GOVERNMENTGAZETTE OF THE
REPUBLIC OF NAMIBIA
R4,50 WINDHOEK - 8 April 1992 No. 388
CONTENTS
Page
GOVERNMENT NOTICE
No. 35 Promulgation of Labour Act, 1992 (Act 6 of 1992), of the National Assembly... , ,......
Government Notice
OFFICE OF THE PRIME MINISTER
No. 35 1992
PROMULGATION OF ACT OF THE NATIONAL ASSEMBLY
The following Act which has been passed by the National Assembly and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No.6 of 1992: Labour Act, 1992.
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ACT
To make provision for the regulation of the conditions of employment of employees in Namibia; to prevent and remedy any unfair dismissals of, and unfair disciplinary actions against, employees; to regulate the termination of contracts of employment; to provide for the registration of trade unions and employers' organizations and to define the rights and obligations of trade unions and employers' organizations; to provide for the settlement of disputes between employees or registered trade unions and employers or registered employers' organizations; to provide for that purpose for the appointme~t, and to define the powers, duties and functions of a Labour Commissioner and inspectors; to establish for that purpose a Labour Advisory Council, a Labour Court, district labour courts and a Wages Commission; to provide for the constitution, and to define the powers, duties and functions of the said Labour Advisory Council, Labour Court, district labour courts and Wages Commission; and to provide for the health, safety and welfare of employees at work; and to provide for incidental matters.
(Signed by the President on 26 March 1992)
ARRANGEMENT OF SECTIONS
PART I Introductory provisions
1. Definitions 2. Application of Act
PART II Administration of Act
3. Appointment of Labour Commissioner and labour inspectors
4. Records and returns 5. Preservation of secrecy 6. Limitation of liability
PART III Labour Advisory Council
7. Establishment of Labour Advisory Council 8. Functions of Council 9. Constitution of Council
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10. Committees of Council 11. Terms of office and conditions of service of members
of Council 12. Vacation of offices of members of Council 13. Meetings of Council and decisions 14. Performance of administrative functions of Council
PART IV Labour Court and district labour courts
15. Establishment of Labour Court and district labour courts
16. Constitution of Labour Court 17. Constitution of district labour courts 18. Jurisdiction and powers of Labour Court 19. Jurisdiction and powers of district labour courts 20. Orders of costs 21. Appeals against judgment or orders of Labour Court or
district labour courts 22. Rules of Labour Court and district labour courts 23. Offences relating to orders of Labour Court or district
labour courts 24. Limitation of institution of proceedings in Labour
Court or lodging of complaints with district labour courts
PART V Basic conditions of employment
25. Application of this Part 26. Maximum weekly ordinary working hours 27. Maximum daily ordinary working hours in case of day
workers 28. Maximum ordinary working hours per shift in case of
shift workers 29. Extension of ordinary working hours 30. Maximum spread-overs 31. Meal intervals 32. Overtime 33. Work on Sundays and public holidays 34. Night work 35. Calculation of remuneration 36. Payment of remuneration 37. Prohibition of certain acts relating to payment of
remuneration 38. Employees required to live in on place of employment
or other premises of employer 39. Annual leave 40. Sick leave
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41. Maternity leave 42. Child labour 43. Prohibition on victimisation and protection of freedom
of association 44. Powers of district labour courts in respect of
contraventions of, or failure to comply with, provisions of this Part
PART VI Termination of contracts of employment and unfair
disciplinary actions
45. Meaning of unfair dismissals and unfair disciplinary actions
46. Powers of district labour courts in relation to unfair dismissals from employment, or unfair disciplinary action taken against employees
47. Termination of contracts of employment by notice 48. Termination of contracts of employment by death or
insolvency of employer or, in case of company or juristic person, winding up of company or juristic person or, in case of partnership, dissolution of partnership
49. Termination of contracts of employment at places other than place where employees are recruited
50. Collective termination of contracts of employment 51. Certificates of employment 52. Severance allowances 53. Powers of district labour courts in respect of
contraventions of, or failure to comply with, provisions of this Part
PART VII Trade unions and employers' organizations
54. Registration of trade unions and employers' organizations
55. Matters to be included in constitutions of trade unions and employers' organizations
56. Effect of registration of trade unions and employers' organizations
57. Rights of registered trade unions and of members of registered trade unions
58. Recognition of registered trade unions as exclusive bargaining agents
59. Rights of access of registered trade unions to enter upon premises of employers
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60. Collection of membership fees of registered trade unions by way of deductions from remuneration of employees
61. Obligations of registered trade unions and registered employers' organizations
62. Rights and obligations of members of registered trade unions and registered employers' organizations
63. Powers of Commissioner in relation to trade unions and employers' organizations
64. Returns to be submitted by registered trade unions and registered employers' organizations
65. Workplace union representatives 66. Powers of Labour Court in relation to certain matters
regarding registered trade unions and registered employers' organizations
67. Miscellaneous powers of Labour Court in relation to certain acts
PART VIII Collective agreements
68. Registration of collective agreements 69. Effect of registration of collective agreements 70. Binding effect of registered collective agreements upon
persons other than persons referred to in section 69 71. Amendment or rectification of registered collective
agreements 72. Binding effect of collective agreements not registered
in terms of section 68 73. Interpretation of collective agreements for purposes of
this Part
PART IX Disputes between employers or registered employers'
organizations and employees or registered trade unions
74. Reporting of disputes 75. Establishment of conciliation boards 76. Terms of reference of conciliation boards 77. Meetings of conciliation boards 78. Resolved disputes 79. Unresolved disputes 80. Powers of Minister in relation to essential services 81. Strikes, lock-outs and picketing 82. Limitation of applications for interim interdicts in
relation to strikes or lock-outs 83. Limitation of liability of registered trade unions
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PART X Wages Commission
84. Establishment of Wages Commission 85. Tenns of reference of Commission 86. Constitution of Commission 87. Tenns of office and conditions of service of members
of Commission 88. Vacation of offices by members of Commission 89. Meetings of Commission and decisions 90. Consideration of matters relating to tenns of reference 91. Reports of Commission 92. Wage orders 93. Cancellation or suspension of wage orders 94. Period of operation of wage orders 95. Exemptions from provisions of wage orders
PART XI Health, safety and welfare at work of employees
96. Duties of employers on health, safety and welfare at work of employees
97. Duties of employers on health and safety to persons other than employees
98. Rights and duties of employees at work 99. Election of workplace safety representatives and
establishment of workplace safety committees 100. Powers of inspectors to issue certain orders 101. Regulations on health and safety of employees at work 102. Administration of regulations 103. Rules to ensure proper administration of this Part and
regulations
PART XII Powers of inspectors
104. Powers of inspectors 105. Offences in relation to inspectors
PART XIII Affirmative action and complaints in relation to unfair
discrimination or harassment
106. Affinnative action 107. Unfair discrimination or harassment in employment or
occupation
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PART XIV Miscellaneous offences, penalties and evidence
108. Forced labour 109. Offences, or contraventions of, or failures to comply
with, provisions of Act by managers, agents or employees
110. Evidence
PART XV Miscellaneous provisions
111. Contracts entered into by State for provision of goods or servIces
112. Guidelines and instructions to ensure proper administration of Act
113. Service of documents 114. Exemptions 115. Delegation of powers 116. Repeal oflaws and savings 117. Short title and commencement
SCHEDULE Laws repealed or amended
PREAMBLE
WHEREAS the Republic of Namibia is, in terms of Chapter 11 of the Namibian Constitution, bound to actively promote and maintain the welfare of the people of Namibia;
WHEREAS in so doing the Republic of Namibia has adopted in the labour field a policy aimed at enacting legislation, with due regard to the furtherance of labour relations conducive to economic growth, stability and productivity through the promotion of an orderly system of free collective bargaining, the improvement of wages and conditions of employment of employees and the advancement of persons who have been disadvantaged by past discriminatory laws and practices, the regulation, free from discrimination on grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status of conditions of employment, of all workers in Namibia and in particular -
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Definitions.
