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South African Statutes

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South African Statutes

    DEPARTMENT OF LABOUR

NO. .......……………... Date..........…………………..

    BASIC CONDITIONS OF EMPLOYMENT ACT 75 OF 1997

    SECTORAL DETERMINATION NO 5: LEARNERSHIPS

    I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, in terms of Section 55(1) of the Basic Conditions of Employment Act no 75 of 1997, read together with Section 18(4) of the Skills Development Act, No 97 of 1998 hereby make the sectoral determination establishing conditions of employment and rates of allowances for learners in South Africa and fix the second Monday after the date of publication of this notice as the date from which provisions of this determination shall be binding upon all employers and learners in all sectors where Sector Education Authorities (SETAs) have been established.

M.M.S. MDLADLANA, MP

    Minister of Labour

    DEP2/0042LRA/BCEA

    SCHEDULE

    TABLE OF CONTENTS PAGE NO.

    1. Definitions 2-4 2. Area and scope of determination 4

    3. Learner‟s allowances 4-5 4. Calculation of remuneration and allowances 6 5. Payment of remuneration 6 6. Information about remuneration 7 7. Deductions and other acts concerning remuneration 7-8 8. Interpretation of day 8

    -9 9. Ordinary hours of work 810. Overtime 9 11. Compressed working week 9-10 12. Averaging of hours of work 10 13. Meal intervals 10-11 14. Daily and weekly rest period 11 15. Pay for work on Sundays 11-12 16. Night work 12-13 17. Public holidays 13-14 18. Emergency work 14 19. Annual leave 14-15 20. Pay for annual leave 15-16 21. Sick leave 16-17 22. Proof of incapacity 17 23. Application to occupational accidents and diseases 17 24. Maternity leave 18 25. Protection of learners before and after birth of a child 18 26. Family responsibility leave 19-20 27. Contract of employment 20-21 28. Informing learners of their rights 21 29. Keeping of records 21 30. Termination 22 31. Payments on termination 22 32. Certificate of service 22 33. Disputes about this determination 22 34. Keeping of the determination for learners 23

    Annexure “A” Certificate of service

    DEP2/0042LRA/BCEA

     2

    DEFINITIONS

    1. In this Act, unless the context indicates otherwise-

     „Act‟ means the Skills Development Act, 1998 (Act No 97 of 1998)

     'agreement' includes a collective agreement;

     'allowance' means the amount of money paid or payable to a learner in respect

    of ordinary hours of work or, if they are shorter, the hours a learner normally

    works in a day or week;

     'bargaining council' means a bargaining council registered in terms of the

    Labour Relations Act, 1995, and, in relation to the public service, includes the

    bargaining councils referred to in section 35 of that Act;

     'CCMA' means the Commission for Conciliation, Mediation and Arbitration

    established in terms of section 112 of the Labour Relations Act, 1995;

     'collective agreement' means a written agreement concerning terms and

    conditions of employment or any other matter of mutual interest concluded by

    one or more registered trade unions, on the one hand and, on the other hand-

    (a) one or more employers;

    (b) one or more registered employers' organisations; or

    (c) one or more employers and one or more registered employers‟

    organisation;

    and includes a collective agreement concluded in a bargaining council and

    binding in terms of either section 31 or 32 of the Labour Relations Act, 1995;

    „credit‟ means a credit as defined in the Regulations made under the South

    African Qualifications Authority Act, 1995 (Act 58 of 1995) published in

    Government Notice 18787 of 28 March 1998;

     'dispute' includes an alleged dispute;

     'Labour Relations Act, 1995' means the Labour Relations Act, 1995 (Act 66

    of 1995);

     'medical practitioner' means a person entitled to practise as a medical

    practitioner in terms of section 17 of the Medical, Dental and Supplementary

    Health Service Professions Act, 1974 (Act 56 of 1974);

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     'midwife' means a person registered or enrolled to practise as a midwife in terms of section 16 of the Nursing Act, 1978 (Act 50 of 1978);

     'Minister' means the Minister of Labour;

     'month' means a calendar month;

     'ordinary hours of work' means the hours of work permitted in terms of

    clause 9 or in terms of any agreement in terms of clauses 11 or 12;

