Rethinking chapter 3 of the basic conditions of Employment Act 75 of 1997: towards an ๐๐ฃ๐ถ๐ฏ๐ต๐ถ-๐ฃ๐ข๐ด๐ฆ๐ฅ theory
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Date
2024
Authors
Vatsha, Khanyisile
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Free State
Abstract
The Basic Conditions of Employment Act 75 of 1997 (BCEA), gives effect to section 23 of the Constitution, which provides for the right to fair labour practices.ยน Since the enactment of the BCEA and other labour legislations such as the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998, South African employees and employers enjoy a variety of labour rights. The BCEA regulates and establishes basic conditions of employment and has the duty to comply with the International Labour Organization.ยฒ Chapter 2 of the Act regulates working time including ordinary work hours, overtime work, compressed working week, averaging of hours, determination of hours of work by the minister, meal intervals, daily and weekly rest period, pay for work on Sundays, night work and public holidays.ยณ In the context of this research, the regulation for the minimum and maximum working hours and conditions emphasize how the Act aims at protecting workersโ rights.
โ
Chapter 3 of the BCEA regulates โleave entitlementsโโโด To summarise the Chapter, section 20 provides for annual leave,โต section 21 regulates pay for annual leave,โถ section 22 regulates sick leave whilst section 23 deals with proof of incapacity,โท section 24 regulates application to occupational accidents or diseases,โธ section 25 regulates maternity leave, parental leave, adoption leave as well as commissioning parental leaveโน section 26 deals with the protection of employees before and after childbirth, and lastlyยนยบ section 27 regulates family responsibility leave.ยนยน This research focuses on Chapter 3 of the BCEA, with the aim of navigating whether Chapter 3 does not deviate from the main objectives of the BCEA as per the preamble of the Act and the stipulations of section 23(1) of the Constitution which provides for the right to fair labour practices.ยนยฒ
This research draws motivation from various sections of the Constitution that support the approach followed by the paper. For example, section 9(3) of the Constitution prohibits unfair discrimination on one or more of the mentioned grounds, which include gender, pregnancy, belief, race, language, birth and others,ยนยณ and section 39(1) of the Constitution, which charges courts or tribunals to consider international law when interpreting the Bill of Rights and allows them to also consider foreign law.ยนโด
The research is also motivated by novel cases such as ๐๐ข๐ฏ ๐๐บ๐ฌ ๐ข๐ฏ๐ฅ ๐๐ต๐ฉ๐ฆ๐ณ๐ด ๐ท ๐๐ช๐ฏ๐ช๐ด๐ต๐ฆ๐ณ ๐ฐ๐ง ๐๐ฎ๐ฑ๐ญ๐ฐ๐บ๐ฎ๐ฆ๐ฏ๐ต ๐ข๐ฏ๐ฅ ๐๐ข๐ฃ๐ฐ๐ถ๐ณ, ๐๐ข๐ฉ๐ญ๐ข๐ฏ๐จ๐ถ ๐ท ๐๐ข๐ฎ๐ข๐ฏ๐ค๐ฐ๐ณ ๐๐ฉ๐ณ๐ฐ๐ฎ๐ฆ ๐๐ต๐ฅ,ยนโต ๐๐ฐ๐บ๐ฐ๐ต๐ข ๐๐ฐ๐ถ๐ต๐ฉ ๐๐ง๐ณ๐ช๐ค๐ข ๐๐ฐ๐ต๐ฐ๐ณ๐ด (๐๐๐ ) ๐๐ต๐ฅ ๐ท ๐๐๐๐๐ ๐ฐ๐ฃ๐ฐ ๐๐ซ๐ช๐ญ๐ฐ ๐ข๐ฏ๐ฅ ๐๐ต๐ฉ๐ฆ๐ณ๐ด,ยนโถ ๐๐ข๐ฏ๐บ๐ฆ๐ต๐ด๐ข ๐ท ๐๐ฆ๐ธ ๐๐ญ๐ฆ๐ช๐ฏ๐ง๐ฐ๐ฏ๐ต๐ฆ๐ช๐ฏ ๐๐ฐ๐ญ๐ฅ ๐๐ช๐ฏ๐ฆ (๐ฑ๐ต๐บ) ๐๐ต๐ฅ,ยนโท which have recently contributed to the debate on the content and interpretation of Chapter 3 of the BCEA. These and other cases will be referenced to draw an inference of the possible deviation by Chapter 3 of the BCEA.
This research finds that although the preamble of the BCEA provides for wide and generous conditions of employment to protect workers, Chapter 3 of the BCEA falls short of fulfilling the objectives of the Act. This is because through recent interpretations of Chapter 3 of the BCEA in case law, there seems to be a disconnect in relation to the letter of the law, the purpose of the law and the application of the law. Chapter 3 fails to adequately bring to life the protections envisaged by the preamble and the objectives of the Act. This then brings to the fore the question of whether Chapter 3 of the BCEA is effective in fulfilling the objectives of the Act or if there is a need for an alternative theory and approach.
Upon navigating the lacuna and shortcomings from Chapter 3 stipulations, an alternative theory is investigated. In this light, the research looks at the possibility of adopting an Ubuntu-based theory in approaching leave entitlements, founded on the values of generosity, compassion, kindness, humanity, respect, and dignity will be analysed as a feasible alternative approach.ยนโธ