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to ensure equality of opportunity for women, particularly, in relation to remuneration, and to provide for maternity leave to, and employment security for, women;
to promote sound labour relations and fair employment practices by encouraging freedom of association by way of, inter alia, the formation of trade unions to protect workers' rights and interests, and to promote the formation of employers' organizations;
to lay down certain obligatory minimum basic conditions of service for all employees without infringing or impairing the right to agree to conditions of service which are more favourable than such basic conditions;
to ensure the protection of the health, safety and welfare of men and women at work and to prevent the abuse of child labour;
where possible, to adhere and give effect to international labour conventions and recommendations of the International Labour Organization;
NOW, THEREFORE, BE IT HEREBY ENACTED by the National Assembly of the Republic of Namibia, as follows:-
PART I Introductory provisions
1. In this Act, unless the context indicates otherwise -
"casual employee" means a day worker who is employed by the same employer on not more than two days in any week;
"collective agreement" means any agreement in writing, the terms of which are negotiated by, entered into between, and signed by or on behalf of -
(a) on the one hand-
(i) any employer or group of employers;
(ii) any registered employers' organization or group of registered employers' organizations;
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(iii) any employer or group of employers and any registered employers' organization or group of registered employers' organizations; and
(b) on the other hand any registered trade union or group of registered trade unions,
in relation to any terms and conditions of employment and any other matter of mutual interest;
"Commission" means the Wages Commission established by section 84;
"Commissioner" means the Labour Commissioner appointed under section 3(1 )(a), and includes the acting Labour Commissioner so appointed;
"committee", in relation to the Council, means any committee of the Council established under section 10(1);
"complaint" means a complaint of an alleged contravention of, or a failure to comply with, a provision of this Act or any term and condition of a contract of employment or a collective agreement by a complainant in relation to which a district labour court is empowered to exercise jurisdiction by virtue of any such provision;
"conciliation board" means a conciliation board established under section 75 or deemed to have been so established;
"Council" means the Labour Advisory Council established by section 7 and, in so far as any functions of the Council have, under paragraph (b) of subsection (1) of section 10, been assigned to a committee of the Council, includes any such committee;
"day worker" means any employee who is not a shift worker;
"dispute", for purposes of Part IX, means any dispute in any industry in relation to any labour matter between -
(a) on the one hand-
(i) one or more registered trade unions;
(ii) one or more employees;
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(iii) one or more registered trade unions and one or more employees; and
(b) on the other hand -
(i) one or more registered employers' organizations;
(ii) one or more employers;
(iii) one or more registered employers' organizations and one or more employers,
and includes any dispute relating to -
(aa) the application, or the interpretation, of any provision of this Act or of any tenn and condition of a contract of employment or a collective agreement, including the denial or infringement of any right conferred by or under any provision of this Act or any right conferred by any tenn and condition of a contract of employment or a collective agreement, or the recognition of a registered trade union as an exclusive bargaining agent or the refusal to so recognize any such trade umon;
(bb) the existence or non-existence of a contract of employment or a collective agreement;
"dispute of interests" means any dispute in relation to any labour matter other than a matter referred to in paragraph (aa) or (bb) of the definition of "dispute";
"dispute of rights" means any dispute in relation to a matter referred to in paragraph (aa) or (bb) of the definition of "dispute", excluding any such dispute in respect of which a complaint has been lodged in accordance with the provisions of Part IV;
"district labour court" means any district labour court established by section 15(1)(b);
"employee" means any natural person -
(a) who is employed by, or working for, any employer and who is receiving, or entitled to receive, any remuneration; or
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(b) who in any manner assists in the carrying on or the conducting of the business of an employer,
and "employed" and "employment" shall have corresponding meanings;
"employer" means any person, including the State -
(a) who employs, or provides work for, any person and who remunerates or expressly or tacitly undertakes to remunerate him or her;
(b) who permits any person to assist him or her in any manner in the carrying on, or conducting of, his or her business,
and "employ'" and "employment" shall have corresponding meanings;
"employers' organization" means any number of employers in one or more industries associated principally for purposes of regulating relations in that industry between themselves or some of them and their employees or some of them;
"exclusive bargaining agent" means any registered trade union recognized in terms of section 58 as an exclusive bargaining agent;
"guard" means any employee charged with the guarding of property;
"industry" includes any undertaking, trade or occupation and includes a section or a portion of such undertaking, trade or occupation;
"inspector" means any person appointed as labour inspector under section 3(1)(b), and includes any person appointed under section 3(1)(c);
"Labour Court" means the Labour Court established by section l5(1)(a);
"lock-out" means-
(a) the exclusion by an employer of any number of or all of his or her employees from any premises on
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or in which work provided by him or her is or has been performed; or
(b) the total or partial discontinuance by him or her of his or her business or of the provision of work,
with a view to inducing his or her employees or any persons in the employ of any other employer or employers to agree to, or to comply with, any demands or proposals which relate to any dispute or to abandon any demand or modification of any such demand;
"medical practitioner" means a medical practitioner registered in terms of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), or authorized to practise as a medical practitioner under the provisions of the Health Service Professions Proclamation, 1989 (Proclamation AG. 70 of 1989), and includes, for purposes of the provisions of sections 34 and 41, any person registered as a nurse or midwife under the provisions of the Nursing Act, 1978 (Act 50 of 1978), or authorized to practise as a registered nurse or midwife under the provisions of the said Health Service Professions Proclamation, 1989;
"Minister" means the Minister of Labour and Manpower Development;
"night work" means any work performed during any period between the hours 20hOOand 07hOO;
"office-bearer", in relation to a trade union or employers' organization, means a person other than an official who holds any office in such trade union or employers' organization and includes a member of a committee of any such trade union or employers' organization;
"official", in relation to a trade union or employers' organization, means an employee of such trade union or employers' organization employed as secretary, assistant secretary or organizer of such trade union or employers' organization or in any other capacity, whether or not such employee is employed in a full-time capacity;
"ordinary working hours", in relation to-
(a) a security guard or a guard, means the working hours mentioned in sections 26(1)(a), 27(1)(a) and 28(1)(a);
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(b) a shift worker who is employed for any purpose referred to in section 33(2), means the working hours mentioned in sections 26( 1)(b) and 28( 1)(b);
(c) a shift worker who is employed for any purpose other than a purpose referred to in section 33(2), means the working hours mentioned in sections 26(1)(b) and 28(1)(c);
(d) a casual employee, means the working hours mentioned in section 27(1)(b);
(e) a day worker other than a casual employee referred
to in paragraph (d) who is a day worker, means the working hours mentioned in sections 26( 1)(b) and 27(1)(c),
or means the said hours as extended in accordance with section 29, as the circumstances may require;
"overtime" means that portion of the time which an employee works for his or her employer which is in excess of the ordinary working hours applicable to such employee;
"Permanent Secretary" means the Permanent Secretary: Labour and Manpower Development;
"premises" includes any building or structure, or part thereof, whether above or below the surface of the land or water, or any vehicle, truck, vessel or aircraft;
"public holiday" means any public holiday referred to in, or declared under, section 1 of the Public Holidays Act, 1991 (Act 26 of 1991);
"registered", in relation to -
(a) a trade union or an employers' organization, means a trade union or an employers' organization, as the case may be, which is registered as such under the provisions of Part VII;
(b) a collective agreement, means a collective agreement registered in tenns of section 68(3)(a);
"remuneration" means any payment in money made or owing to any employee by virtue of his or her employment, excluding -
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(a) any payment made or owing to such employee by way of compensation for travelling and subsistence expenses incurred by such employee in the course of his or her employment;
(b) any payment made or owing to such employee by virtue of such employee's retirement from the employment of such employer or the termination of such employee's employment,
and "remunerate" shall have a corresponding meaning;
"security guard" means any employee who is charged with the supervision, or control over, a guard or the control of, or reporting on, the movement of persons or vehicles through a checkpoint or who may in the course of his or her employment be required to act as a guard or to perform any other security duty;
"shift worker" means an employee who works in shifts in or in connection with any industry in relation to which work is performed in two or more shifts per day;
"shop" means -
(a) any premises where articles are displayed for sale or where samples of articles are displayed for the sale of articles of the kind so displayed;
(b) any premises where -
(i) articles referred to in paragraph (a) are stored, unpacked or packed, or from where such articles are dispatched or delivered to customers;
(ii) articles intended for sale are stocked and from where orders for the supply of such articles to customers are executed;
(c) any premises used as a -
(i) restaurant, refreshment or tea room or an eating - house;
(ii) hairdresser's salon or barber's shop;
(iii) receiving depot for-
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(aa) articles of clothing or other soft goods which are to be laundered, cleaned or dyed; or
(bb) shoes, boots or articles of clothing which are to be repaired; or
(d) any premises where any other activities are performed which are connected with or incidental to anyone or more of those mentioned in paragraph (a), (b) or (c);
"spread-over", in relation to an employee, means the period in any day reckoned from the time when such employee first commences work until he or she ceases to work for that day, and for the purposes of this definition "day" means a period of 24 consecutive hours reckoned from the time of the said commencement of work;
"State" includes -
(a) any body established by or under any law and-
(i) controlling or being entitled to control by virtue of any such law funds accruing or being entitled to accrue to it as a whole or in part from moneys -
(aa) appropriated for the purposes of those funds or of a loan to the credit of those funds or, in the case of a body with a share capital in which the State or Government of Namibia may, under the law in question take up shares, the taking up of such shares;
(bb) loaned by virtue of a guarantee or approval granted in terms of any law by the President or any Minister;
(ii) which may levy fees for services rendered at a rate, tariff or scale approved or determined in terms of any law by the President or any Minister;
(b) any regional council contemplated in Article 103 of the Namibian Constitution;
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(c) any local authority contemplated in Article 111 of the Namibian Constitution;
"strike" means the refusal or failure in concert by two or more employees of an employer to continue, whether completely or partially, to work or to resume their work or to comply with the terms and conditions of employment applicable to them, or the retardation by them of the progress of work, or the obstruction by them of work with a view to inducing such employer or any other employer to agree to, or to comply with, any demands or proposals which relate to any. dispute or to abandon any demand or modification of any such demand;
"trade union" means any number of employees in one or more industries associated principally for purposes of regulating relations in that industry between themselves or some of them and their employers or some of their employers;
"wage order" means a wage order made under section 92;
"week", in relation to an employee, means the period of seven days within which the working week of that employee falls.
2. (1) Subject to the provisions of subsections (2) and (3), this Act shall apply in relation to every employer, including the State, and every employee in Namibia.