    „NQF level‟ means a level of the National Technical Qualifications Framework referred to in the regulation 3 of the Regulations made under the South African Qualifications Authority Act, 1995 (Act no. 58 of 1995) published in Government Notice 18787 of 28 March 1998;

     'overtime' means the time that a learner works during a day or a week in excess of ordinary hours of work;

     'public holiday' means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act 36 of 1994);

     'registered employers' organisation' means an employers' organisation

    registered under section 96 of the Labour Relations Act, 1995;

     'registered trade union' means a trade union registered under section 96 of the Labour Relations Act, 1995;

     'remuneration' means any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State, and 'remunerate' has a corresponding 1meaning;

     'sector' means an industry or a service or a part of an industry or a service;

     'sectoral determination' means a sectoral determination made under Chapter Eight of the Basic Conditions of Employment Act, 1997;

    „wage‟ means the amount of money paid or payable to a learner in respect of ordinary hours of work or, if they are shorter, the hours an employee ordinarily works in a day or a week;

     'week' in relation to a learner, means the period of seven days within which the working week of that learner ordinarily falls;

     1 Remuneration is given a specific meaning in clause 7(5).

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    „work‟ includes any time that the learner is required to spend in study periods

    or theoretical learning sessions with the training provider in terms of the

    learnership agreement‟;

     'workplace' means any place where learners work.

APPLICATION OF THIS DETERMINATION

2. (1) This determination applies to -

    (a) the employment of a learner

    (i) who has concluded a learnership agreement in terms of section 17

    of the Act; and

    (ii) who was not in the employment of the employer party to the

    learnership agreement when the agreement was concluded.

     (b) to every employer who employs a learner contemplated in sub-paragraph

    (a) in respect of the employment of that learner.

    (2) (a) This determination forms part of the contract of employment of any

    learner employed in terms of section 18(2) of the Act.

    (b) Sub-paragraph (a) does not prevent an employer and a learner

    concluding a contract of employment in terms of section 18(2) of the

    Act, which contains terms, and conditions that are more favourable to

    the learner.

    (3) This determination takes precedence over any collective agreement, except

    insofar as a collective agreement concluded after this determination comes into

    effect expressly provides for learners to receive an allowance or conditions of

    employment that are more favourable to the employee than provided for in this

    determination.

LEARNER‟S ALLOWANCES

    3. (1) An employer must pay a learner an allowance calculated in terms of this clause.

    (2) Subject to subclause 3, a learner‟s allowance must be calculated as a percentage

    of the qualified wage in accordance with column 3 of Table A.

     5

    (3) No learner may be paid less than the applicable allowance specified in

     column 4 of Table A.

(4) For the purposes of this clause

    (a) the “qualified wage” is the wage that the employer would pay the learner

    on obtaining the qualification for which the learnership is registered ;

    (b) “wage” means the amount of money payable to an employee in respect of

    the hours of work an employee normally works, excluding any overtime.

Table A

    COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4

    Exit level of Credits already Percentage of Minimum

    learnership earned by learner qualified wage to allowance per

    be paid as week

    allowance

    NQF 1 or 2 0 120 35% R120.00

     121 240 69% R240.00

    NQF 3 0 120 17% R120.00

     121 240 40% R226.00

     241 360 53% R370.00

    NQF 4 0 120 13% R120.00

     121 240 25% R240.00

     241 360 53% R370.00

     361 480 56% R540.00

    NQF 5 to 8 0 - 120 8% R120.00

     120 240 18% R260.00

     240 360 27% R389.00

     361 480 38% R548.00

     481 600 49% R700.00

CALCULATION OF REMUNERATION AND ALLOWANCES

    4. (1) A learner's allowance is calculated by reference to the number of hours the

    learner normally works.

    (2) For the purposes of calculating the allowance of a learner, a learner is deemed

    normally to work-

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

    hours in a week;

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    (b) nine hours in a day, or seven and a half hours in the case of a learner who

    works for more than five days a week, or the number of hours that a

    learner works in a day in terms of an agreement concluded in accordance

    with clause 11, unless the learner normally works a lesser number of

    hours in a day.

    (3) A learner's monthly remuneration or allowance is four and one-third times the

    learner's weekly remuneration or allowance, respectively.

