Research report - National Child Labour Action Programme for South Africa (1).doc

312 the basic conditions of employment act in march

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3.1.2 The Basic Conditions of Employment Act In March 1998 the child labour provisions of the new Basic Conditions of Employment Act (BCEA) of 1997 took effect. This is the most important act dealing explicitly with child work. It prohibits employment of a child: Who is under 15 years old; Who is under the minimum school leaving age (where this age is 15 years or older);
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Who is over 15 years but under 18 years old, if the employment – is inappropriate for the age of the child or if the work places at risk the child’s well-being, education, physical or mental health, or spiritual, moral or social development; has been prohibited by the Minister of Labour through regulations. Section 83 gives the Minister of Labour the power to deem any category of persons to be employees for purposes of the Act. This power can be used to widen the scope of work considered unlawful. A person is considered an employee if that person: Works for another person and receives any remuneration; or In any manner assists in carrying on or conducting the business of an employer; AND is not an independent contractor. In terms of section 83A a person is presumed in certain circumstances to be an employee unless the contrary is proved. This should extend protection to children where their status as employees is disputed. The Act is enforced primarily through Department of Labour inspectors. The Child Care Act (CCA, Section 52A) contains a similar prohibition, namely that ‘no person may employ or provide work to any child under the age of 15 years’. The clause has wider application than the BCEA. It outlaws both employment of such children, and provision of work. It is therefore likely that this section prohibits giving work to a child who works as an independent contractor. It is likely that Section 52A will be deleted, to remove the elements of duplication. Section 46 of the BCEA provides that it is a criminal offence to assist an employer to employ a child in contravention of the Act, and to discriminate against a person who refuses to permit a child to be employed. Regulations may be issued in terms of section 44 to clarify what kinds of work are considered inappropriate. Section 45 allows the Minister, after consultation with the ECC, to make regulations in respect of medical examination of working children. No regulations in terms of either of these sections have been published as yet. The Minister of Labour may vary the child work provisions for any categories of employers, but only for advertising, sports, and artistic or cultural activities. A sectoral determination has been drafted to govern such activities. The Minister may grant a specific determination, applicable to an individual employer, only after union agreement if one exists at the workplace, or after informing all employees.
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