(2) Notwithstanding the provisions of subsection (1) -
(a) the provisions of this Act, except the provisions of Part XIII, shall not apply in relation to a person employed as a member of the Namibia Defence Force and the Namibian Police Force;
(b) the provisions of -
(i) the Apprenticeship Ordinance, 1938
(Ordinance 12 of 1938);
(ii) the Merchant Shipping Act, 1951 (Act 57 of 1951); and
(iii) any law on the employment of persons in the service of the State,
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in so far as any such provisions relate to the remuneration and other conditions of service of persons employed in terms of those provisions, shall, subject to the provisions of subsection (3), not be affected by the provisions of this Act.
(3) Notwithstanding the provisions of subsection (2)(b) -
(a) the provisions of this Act shall apply in respect of any person referred to in the said subsection (2)(b) in so far as a provision of this Act -
(i) provides for any matter which is not regulated by or under any such provision of the said Apprenticeship Ordinance, 1938, the Merchant Shipping Act, 1951, or law referred to in that subsection in respect of any such person;
(ii) is not less favourable for such person than any provision of the said Ordinance, Act or law or any provision or condition of employment made thereunder;
(b) the Minister may from time to time by notice in the Gazette declare -
(i) that any provision of the Apprenticeship Ordinance, 1938 (Ordinance 12 of 1938), the Merchant Shipping Act, 1951 (Act 57 of 1951), or any law referred to in subsection (3) shall not apply in relation to any employee employed by or under such provision;
(ii) that any provision of this Act shall apply in relation to such person with such modifications as may be determined and specified by the Minister in such notice,
and may by like notice amend or withdraw any such notice.
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Records and returns.
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PART II Administration of Act
3. (1) The Minister-
(a) shall, subject to the laws governing the public
service, appoint a person to be known as the Labour Commissioner or, during the absence or incapacity of the Commissioner to exercise or perform his or her powers, duties or functions, an acting Labour Commissioner, who shall be assisted by such other officers as may from time to time be designated by the Permanent Secretary for such purpose, who shall respectively exercise or perform, subject to the direction and control of the Minister, the powers, duties and functions conferred or imposed upon the Commissioner by or under the provisions of this Act and such other functions as may be imposed upon any of them by the Minister;
(b) shall, subject to the laws governing the public service, appoint such number of persons to be known as labour inspectors as the Minister may deem necessary for purposes of the effective application of this Act, who shall exercise or perform, subject to the direction and control of the Minister, the powers, duties and functions conferred or imposed upon any inspector by or under the provisions of this Act and such other functions as may be imposed upon any such inspector by the Minister;
(c) may from time to time appoint such other persons on such terms and conditions as may be determined by mutual agreement for purposes of any particular examination or investigation under the provisions of this Act for such period as may be so determined.
(2) An inspector shall at the time of his or her appointment be furnished with a certificate signed by the Permanent Secretary stating that he or she has been appointed as an inspector.
4. (1) Every employer -
(a) shall keep at an address in Namibia a proper record
in such form as may be determined by the Permanent Secretary and made known by notice in
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the Gazette or by notice in writing to such holder of such particulars as may be so specified in relation to -
(i) the employees employed by him or her, including their sex and ages;
(ii) the date on which every such employee commenced his or her employment and the date on which any contract of employment was terminated and the reasons for such termination;
(iii) the remuneration payable to every employee other than a casual employee and the increment of such remuneration as may from time to time be granted;
(iv the remuneration paid to each employee;
(v) any periods of annual leave, sick leave or maternity leave, and other periods of absence, granted to every employee other than a casual employee;
(vi) such other information and particulars as may be determined by the Permanent Secretary and specified in such notice;
(b) shall submit to the Permanent Secretary, within such period as may be determined by the Permanent Secretary by notice in the Gazette, such returns and containing such particulars and information contained in such employer's records kept in terms of paragraph (a) as may be so determined and specified.
(2) An employer shall retain all records kept in terms
of subsection (1), or a microreproduction thereof, for a period of not less than five years.
(3) Subject to the provisions of section 5, the
Permanent Secretary may from time to time compile, analyze and tabulate statistics collected by way of returns submitted in terms of this section and cause, subject to the directions of the Minister, such statistics, as so compiled, analyzed and tabulated, or abstracts therefrom to be published in such form as may be determined by the Permanent Secretary.
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Preservation of secrecy.
Limitation of liability.
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(4) Any employer who -
(a) contravenes or fails to comply with the provisions
of subsection (1) or (2);
(b) in any record or return referred to in subsection (1)
wilfully furnishes information which is false or misleading in any material respect,
shall be guilty of an offence and on conviction be liable to a fine not exceeding R4000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.
s. (1) The Permanent Secretary, the Commissioner, an inspector or any other officer employed in the Ministry of Labour and Manpower Development, whether or not engaged in carrying out the provisions of this Act, and any other person engaged in carrying out any provision of this Act shall preserve and aid in preserving secrecy in relation to all matters that may come to his or her knowledge in the exercise of the powers or the performance of the duties and functions conferred or imposed upon the Permanent Secretary, the Commissioner, inspector or such officer or person in terms of any provision of this Act, and shall not communicate any such matter to any other person or permit any other person to have access to any documents in his or her possession or custody, except in so far as any such communication-
(a) is required by, or may be made in terms of, this Act or any other law, or is required by an order of a competent court;
(b) is effected with the prior permission in writing of
the person concerned, or of the Minister granted in respect of any matter which in the opinion of the Minister is of a general nature and may be disclosed in the public interest.
(2) Any person who contravenes or fails to comply with the provisions of subsection (1) shall be guilty of an offence and on conviction be liable to a fine not exceeding R4 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.
6 No compensation shall be payable by the Permanent Secretary, the Commissioner, an inspector and any other
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officer employed in carrying out the provisions of this Act in respect of any act done in good faith under this Act.
PART III Labour Advisory Council
7. There is hereby established a council to be known as the Labour Advisory Council.
8. (1) Subject to the provisions of this Act, the functions of the Council shall be to make such investigations as it may deem necessary, and to advise the Minister generally or in respect of any particular case in relation to -
(a) the formulation and implementation of a national policy relating to basic conditions of employment, including vocational training, apprenticeship and health, safety and welfare at work of employees;
(b) the promotion of the relationship between employer and employee, including matters relating to collective bargaining;
(c) the amendment or application of the provisions of
this Act or any other law relating to labour matters;
(d) the enactment of legislation, and matters, aimed at
the achievement of the objects of Article 95 of the Namibian Constitution, including-
(i) any proposals or matters to be discussed at
the International Labour Conference;
(ii) the ratification of international labour conventions;
(iii) the enforcement of any recommendations made by the International Labour Conference;
(vi) any matters which may be raised in reports to be made to the International Labour Office;
(e) the collection and compilation of information for purposes of the administration of the provisions of this Act and the publication of statistics in relation to such information;
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(f) the prevention or reduction of unemployment;
(g) any power, duty or function which mayor is required to be exercised or performed in terms of this Act after consultation with the Council;
(h) any other labour matter which in the opinion of the Council is necessary or expedient for purposes of achieving the objects of this Act, or which is referred to the Council by the Minister for any such purpose.
(2) For purposes of subsection (1), the Council shall investigate, on at least one occasion in every year, matters referred to in paragraphs (a), (b), (c), (d) and (e) of subsection (1) and report thereon to the Minister.
9. (1) The Council shall consist of-
(a) the Minister or a person designated by him or her
during the Minister's pleasure, who shall be the chairperson of the Council;
(b) four persons appointed by the Minister to represent
the interests of the State;
(c) eight other members appointed by the Minister of
whom -
(i) four are, in the opinion of the Minister,
representative of the interests of registered trade unions;
(ii) four are, in the opinion of the Minister,
representative of the interests of registered employers' organizations,
and selected by the Minister from persons nominated in accordance with the provisions of subsection (2).
(2) For purposes of the appointment of members in terms of paragraph (c) of subsection (1), the Minister shall from time to time invite, by notice in writing, registered trade unions and registered employers' organizations to nominate such number of persons as may be specified in such notice who in the opinion of any such registered trade union or registered employers' organization represent their
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interests and are fit and proper persons to be appointed as members of the Council.
(3) The Council may co-opt, with the concurrence of the Minister, on such conditions as may be determined by the Minister and for such period, if any, as may be so determined from time to time, one or more persons to assist it in the performance of its functions or assist a committee in the performance of such committee's functions, but such person or persons shall not be entitled to vote on any matter before the Councilor such committee.
10. (1) The Council may-
(a) in its discretion establish one or more committees which shall consist of two or more members of the Council nominated for such purpose by the Council to advise it on any of its functions;
(b) assign to any such committee, with the approval of
the Minister and subject to such conditions as he or she may prescribe (including conditions relating to reporting to the Council by any such committee), such functions of the Council, and give such directives in connection therewith, as the Council may deem expedient.
(2) For purposes of the provisions of this Act, any function performed by a committee referred to in subsection (1) by virtue of the provisions of paragraph (b) of that subsection shall be deemed to have been performed by the Council.
11. (1) Subject to the provisions of section 12(2), a member of the Council other than the chairperson shall hold office for a period not exceeding three years, but may be re- appointed or redesignated, as the case may be, at the expiration of that period.
