in the 19th and early 20th centuries. White phosphorous was the active ingredient in the matches, but ingesting the vapour it gave off – unavoidable for those workers – caused a deposition of phosphorous in (particularly) the jaw bone. This part of our skeleton would develop painful abscesses, then rot away accompanied by grotesquely swollen gums, and then brain damage, leading on to organ failure and a painful death. White phosphorous was prohibited by the Berne Convention in 1906.1

Unfortunately, unacceptable employment conditions exist still today. ‘Sweat shops’, for example, are notorious for unfair wages, unreasonable hours, child labour and poor worker benefits. For example, the International Labour Organization estimates that, on any given day in 2016, 152 million children aged 5 to 17 years were in child labour, of which 73 million were in hazardous work.2

In South Africa a substantial body of legislation has emanated from Parliament addressing the entire fabric of labour relations in South Africa. Indeed, one of the entrenched rights enshrined in our Constitution concerns fair labour practices. The Basic Conditions of Employment Act 1997 gives effect to this Constitutional postulate, and is administered by the Minister of Labour.

The Act regulates working hours; leave; issues concerning remuneration; termination of employment; prohibitions concerning children and forced labour; sectoral determinations3 and the like – in short, it deals with the basic conditions of employment. It applies to all employees and all employers,4 and its provisions override any agreement. The Act also makes provision for ‘labour inspectors’ who have wide powers of inspection, investigation, and interrogation in order to monitor, promote and enforce compliance with the law.

A. Labour inspectors

  1. It is an offence to:
    • hinder, obstruct or improperly influence any person performing a function in terms of the Act (‘functionary’);5
    • pretend to be a labour inspector, or any other functionary;6
    • refuse, or fail to answer fully any lawful question put by a labour inspector or functionary;7
    • refuse, or fail to comply with any lawful request of, or lawful order by, a labour inspector or functionary.8
  2. If any person, including a labour inspector or functionary, discloses information relating to the financial or business affairs of another person, knowledge of which was acquired whilst performing functions under the Act, he commits an offence.9 10

B. Children11

  1. No person may employ12 a child under school-leaving age. That means13 the last day of the school year in which he turns 15 – or the end of Grade 9, whichever comes first (save that you still may not employ a child 14 years and younger). Contravention of this prohibition is a crime.14

  2. It is also a crime to employ a child in work inappropriate for his age.15

  3. In addition, you commit an offence if you employ a child in work which places his well-being; or his education; or his physical or mental health; or his spiritual, moral or social development at risk.16

  4. Even if a child is past school-leaving age, you may not employ him in contravention of regulations.17 These concern respiratory hazards; elevated positions; lifting of heavy weights; cold, hot or noisy environments; and power tools, as well as cutting and grinding equipment. The contravention of such regulations is an offence.18

  5. It is an offence to disclose the record of any medical examination conducted on children in employment.19

  6. It is an offence to:

    • assist someone to employ a child in contravention of the Act;20 and
    • discriminate against anyone who refuses to permit a child to be employed in contravention of the Act.21

C. Forced labour

It is an offence to cause, or to demand, or to impose forced labour.22

D. General

It is an offence to obtain any document contemplated by the Act by means of fraud, false pretences, or by presenting or submitting a false or forged document.23

  1. See, in general, Wikipedia – ‘Phossy jaw’

  2. ‘Global Estimates of Child Labour’. 

  3. A sectoral determination involves specific conditions of employment, determined by the Minister, for employees in a particular industry or service (i.e. ‘sector’). 

  4. It does not apply to unpaid charity volunteers; the State Security Agency; and people employed on vessels at sea (except if a sectoral determination concerns them) if they are affected by the Merchant Shipping Act 1951. 

  5. Section 93(2) read with section 92(a) and (f). 

  6. Section 93(2) read with section 92(c). 

  7. Section 93(2) read with section 92(d). 

  8. Section 93(2) read with section 92(e). 

  9. Except if required by law to make the disclosure. 

  10. Section 93(2) read with section 90(1). 

  11. A ‘child’ is a person 17 years old or younger – see the definition in section 1 of the Act. 

  12. ‘Employ’ means to work for another person and become entitled to receive any form of remuneration; or simply assist in carrying on or conducting the business of another. It covers temporary employment as well. 

  13. In terms of section 3(1) of the South African Schools Act. 

  14. Section 93(2) read with section 43(1)(a) and (b) and (3). 

  15. Section 93(2) read with section 43(2)(a) and (3). 

  16. Section 93(2) read with section 43(2)(b) and (3). 

  17. Specifically, Government Notice 7 of 15 January 2010, dealing with hazardous work by children. 

  18. Section 93(2) read with section 44(2). 

  19. Section 93(2) read with section 90(3). 

  20. Section 93(2) read with section 46(a). 

  21. Section 93(2) read with section 46(b). 

  22. Section 93(2) read with section 48(1) and (3). 

  23. Section 93(2) read with section 92(b).