What is the Basic Conditions of Employment Act 75 of 1997 and are employees in the retail motor industry covered by this Act?

The purpose of the Basic Conditions of Employment Act (BCEA) is to give effect to the right to fair labour practices referred to in the Constitution of South Africa. In a nutshell the BCEA establishes and makes provision for the regulation of basic conditions of employment and in so doing adheres to the obligations of South Africa as a member state of the International Labour Organisation.

The BCEA applies to all workers and employers in South Africa, except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for charities.

In certain industries there is a variation of the Basic Conditions of Employment through a Bargaining Council. One of the purposes of the Labour Relations Act 66 of 1995 is to promote and facilitate collective bargaining within workplaces in South Africa. In the retail motor sector MISA and NUMSA as employee parties (Unions), and RMI, FRA and NEASA (as employer parties) negotiated and agreed on conditions of employment and other related employment matters. This collective bargaining resulted in agreed terms and conditions which are converged in the MIBCO Collective Agreements and forms the basis of the employer-employee relationship in the Industry.

A collective agreement, as with the BCEA, may determine working hours; minimum wages; entitlement to and conditions for taking annual leave, bonuses, etc. All employers and employees who are parties to such a collective agreement are bound by that agreement and must adhere to its terms. For example if a collective agreement determines that an employee must be paid a certain minimum wage per hour then that employee may not be paid a lesser amount.

A collective agreement concluded in a bargaining council may differ from the BCEA, but only as far as it does not:

• Lower protection of workers in terms of health and safety and family responsibilities;
• Lower annual leave to less than two weeks;
• Lower maternity leave in any way;
• Lower sick leave in any way;
• Lower protection of night workers;
• Allow for any child labour or forced labour.

Having said that, do bear in mind that a Contract of Employment may not disregard or waive terms agreed upon in a Collective Agreement or permit less favourable treatment of an employee as that prescribed by the collective agreement.

Non-adherence to terms set out in the MIBCO Collective Agreements by parties to the agreement, that is employers and employees, is an offence and must be reported to MIBCO. Designated Agents in the employ of MIBCO can issue (non)-compliance orders where employers are in breach of any term of the MIBCO Collective Agreement.

Should there be any uncertainty regarding your terms and conditions or compliance with the MIBCO Collective Agreement, please contact MISA. Enforcement of non-compliance will be done through the MIBCO Dispute Resolution Centre (DRC) and monitored by MISA.

Should you have any questions, do remember that MISA is always just a phone call away and the MISA Labour Department can be contacted on 011-678-6328.

Article by Anel Strydom, MISA Labour Department.

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