(2) A member of the Council who is not employed in the public service on a full-time basis shall be paid out of moneys appropriated by law such remuneration and allowances, if any, and in respect of a journey undertaken for purposes of the business of the Council, such subsistence and travelling allowances as the Minister may, in concurrence with the Minister of Finance, determine.
(3) The remuneration and allowances determined
under subsection (2), may differ according to the office held
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Meetings of Council and decisions.
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by the member of the Council concerned or the functions performed by him or her.
12. (1) A member of the Council shall vacate his or her office, if -
(a) such member is by reason of his or her physical or mental illness or for any other reason incapable of acting as member of the Council;
(b) such member is convicted of an offence and sentenced to imprisonment without the option of a fine;
(d) such member, by writing under his or her hand addressed and delivered to the Permanent Secretary, resigns from his or her office as a member of the Council;
(e) such member has absented himself or herself from two consecutive meetings of the Council without the leave of the Council.
(2) Any casual vacancy on the Council caused by the death or vacation of office by any member of the Council shall, with due regard to the provisions of section 9, be filled for the unexpired portion of the period of office of the member of the Council who has died or vacated his or her office, as the case may be.
13. (1) Subject to the provisions of section 8(2) and subsection (2) of this section, a meeting of the Council shall be held at such time and place as may be determined by the chairperson of the Council.
(2) The chairperson of the Council shall on a reasoned request in writing of at least four members of the Council or, if the chairperson is not the Minister, on the request of the Minister convene a special meeting of the Council.
(3) The majority of the members of the Council shall form a quorum for a meeting of the Council.
(4) The chairperson of the Council shall preside at all meetings of the Council at which he or she is present.
(5) When the chairperson of the Council is absent from a meeting of the Council the members of the Council
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present shall elect a chairperson from among their number to act as chairperson at that meeting, and while he or she so acts he or she shall have all the powers and shall perform all the duties of the chairperson.
(6) A decision of the majority of the members of the Council present at the meeting of the Council shall be a decision of the Council: Provided that in the event of an equality of votes the person presiding at the meeting shall have a casting vote in addition to his or her deliberative vote.
(7) No decision taken by the Councilor act performed under the authority of the Council shall be invalid by reason only of a vacancy on the Council, or by reason only of the fact that any person who is not entitled to sit as a member of the Council sat as a member of the Council when the decision was taken or the act was authorized, if the decision was taken or the act was authorized by the requisite majority of the members of the Council who were present at the time and entitled to sit as such members.
(8) The Council shall cause a record to be kept of the proceedings of the meetings of the Council.
(9) The Council may make rules in relation to the holding of, and procedure at, meetings of the Council.
14. (1) The administrative and clerical work involved in the performance of the functions of the Council shall be performed by officers in the Ministry of Labour and Manpower Development made available by the Permanent Secretary for that purpose.
(2) The Permanent Secretary may designate an officer
referred to in subsection (1) as secretary of the Council.
(3) The Council may, after consultation with the
Permanent Secretary and on such conditions as may be mutually agreed upon, obtain the services of such persons as it may deem necessary to advise it in connection with the performance of its functions.
PART IV Labour Court and district labour courts
15. (1) There is hereby established -
(a) a Labour Court; and
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(b) a district labour court for each district in respect of
which a magistrate's court is established,
each of which shall be a court of record.
(2) The proceedings in the Labour Court and every district labour court shall be carried on in open court, except in so far as any such court has, in the interests of good order or public morals and subject to such conditions, if any, directed otherwise.
...
16. (1) The Labour Court shall consist of a judge or acting judge of the High Court of Namibia designated by the Judge President for such purpose for the period of the hearing of, or for, such cases as may be determined by the Judge President, and who shall be the president of the Court.
(2) The president of the Labour Court may -
(a) on his or her own motion or on the request of any party to the proceedings in the Labour Court, appoint two or more assessors of whom an equal number shall be selected from amongst persons named in each of the lists compiled in terms of subsection (3);
(b) if he or she deems it desirable in the interests of justice, appoint any other person as assessor or such other number of persons as additional assessors as may be determined by him or her on account of his, her or their special knowledge and experience in any field which is related to any matter to be adjudicated upon by the Labour Court in any such proceedings, whether or not the name of any such person is, or the names of such other persons are, contained in any of the lists referred to in paragraph (a),
to advise the Labour Court on any matter to be adjudicated upon by the Labour Court in the proceedings in question.
(3) For purposes of the appointment of assessors referred to in paragraph (a) of subsection (2), the Minister shall -
(a) after consultation with such registered trade unions
as in the opinion of the Minister may be representative of employees in Namibia;
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(b) after consultation with such registered employers' organizations as in the opinion of the Minister may be representative of employers in Namibia,
compile separate lists, in respect of such employees and such employers, of persons containing on each list the names of such equal number of persons as the Minister may deem necessary for purposes of the provisions of this Part who in the opinion of the Minister are fit and proper persons to act, for purposes of subsection (2)(a), on account of their special knowledge and experience in the field of labour relations, as assessors.
(4) An assessor appointed in terms of subsection (2) who is not employed in the public service on a full-time basis shall be paid out of moneys appropriated by law, such remuneration and allowances, if any, and in respect of a journey undertaken for purposes of the business of the Labour Court, such subsistence and travelling allowances as the Minister may, with the concurrence of the Minister of Finance, determine.
17. (1) A district labour court shall consist of a magistrate, designated by the Minister of Justice or any officer in the Ministry of Justice designated by him or her, who shall be the chairperson of the district labour court.
(2) The chairperson of the district labour court may -
(a) on his or her own motion or on the request of any party to the proceedings in the district labour court, appoint two assessors of whom one each shall be selected from amongst persons named in each of the lists compiled in terms of section 16(3);
(b) if he or she deems it desirable in the interests of justice, appoint any other person as assessor or such other number of persons as additional assessors as may be determined by him or her on account of his, her or their special knowledge and experience in any field which is related to any matter to be adjudicated upon by the district labour court in any such proceedings, whether or not the name of any such person is, or the names of such other persons are contained in any of the lists referred to in paragraph (a),
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to advise the district labour court on any matter to be adjudicated upon by such district labour court in the proceedings in question.
(3) A magistrate referred to in subsection (1) may be designated in respect of one or more district labour courts.
(4) Subsection (4) of section 16 shall apply mutatis mutandis in relation to a district labour court.
18. (1) The Labour Court shall have exclusive jurisdiction -
(a) to hear and determine-
(i) any appeal from any district labour court;
(ii) any appeal noted in terms of section 54(4), 68(7), 70(6), 95(4), 100(2) or 114(6);
(b) to consider and give a decision on -
(i) any application made to the Labour Court in accordance with the provisions of this Part in terms of any provisions of this Act;
(ii) any application to review and set aside or correct any decision taken by the Minister or the Permanent Secretary, the Commissioner, any inspector or any officer involved in the administration of the provisions of this Act;
(c) to review the proceedings of any district labour court brought under review on the grounds mutatis mutandis referred to in section 20 of the High Court Act, 1990 (Act 16 of 1990);
(d) to grant in any application referred to in paragraph (b) or (c) any urgent interim relief until a final order has been made in terms of the said paragraph (b) or (c);
(e) to issue any declaratory order in relation to the application or interpretation of any provision of this Act, or any law on the employment of any person in the service of the State or any term or condition of any collective agreement, any wage order or any contract of employment;
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(f) to make any order which it is authorized to make under any provision of this Act or which the circumstances may require in order to give effect to the objects of this Act;
(g) generally to deal with all matters necessary or incidental to its functions under this Act, including any labour matter, whether or not governed by the provisions of this Act, any other law or the common law.
(2) A party to any proceedings before the Labour Court may appear in person or be represented by a legal practitioner admitted to practise as an advocate in terms of the Admission of Advocates Act, 1964 (Act 74 of 1964), or as an attorney in terms of the Attorneys Act, 1979 (Act 53 of 1979).
(3) Subject to the provisions of this section and sections 16 and 22,the Labour Court shall, in the exercise or performance of its powers and functions, have all the powers of the High Court of Namibia under the High Court Act, 1990 (Act 16 of 1990), as if its proceedings were proceedings conducted in, and any order made by it were an order of, the said High Court of Namibia.
19. (1) A district labour court shall have jurisdiction-
(a) to hear all complaints lodged with such district labour court by an employee or employer (hereinafter referred to as the complainant) against an employer or employee (hereinafter referred to as the respondent) for an alleged contravention of, or alleged failure to comply with, any provision of this Act or any term and condition of a contract of employment or a collective agreement;
(b) to make any order against, or in respect of, the
respondent or the complainant, as the case may be, which it is empowered to make under any such provision of this Act.
(2) (a) A district labour court may on the request of the respondent and with the consent of the complainant, or on its own motion, if it is of the opinion that the subject matter of the complaint relates to a dispute of interests, refer the complaint to the Commissioner.
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(b) A complaint referred to the Commissioner in terms of paragraph (a) shall be deemed to be a dispute reported to the Commissioner in terms of section 74.
(c) If a complaint is referred to the Commissioner in terms of paragraph (a) the complainant shall, within a period of 14 days as from the date on which the complaint has so been referred or such longer period as the Commissioner may on good cause shown allow, comply with the provisions of subsection (2) of section 74.