    (4) If a learner's remuneration or allowance fluctuates significantly from period to

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

    reference to the learner's remuneration or allowance during-

    (a) the preceding 13 weeks; or

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

PAYMENT OF REMUNERATION

5. (1) An employer must pay to a learner 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

    learner.

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

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

    (b) during the learner'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 learner.

    (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 learnership.

    (4) Subclause (3)(b) does not apply to any pension or provident fund payment to a

    learner that is made in terms of the rules of the fund.

     7

INFORMATION ABOUT REMUNERATION

    6. (1) An employer must give a learner the following information in writing on each

    day the learner is paid:

    (a) the employer's name and address;

    (b) the learner's name and learnership;

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

    (d) the learner's remuneration in money;

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

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

    (g) if relevant to the calculation of that learner's remuneration-

    (h) the learner's rate of remuneration and overtime rate;

    (i) the number of ordinary and overtime hours worked by the learner during

    the period for which the payment is made;

    (j) the number of hours worked by the learner on a Sunday or public holiday

    during that period; and

    (k) if an agreement to average working time has been concluded in terms of

    clause 12, the total number of ordinary and overtime hours worked by the

    learner in the period of averaging.

    (2) The written information required in terms of subclause (1) must be given to

    each learner-

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

    (b) during the learner's ordinary working hours or within 15 minutes of the

    commencement or conclusion of those hours.

DEDUCTIONS AND OTHER ACTS CONCERNING REMUNERATION

    7. (1) An employer may not make any deduction from a learner's remuneration unless-

    (a) subject to subclause (2), the learner 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 subclause (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 learner;

     8

    (b) the employer has followed a fair procedure and has given the learner 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 learner's remuneration in terms of this

    subclause do not exceed one-quarter of the learner's remuneration in

    money.

    (3) A deduction in terms of subclause (1)(a) in respect of any goods purchased by

    the learner must specify the nature and quantity of the goods.

    (4) An employer who deducts an amount from a learner's remuneration in terms of

    subclause (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 a learner to-

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

    employer resulting from an error in calculating the learner's remuneration;

    or

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

    received.

    (6) An employer may not make any deduction from a learner‟s remuneration, or

    require a learner to repay any amount, in respect of any tools, materials,

    equipment, protective clothing, uniforms or training material required for the

    purposes of the learnership.

INTERPRETATION OF DAY

    8. For the purposes of clauses 9 to 15, 'day' means a period of 24 hours measured from the time when the learner normally commences work and „daily‟ has a corresponding meaning.

ORDINARY HOURS OF WORK

    9. (1) Subject to clauses 8 to 18, an employer may not require or permit a learner to

    work more than-

    (a) 45 hours in any week; and

    (b) nine hours in any day if the learner works for five days or fewer in week;

    or

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    (c) eight hours in any day if the learner works on more than five days in a

    week.

     (2) A learner's ordinary hours of work in terms of subclause (1) may by agreement

    be extended by up to 15 minutes in a day but not more than 60 minutes in a

    week to enable a learner whose duties include serving members of the public to

    continue performing those duties after the completion of ordinary hours of

    work.

OVERTIME

10. (1) Subject to clauses 8 to 18, an employer may not require or permit a learner-

    (a) to work overtime except in accordance with an agreement;

    (b) to work more than-

    (i) three hours' overtime a day;

    (ii) ten hours' overtime a week.

    (2) An employer must pay a learner at least one and one-half times the learner's

    allowance for overtime worked.

    (3) Despite subclause (2), an agreement may provide for an employer to-

    (a) pay a learner not less than the learner's ordinary allowance for overtime

    worked and grant the learner at least 30 minutes' time off on full pay for

    every hour of overtime worked; or

    (b) grant a learner at least 90 minutes' paid time off for each hour of

    overtime worked.

     (4) (a) An employer must grant paid time off in terms of subclause (3) within

    one month of the learner becoming entitled to it.

    (b) An agreement in writing may increase the period contemplated by

    paragraph (a) to 12 months.

    (5) An agreement concluded in terms of subclause (1) with a learner when the

    learner commences employment, or during the first three months of

    employment, lapses after one year.

COMPRESSED WORKING WEEK

    11. (1) An agreement in writing may require or permit a learner to work up to twelve

    hours in a day, inclusive of the meal intervals required in terms of clause 9,

    without receiving overtime pay.

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