(3) Any complainant, if he or she so desires, may be represented in a district labour court by a person who shall be designated by the Permanent Secretary generally or in every particular case for such purpose, and any such complainant and any respondent may appear in person in such district labour court or be represented by his or her own legal practitioner admitted to practise as an advocate in terms of the Admission of Advocates Act, 1964 (Act 74 of 1964), or as an attorney in terms of the Attorneys Act, 1979 (Act 53 of 1979), or by any other person duly authorized by such complainant or respondent, as the case may be.
(4) Subject to the provisions of this section and sections 17 and 22, a district labour court shall, in the exercise or performance of its powers and functions, have all the powers of a magistrate's court under the Magistrates' Court Act, 1944 (Act 32 of 1944), as if its proceedings were proceedings conducted in, and any order made by it were a judgment of, a magistrate's court.
20. The Labour Court or any district labour court shall not make any order as to any costs incurred by any party in relation to any proceedings instituted in the Labour Court or any such district labour court, except against a party which in the opinion of the Labour Court or district labour court has, in instituting, opposing or continuing any such proceedings, acted frivolously or vexatiously.
21. (1) Any party to any proceedings before-
(a) the Labour Court may appeal, with the leave of the Labour Court or, if such leave is refused, with the leave of the Supreme Court of Namibia granted on application by way of petition to the Chief Justice, to a full court of the High Court of Namibia, on any question of law against any decision or order
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of the Labour Court or any judgment or order of the Labour Court given on appeal from a judgment or order from a district labour court, as if such judgment or order were a judgment or order of the High Court of Namibia;
(b) any district labour court may appeal to the Labour Court against any judgment or order given by such district labour court, as if such judgment or order were a judgment or order of a magistrate's court.
(2) The noting of an appeal under subsection (1) shall not stay the execution of the Labour Court's or a district labour court's judgment or order, unless the Labour Court on application directs otherwise.
22. (1) There is hereby established a board to be known as the Labour Courts' Rules Board which shall consist of -
(a) the Judge President of the High Court of Namibia
or any judge of that Court designated from time to time by the Judge President, who shall be the chairperson of the Labour Courts' Rules Board;
(b) one person practising as an advocate in Namibia and nominated by the professional organization representing the interests of advocates;
(c) one person practising as an attorney in Namibia and nominated by the professional organization representing the interests of attorneys;
(d) one person serving in the Ministry of Justice designated by the Minister of Justice;
(e) one person serving in the Ministry of Labour and Manpower Development designated by the Minister.
(2) A member of the Labour Courts' Rules Board other than the chairperson and the members referred to in paragraphs (d) and (e) of subsection (1) shall be paid out of moneys appropriated by law such remuneration and allowances, if any, and in respect of a journey undertaken for purposes of the business of the Labour Courts' Rules Board, such subsistence and travelling allowances as the Minister may, with the concurrence of the Minister of Finance, determine.
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(3) (a) The majority of the members of the Labour Courts' Rules Board shall form a quorum for a meeting of that Board.
(b) A decision of the majority of the members of the Labour Courts' Rules Board present at a meeting thereof shall be a decision of that Board: Provided that in the event of an equality of votes the chairperson of that Board shall in addition to his or her deliberative vote have a casting vote.
(4) The Labour Courts' Rules Board may, after consultation with the Council, make rules separately in respect of the Court and the district labour courts in relation to-
(a) the conduct of the proceedings of the Labour Court
and the district labour courts;
(b) the manner, including any matter relating to the admissibility of evidence, in which any matter to be heard and determined by the Labour Court or any district labour court shall be brought and continued before it with a view to effecting a speedy, fair and equitable disposal of any such matter;
(c) the tariff of fees chargeable by legal representatives;
(d) with the concurrence of the Minister of Finance, the fees payable in respect of the service or execution of any process of the Labour Court or any district labour court and the tariff of costs and expenses which may be allowed in respect of such service or execution;
(e) the taxation of bills of costs;
(0 the hours during which the office of the registrar of the Labour Court or the clerk of the district labour court shall be open for a transaction of business;
(g) the period within which and the manner in which an appeal from a decision of the Labour Court to the full court of the High Court of Namibia or from any district labour court to the Labour Court shall be noted;
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Application of this Part.
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(h) generally, any matter which may be necessary or expedient to prescribe in order to ensure the proper dispatch and conduct of the proceedings of the Labour Court or any district labour court.
(5) Until such time as the rules referred to in subsection (4) are made under that subsection -
(a) in the case of the Labour Court, the Rules of the High Court of Namibia made in terms of section 39 of the High Court Act, 1990 (Act 16 of 1990);
(b) in the case of the district labour courts, the rules of magistrates' courts made in terms of section 25 of the Magistrates' Courts Act, 1944 (Act 32 of 1944),
shall apply mutatis mutandis in relation to the Labour Court or the district labour courts, as the case may be, as if the Labour Court were the High Court of Namibia and any district labour court were a magistrates court.
23. Any person who contravenes or fails to comply with an order of the Labour Court or district labour court shall be guilty of an offence and on conviction be liable to the penalties which may by law be imposed for contempt of court.
24. Notwithstanding the provisions of any other law to the contrary, no proceedings shall be instituted in the Labour Court or any complaint lodged with any district labour court after the expiration of a period of 12 months as from the date on which the cause of action has arisen or the contravention or failure in question has taken place or from the date on which the party instituting such proceedings or lodging such complaint has become or could reasonably have become aware of such cause of action or contravention or failure, as the case may be, except with the approval of the Labour Court or district labour court, as the case may be, on good cause shown.
PART V Basic conditions of employment
25. The provisions of this Part shall not be construed as preventing an employer from agreeing to, or granting, any condition of employment which is more favourable to any employee than any condition of employment referred to in this Part.
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26. (1) No employer shall require or permit-
(a) any security guard or a guard to work for more than 60 hours during any week;
(b) any employee other than a security guard or a guard to work for more than 45 hours during any week.
(2) In determining for purposes of subsection (1) the time worked by an employee during a week -
(a) any time worked by him or her on a Sunday shall, in the case of an employee employed for any purpose referred to in section 33(2), be disregarded;
(b) any time taken up by meal intervals which the
employee was allowed during his or her spread- overs during that week shall -
(i) in the case of a security guard or guard, be regarded as time worked by him or her;
(ii) in the case of any other employee be disregarded;
(c) any overtime worked by him or her during that week and not exceeding the maximum weekly overtime mentioned in or fixed under section 32, shall be disregarded.
27. (1) No employer shall require or permit-
(a) a security guard or a guard who is a day worker and-
(i) who works not more than five days during a week, to work for more than 12 hours on any day; or
(ii) who works six days during a week, to work for more than 10 hours on any day;
(b) a casual employee to work for more than nine hours on any day; or
(c) any other employee -
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(i) who works not more than five days during a week, to work for more than nine hours on any day; or
(ii) who works six days during a week, to work for more than seven and one-half hours on any day, unless the time worked by him or her on one day of the week does not exceed five hours, in which case the time worked by him or her on anyone of the other days of that week shall not exceed eight hours.
(2) In determining for purposes of subsection (1) the
time worked by an employee on a day-
(a) any time taken up by meal intervals which the employee was allowed during his or her spread- overs during that week shall -
(i) in the case of a security guard or guard, be regarded as time worked by him or her;
(ii) in the case of any other employee, be disregarded;
(b) any overtime worked by him or her on that day not exceeding the maximum daily overtime mentioned in or fixed under section 32, shall be disregarded.
28. (1) No employer shall require or permit-
(a) a security guard or a guard who is a shift worker and-
(i) who works not more than five shifts during a week, to work a shift of longer than 12 hours; or
(ii) who works six shifts during a week, to work a shift of longer than 10 hours;
(b) a shift worker who is employed for any purpose referred to in section 33(2), to work a shift of longer than seven and one-half hours; or
(c) any other shift worker -
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(i) who works not more than five shifts during a week, to work a shift of longer than nine hours; or
(ii) who works six shifts during a week, to work a shift of longer than seven and one-half hours unless one of the shifts worked by him or her during any week does not exceed five hours, in which case none of the other shifts worked by him or her during that week shall exceed eight hours.
(2) In detennining for pUIposes of subsection (1) the duration of a shift worked by an employee -
(a) any time taken up by a meal interval which the employee was allowed during the spread-over in which that shift was worked, shall -
(i) in the case of a security guard or a guard, be regarded as time worked by him or her;
(ii) in the case of any other shift worker, be disregarded;
(b) any overtime worked by him or her during the spread-over in which that shift was worked and not exceeding the maximum daily overtime mentioned in or fixed under section 32, shall be disregarded.
29. Where an employee employed in or in connection with a shop is required to attend to a customer after completion of the ordinary working hours mentioned in section 26,27 or 28, according to whatever hours are applicable to the employee concerned, those working hours may be extended not more than 15 minutes per day or per shift, as the case may be, but in the aggregate by not more than one hour during any week.
30. (1) No employer shall require or permit an employee to work for a spread-over of more than 12 hours.
(2) The provisions of subsection (1) shall not apply in respect of an employee while he or she perfonns emergency work or work connected with the arrival, departure, provisioning, loading or unloading of a ship or aircraft used for the transportation of passengers or goods, or the arrival, departure, provisioning, loading or unloading of a truck or other heavy vehicle used for the transportation of passengers, livestock or perishable goods.
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31. (1) No employer shall require or permit an employee -
(a) to work for more than five hours continuously without a meal interval of not less than one hour, or, where subsection (2) has been applied, of not less than the agreed time;
(b) to perform any work during his or her meal interval.
(2) An employer may conclude an agreement with his or her employee to shorten such employee's meal interval to not less than 30 minutes, but any such agreement shall not be of any force and effect unless the employer has given written notice of such agreement to the Permanent Secretary.
(3) For the purposes of this section -
(a) a period of work interrupted by an interval of less than one hour, or, in the case of a meal interval regulated by an agreement under subsection (2), by an interval of less than the agreed time, shall be deemed to be uninterrupted;
(b) a driver of a motor vehicle who during his or her meal interval does no work other than being or remaining in charge of the motor vehicle, and its load, if any, shall be deemed not to be working during such interval;
(c) the time by which an employee's meal interval exceeds one hour and 30 minutes, shall be regarded as time worked by the employee.
(4) The provisions of this section shall not apply in respect of -
(a) an employee while he or she performs work referred to in section 30(2);
(b) a security guard or a guard; or
(c) a shift worker employed for any purpose referred to in section 33(2).
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Work on Sundays and public holidays.
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32. (1) In this section "day" shall in the case of a shift worker mean a period of 24 consecutive hours reckoned from the time when such shift worker first commences work.
(2) No employer shall require or permit an employee to work overtime otherwise than in terms of an agreement concluded by him or her with the employee and provided such overtime does not exceed three hours on any day or 10 hours during any week, or, where subsection (4) has been applied, does not exceed the maximum overtime fixed under that subsection.
(3) An employer shall pay to an employee who works overtime an amount calculated at a rate of not less than -
(a) in the case of any day other than a Sunday or a public holiday, one and one-half times;
(b) in the case of a Sunday or a public holiday, double,
his or her remuneration for one hour in respect of the overtime so worked by him or her.
(4) (a) The Permanent Secretary may on application by an employer and with the concurrence of the employee or employees affected thereby by notice in writing to such employer and such employee or employees increase the maximum overtime mentioned in subsection (2) in relation to anyone or more of or all the employees of that employer or any particular category of such employees mentioned in such notice.
(b) A notice under paragraph (a) shall be issued for such period and on such conditions as may be specified in such notice and may at any time be withdrawn or amended by the Permanent Secretary.
(5) The provisions of subsection (2) shall not apply in respect of an employee while he or she performs work referred to in section 30(2).
33. (1) No employer shall require or permit an employee to perform any work on a Sunday or public holiday.
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(2) The provisions of subsection (1) shall not apply to
an employer who employs an employee for purposes of -
(a) performing any work referred to in section 30(2);
(b) carrying on business on a Sunday or public holiday in a shop, hotel, boarding house or hostel, which he or she lawfully keeps open on a Sunday or public holiday;
(c) performing any work in domestic service in a private household;
(d) performing, in the course of any farming operations, any essential work which is required to be performed on a Sunday or public holiday;
(e) with the approval of the Permanent Secretary granted by notice in writing generally or in every particular case with the concurrence of the employee or employees concerned upon an application made to the Permanent Secretary by such employer in such form as may be determined by the Permanent Secretary, performing any other work specified in such notice;
(f) performing any work, in the course of operations in any industry, which in the opinion of the Minister is, by reason of the nature of such work, required to be performed continuously and declared by notice in the Gazette by the Minister to be work to which the provisions of subsection (1) shall, subject to such conditions, if any, as may be determined by the Minister and specified in such notice, not apply.
(3) When an employee works for any period of time on a Sunday or public holiday as provided in subsection (1) his or her employer shall, on the request of the employee, either-
(a) pay to him or her an amount of not less than double his or her rate of remuneration in respect of the period of time actually worked by him or her on such Sunday or public holiday; or
(b) pay to him or her an amount of not less than one and one-half of such rate of remuneration and grant to him or her in respect of the period of time
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so worked on such Sunday or public holiday an equal period of time in the next succeeding week on which he or she is not required to work.
(4) When an employee does not work on a public holiday which falls on a day which otherwise is an ordinary working day for him or her, his or her employer shall pay to him or her, on the next succeeding payday, in respect of that public holiday an amount which shall be not less than the remuneration payable to him or her in respect of the time (excluding overtime) which is ordinarily worked by him or her on that day of the week.
(5) Any amount payable to an employee in terms of subsection (3)(a) shall be paid out to him or her not later than the payday next succeeding the day in respect of which such amount is payable.
(6) For the purposes of subsections (3) and (4) a shift worked by an employee which falls on a Sunday or public holiday as well as on another day shall be deemed to have been worked on that Sunday or public holiday, but if the major part of the shift falls on that other day such shift shall be deemed to have been worked on that other day.
34. (1) No person shall require or permit any employee to work on night work -
(a) if such employee is under the age of 18 years;
(b) in the case of a female employee, during any period of eight weeks before the expected date of her confinement and eight weeks after such confinement or during such other period, whether before such date or after such confinement, certified in writing by a medical practitioner to be necessary for the health of such female employee or her child.
(2) When an employee other than an employee referred to in subsection (1) is employed on night work, his or her employer shall pay to such employee, in addition to the remuneration payable in respect of the time, excluding overtime, ordinarily worked by him or her on a weekday, an amount of not less than an amount calculated at a rate of six per cent of such remuneration.
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35. (1) For purposes of the provisions of this Act-
(a) the remuneration of an employee, other than an employee referred to in subsection (2), for one hour shall be calculated on the basis of the number of hours ordinarily worked by him or her during a week, but not exceeding the ordinary working hours mentioned in section 26 which are applicable to him or her, and the remuneration ordinarily received by him or her during a week in respect of that number of hours;
(b) the daily remuneration of an employee, other than an employee referred to in subsection (2), shall be calculated -
(i) in the case of an employee who works five days during a week, by dividing the remuneration ordinarily received by him or her during a week by five, and, in the case of an employee who works six days during a week, by dividing the remuneration ordinarily received by him or her during a week, by six; or
(ii) in the case of an employee other than an employee referred to in subparagraph (i), by multiplying his or her remuneration for one hour by the number of hours which he or she ordinarily works on a day, but not exceeding the ordinary working hours of such employee;
(c) the weekly remuneration of an employee, other than an employee referred to in subsection (2), who receives his or her remuneration fortnightly or monthly, shall be calculated by dividing the remuneration ordinarily so received by him or her, in the case of an employee who ordinarily receives his or her remuneration fortnightly, by two, and, in the case of an employee who ordinarily receives his or her remuneration monthly, by four and one- third; or
(d) the monthly remuneration of an employee other than an employee referred to in subsection (2), who receives his or her remuneration fortnightly or weekly, shall be calculated by multiplying the remuneration ordinarily received by him or her, in
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the case of an employee who ordinarily receives his or her remuneration by two and one-sixth, and, in the case of an employee who ordinarily receives his or her remuneration weekly, by four and one- third.
(2) For purposes of the provisions of this Act -
(a) the weekly remuneration of an employee who is remunerated on a basis other than in accordance with the time actually worked by him or her, shall be deemed to be the average weekly income received by him or her in respect of his or her employment with his or her employer for the preceding 13 weeks, or, if he or she has worked for a shorter period, for the number of completed weeks so worked;
(b) the remuneration of such an employee for one hour shall be calculated by dividing the weekly remuneration, as calculated in tenus of paragraph (a), by 45; and
(c) the daily remuneration of such an employee shall be calculated -
(i) in the case of such an employee who works
five days during a week, by multiplying the hourly remuneration, as calculated in tenus of paragraph (b), by nine; and
(ii) in the case of an employee who works six days during a week, by multiplying the hourly remuneration, as calculated in tenus of paragraph (b), by seven and one-half.
36. (1) The remuneration payable to an employee, other than a casual employee, shall be paid to such employee weekly or, if the employer and his or her employee so agree, fortnightly or monthly, as the case may be, on the payday in respect of which that remuneration is payable or, in the case of an employee whose contract of employment is tenuinated before such payday, on the day on which such contract of employment is tenuinated, not later than one hour after the completion of the ordinary working hours of that employee.
(2) The remuneration payable to a casual employee shall be paid daily or, if the employer and his or her
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employee so agree, weekly, fortnightly or monthly, as the case may be, not later than the time contemplated in subsection (1).
(3) The remuneration payable to an employee-
(a) shall be handed over to such employee in a sealed envelope, or together with a statement, on which such particulars as may be determined by the Permanent Secretary by notice in the Gazette or by notice in writing addressed and delivered to the employer concerned are indicated, which remuneration and envelope or statement shall then become the property of that employee;
(b) may, on the written request by any employee other than a casual employee, be paid into a bank or building society or post office account, provided the statement referred to in paragraph (a) is handed over to such an employee.
37. No employer shall-
(a) require or permit an employee to payor repay to him or her any remuneration payable or paid to that employee in accordance with this Act or any order made in terms of this Act in relation to the payment of remuneration;
(b) do any act or permit any act to be done as a direct or indirect result of which an employee is deprived of the benefit or of any portion of the benefit of any remuneration so payable or paid;
(c) require or permit an employee to give a receipt for, or otherwise to represent that he or she received, more than he or she actually received by way of remuneration;
(d) require an employee-
(i) to make use of any shop held by or on behalf of such employer or of services rendered by or on behalf of such employer; or
(ii) to buy or otherwise acquire from such employer any goods acquired by such employer for purposes of resale or provision
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to his or her employees, at any price or other consideration exceeding an amount equal to the price paid by such employer for such goods plus the reasonable expenses incurred by such employer in so acquiring such goods;
(e) pay any employee, other than an employee employed in a shop, bottle store or other place where intoxicating liquor is stored or sold or any place of amusement, in any such shop, bottle store or place;
(f) levy a fine against an employee for any act or omission committed by such employee in the course of his or her employment otherwise than by way of disciplinary action lawfully taken against such employee;
(g) deduct from an employee's remuneration any amount, except -
(i) an amount of which the deduction is to be made in terms of an order of court or is authorized by any legal provision;
(ii) when an employee is for any cause not recognized by law as sufficient absent from work, an amount not exceeding the remuneration which would have been payable to him or her had he or she not been so absent from work;
(iii) when an employee is so absent from work on any working day before or after a public holiday, an amount not exceeding the remuneration which would have been payable to him or her in respect of the said working day and the said public holiday had he or she not been so absent;
(iv) when an employer for any cause recognized by law as sufficient by written notice to any employee, other than a casual employee, require that that employee on any succeeding day or days should work, as a temporary measure, less hours than the ordinary working hours or should perform no work, an amount equal to the difference between the remuneration which would have been
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payable to that employee in respect of the day or days in question had he or she worked the total number of ordinary working hours and the amount payable to him or her in respect of the number of hours, if any, actually worked by him or her, or an amount equal to one-third of the remuneration which would have been payable to him or her had he or she worked the total number of ordinary working hours, whichever amount is the lesser;
(v) an amount authorized by that employee in writing which is not greater than an amount equal to one-third of the remuneration of that employee and which -
(aa) is due to the employer in respect of housing furnished by the employer to the employee, goods sold by the employer to the employee or any loan or advance on his or her remuneration granted by the employer to the employee;
(bb) the employer has paid or has undertaken to pay in connection with any loan granted to such employee in order to acquire a dwelling, or in connection with the hiring of a dwelling or other accommodation;
(cc) is due by the employee to a vacation, sick, medical, insurance, savings, provident or pension fund; or
(dd) subject to the provisions of section 60, is due by the employee to any registered trade union in respect of any fees, subscriptions, contributions, special levies or other moneys by virtue of such employee's membership of such trade umon.
38. (1) If an employee is by virtue of his or her employment required to live in on the place of his or her employment or to reside on any premises of his or her employer, such employer shall -
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(a) provide such employee with such housing, including sanitary and water facilities, as may comply with the reasonable requirements of such employee and, in the case of an employee who is required to live in or reside on agricultural land, of his or her dependants;
(b) permit, in the case of an employee who is required to live in or reside on agricultural land, such employee, in addition, to keep such livestock and to carry on such cultivation on such land as may be necessary for such employee to provide for the reasonable needs of himself or herself and of his or her dependants.
(2) The provisions of paragraph (b) of subsection (1) shall not apply in relation to an employee who is provided by his or her employer, on such basis as may be determined by mutual agreement, with food or rations or an additional allowance to provide for the reasonable needs of such employee and of his or her dependants.
(3) For purposes of this section "dependants" mean, in relation to an employee, such employee's husband or wife, as the case may be, whether or not such employee is married to him or her, and their or his or her dependent children.
39. (1) (a) An employer shall grant an employee at least 24 consecutive days' leave of absence on full remuneration in respect of each period of 12 consecutive months for which the employee is employed by him or her (hereinafter referred to as a leave cycle): Provided that the period of leave may be reduced by the number of days on which the employee was during the relevant leave cycle granted occasional leave on full remuneration at his or her request.
(b) No employer shall during an employee's leave referred to in paragraph (a) require or permit that employee to perform any work as his or her employee.
(2) The leave referred to in subsection (1)(a)-
(a) shall be granted by the employer as from a date determined by him or her, but not later than four months after the expiration of the leave cycle
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concerned: Provided that if an employee has agreed thereto in writing before the expiration of the said period of four months, his or her employer may grant such leave to him or her as from a date not later than two months after the expiration of the said period of four months;
(b) shall not be granted by the employer to be concurrent with any period of sick leave granted in terms of section 40 or maternity leave granted in terms of section 41 or with a period of notice of termination of the contract of employment;
(c) shall for each public holiday which falls within the employee's period of leave and which falls on a day which otherwise would have been an ordinary working day for such employee, be extended by one working day with full remuneration.
(3) An employer shall pay an employee to whom leave is granted in terms of subsection (1), the remuneration in respect of his or her leave not later than the last working day of the employee before the commencement of his or her leave, or, at the written request of the employee, not later than the first payday for such employee after the expiration of his or her leave.
(4) Upon termination of an employee's employment his or her employer shall pay to him or her -
(a) his or her full remuneration in respect of any leave which accrued to him or her, but was not granted before the date of termination of his or her employment; and
(b) an amount not less than one-quarter of his or her weekly remuneration in respect of each completed month of employment with the employer after the date on which he or she last became entitled to leave in terms of subsection (1), or, in the case of an employee who has been employed for less than 12 months, after the date of commencement of his or her employment: Provided that an employer shall not be obliged to pay such an amount in terms of this paragraph to an employee who leaves his or her employment without having given the required notice of termination of his or her contract of employment in terms of section 47 and having worked during such a period of notice,
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unless in failing to give such notice or to work during such period he or she was acting within his or her rights:
Provided that an employer may deduct from any amount payable in terms of this subsection, any amount paid to the employee concerned in respect of any day on which he or she was granted occasional leave at his or her written request.
(5) The amount to be paid to an employee in terms of subsection (3) or (4) shall be calculated at least at the rate of the remuneration which the employee was receiving immediately prior to the date upon which his or her leave commenced or his or her employment terminated, as the case may be .
(6) Any period during which an employee -
(a) is on leave by virtue of subsection (1);
(b) is on sick leave by virtue of section 40(1);
(c) is absent from work on the instructions or on the request of the employer,
amounting in the aggregate in any leave cycle to not more than 12 weeks in respect of the periods referred to in paragraphs (a), (b) and (c) shall, for the purposes of subsections (1) and (4), be deemed to be employment with his or her employer.
(7) In this section "employer" includes -
(a) where the employer has died, the executor of his or
her estate;
(b) where the estate of the employer is sequestrated or
liquidated or his or her business is transferred, the executor, the administrator, trustee, liquidator or new owner of the business,
if any such executor, administrator, trustee, liquidator or new owner continues to employ the employee concerned.
(8) For the purposes of this section a leave cycle shall be deemed to commence on -
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(a) the date on which the employee entered the employer's employment;
(b) a day one year prior to the commencement of this Act; or
(c) the date on which the employee under a provision of this Act or a law repealed by this Act or of any law on the employment of persons in the service of the State, in so far as that Act or any such law relates to the remuneration and other conditions of service of persons employed in terms of that Act or any such law, last became entitled to annual leave on full remuneration,
whichever is the latest.
(9) Subject to the provisions of subsection (4), no employer shall agree with an employee to pay to him or her any amount in lieu of leave to which he or she is entitled in terms of subsection (1), or pay any such amount to him or her.
40 (1) An employer shall grant an employee who is absent from work through incapacity -
(a) in the case of an employee who works not more than five days during a week, not less than 30 working days; or
(b) in the case of any other employee, not less than 36 working days,
sick leave in the aggregate on full remuneration during each period of 36 consecutive months for which the employee is employed by him or her (hereinafter referred to as a sick leave cycle): Provided that during the fIrst 12 consecutive months of employment an employee shall not be entitled to sick leave on full remuneration at a rate of more than, in the case of an employee who works not more than fIve days during a week, one working day in respect of each completed period of five weeks employment, and, in the case of every other employee, one working day in respect of each completed month of employment.
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(2) The amount to be paid in terms of subsection (1) to an employee in respect of a day's sick leave on full remuneration, shall not be less than the remuneration payable to him or her in respect of the time (excluding overtime) ordinarily worked by him or her on that day of the week.
(3) An employer shall not be bound in terms of subsection (1) to pay to an employee an amount in respect of any absence from work for a period covering more than two consecutive days, unless the employee produces a medical certificate signed by a medical practitioner and stating the nature and duration of the employee's incapacity: Provided that if an employee has during any period of up to eight weeks received payment in terms of that subsection on two or more occasions without having produced such a certificate to his or her employer, his or her employer shall during the period of eight weeks immediately succeeding the last such occasion not be bound to pay the said amount to the employee in respect of any absence from work, unless he or she produces such a certificate.
(4) The provisions of subsection (1) shall not apply in respect of -
(a) an employee at whose written request an employer makes contributions, at least equal to those made by the employee, to any fund or organization designated by the employee, which fund or organization guarantees to the employee in the event of his or her incapacity the payment to him or her of not less than the equivalent of his or her remuneration for 30 working days in each period of 36 months of employment, if he or she works not more than five days during a week, or 36 working days in each such period if he or she works six days during a week;
(b) any period of incapacity of an employee in respect of which the employer is by or under a provision of any law required to pay to the employee an amount of not less than the equivalent of his or her remuneration.
(5) For the purposes of this section -
(a) any period during which an employee-
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(i) is on leave by virtue of section 39;
(ii) is on sick leave by virtue of subsection (1) of this section;
(iii) is absent from work on the instructions or on the request of his or her employer,
amounting in the aggregate in any sick leave cycle to not more than 36 weeks in respect of the periods referred to in subparagraphs (i), (ii) and (iii) shall be deemed to be employment with his or her employer;
(b) any continuous employment which an employee has had with the same employer at the commencement of this Act, shall be taken into account, and any sick leave on full remuneration granted by the employer to the employee during that period of continuous employment, shall be deemed to have been granted under this section;
(c) "incapacity" shall mean inability to work owing to any sickness or injury other than sickness or injury caused by an employee's own misconduct: Provided that any inability to work caused by an accident or a scheduled disease as defined in section 2 of the Workmen's Compensation Act, 1941 (Act 30 of 1941), shall only be regarded as incapacity during any period in respect of which no compensation is payable in terms of that Act.
41. (1) A female employee who has completed at least 12 months continuous service in the employment of an employer shall, with a view to her confinement, be entitled to at least four weeks maternity leave before the expected date of her confinement, certified in writing by a medical practitioner to be such expected date, and ending at least eight weeks after the date of such confinement, so certified to be such date of confinement.
(2) (a) A female employee referred to in subsection (1) shall not be deprived of any rights which vested in her by virtue of her employment on the date immediately before the date on which her maternity leave commences, and such rights, including any rights in relation to seniority, promotion and any benefits to which she is entitled by virtue of her membership of a medical scheme
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or fund or a pension scheme or other retirement scheme, shall continue as if her period of employment were not interrupted during the period of any maternity leave granted to her in terms of that subsection.
(b) The provisions of paragraph (a) shall not be construed as conferring any right upon the female employee concerned to receive any remuneration during the period of her maternity leave, but such female employee may be entitled to receive during such period such compensation as may be provided for in any law governing security of employment.
(3) An employer shall not terminate any contract of employment of a female employee referred to in subsection (1) during any period of her maternity leave or at the expiry of such leave -
(a) on account of the re-organization of the business carried on by such employer or for economic or technological reasons; or
(b) on account of such female employee being incapable of continuing to perform the work she performed on the date immediately before her maternity leave commenced,
unless such employer has taken all reasonable steps to offer her another appropriate work or such female employee has unreasonably refused to accept any such offer.
42. No person shall-
(a) employ any child under the age of 14 years for any purpose whatsoever;
(b) employ any child between the ages of 14 and 15 years -
(i) in or on any mine or other work performed with a view to mining or winning, or prospecting for, any minerals;
(ii) in or on any premises where -
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(aa) an article or part of an article is made, manufactured, built, assembled, compiled, printed, processed, treated, adapted, repaired, renovated, rebuilt, altered, ornamented, painted, including spray painted, polished, finished, cleaned, dyed, washed, broken up, disassembled, sorted, packed or put into a container, chilled, frozen or stored in cold storage;
(bb) electricity is generated, transformed or distributed;
(cc) a building, bridge, dam, canal, road, railway line, street, runway, sewer or water reticulation system or anything similar is built, constructed, maintained, altered, renovated, repaired, demolished or dismantled;
(dd) machinery is installed, erected or dismantled;
(c) employ any child between the ages of 15 and 16 years underground in any mine;
(d) employ any child referred to in paragraph (b) or (c)
in or on such other place, work or premises as may from time to time be determined by the Minister by notice in the Gazette, or contrary to such restrictions or conditions as may be so determined.
43. (1) No employer shall reduce the rate of remuneration of an employee, or alter the terms and conditions of his or her employment to terms or conditions less favourable to him or her, or alter his or her position relative to other employees employed by that employer to his or her disadvantage, by reason of the fact or because the employer suspects or believes, whether or not the suspicion or belief is justified or correct, that such employee-
(a) has given information to the Minister, the Permanent Secretary, the Commissioner, an inspector or any other person involved in the administration of the provisions of this Act which in terms of this Act he or she is required to give or which relates to terms and conditions of his or her employment or to those of any other employee of
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his or her employer, or has complied with a lawful requirement of the Minister, the Permanent Secretary, the Commissioner, an inspector or any other person involved in the administration of the provisions of this Act, or has given evidence before the Labour Court, a district labour court, the Commission or any other court of law;
(b) has refused or omitted to do any act which the employer required or permitted him or her to do contrary to a provision of this Act;
(c) belongs or has belonged to any trade union the object of which is or was to protect or promote the interests of employees in relation to their employers, or takes or has taken part outside his or her ordinary working hours or, with the consent of the employer, during his or her ordinary working hours in the formation or lawful activities of any such union.
(2) No employer shall refuse to employ any person by reason only of the fact or because the employer suspects or believes, whether or not the suspicion or belief is justified or correct, that such employee belongs or has belonged to any trade union the object of which is or was to protect or promote the interests of employees in relation to their employers, or takes or has taken part outside his or her ordinary working hours or, with the consent of the employer, during his or her ordinary working hours in the formation of lawful activities of any such union.
44. (1) If, upon a complaint lodged with a district labour court in accordance with the provisions of Part IV by an employee, such district labour court is satisfied that the employer of such employee has contravened or failed to comply with the provisions of section 26(1), 27(1), 28(1), 29, 30(1), 32(2) or (3), 33(1), 34(1) or (2), 35(1) or (2), 36(1), (2) or (3)(a), 37, 38(1), 39(1), (2), (3) or (4), 40(1), 41(1),42 or 43 such district labour court may-
(a) in the case of a contravention of or failure to comply with the provisions of section 26(1), 27(1), 28(1), 29, 30(1), 31(1), 32(2) or (3), 33(1), 34(1) or (2) or 35(1) or (2), issue an order in terms of which the employer concerned is ordered-
(i) in the case of a continuing contravention or failure of the provisions of any such section,
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to discontinue any such contravention or failure to the extent specified in such order;
(ii) to remunerate the employee concerned in respect of any hours worked in excess of any hours referred to in any such section as if such employee has worked overtime in accordance with the provisions of section 32;
(iii) in the case of a contravention of, or failure to comply with, the provisions of subsection (2) of section 32, to remunerate in addition the employee concerned in accordance with the provisions of subsection (3) of that section in respect of any hours worked in terms of the said subsection (2);
(iv) in the case of a contravention of, or failure to comply with, the provisions of subsection (1) of section 34, to remunerate in addition the employee concerned in accordance with the provisions of subsection (2) of that section in respect of any hours worked in terms of the said subsection (1);
(v) in the case of a contravention of, or failure to comply with, the provisions of subsection (1) of section 35, to remunerate in addition the employee concerned in accordance with the provisions of subsection (2) of that section in respect of any hours worked in terms of the said subsection (1);
(b) in the case of a continuing contravention of, or failure to comply with, the provisions of subsection (1), (2) or (3)(a) of section 36, issue an order in terms of which the employer concerned is ordered to discontinue any such contravention or failure to the extent specified in such order;
(c) in the case of a contravention of, or a failure to comply with, the provisions of subsection (1) of section 37, issue an order in terms of which the employer concerned is ordered -
(i) in the case of a continuing contravention or failure of the said subsection 0), to discontinue any such contravention or failure to the extent specified in such order;
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(ii) to repay any amount received by way of -
(aa) a repayment referred to in paragraph (a)
of the said subsection (1);
(bb) a fine referred to in paragraph (f) of the said subsection (1);
(iii) to restore any benefit referred to in paragraph (b) ofthe said subsection (1);
(d) in the case of a contravention of, or a failure to comply with, the provisions of subsection (1) of section 38, issue an order in terms of which the employer concerned is ordered -
(i) in the case of a continuing contravention or failure of the said subsection (1), to discontinue any such contravention or failure to the extent specified in such order;
(ii) to provide the employee concerned with the housing or facilities or to permit such employee to keep the livestock and to carry on the cultivation referred to in the said subsection (1) to the extent specified in such order;
(e) in the case of a contravention of, or failure to comply with, the provisions of subsection (1), (2), (3) or (4) of section 39, issue an order in terms of which the employer concerned is ordered-
(i) in the case of a continuing contravention or failure of the said subsection (1), to discontinue any such contravention or failure to the extent specified in such order;
(ii) to grant to the employee concerned leave referred to in the said subsection (1) as provided in subsection (2);
(iii) to pay to such employee the remuneration referred to in the said subsection (3) or (4);
(f) in the case of a contravention of, or failure to comply with, the provisions of subsection (1) of
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section 40, issue an order in terms of which the employer concerned is ordered-
(i) in the case of a continuing contravention or failure of the said subsection (1), to discontinue any such contravention or failure to the extent specified in such order;
(ii) to grant to the employee concerned leave referred to in the said subsection (1);
(iii) to pay to such employee the remuneration referred to in the said subsection (1);
(g) in the case of a contravention of, or failure to comply with, the provisions of subsection (1) of section 41, issue an order in terms of which the employer concerned is ordered-
(i) in the case of a continuing contravention or failure of the said subsection (1), to discontinue any such contravention or failure to the extent specified in such order;
(ii) to grant to the employee concerned leave referred to in the said subsection (1);
(h) in the case of a continuing contravention of, or failure to comply with, the provisions of section 42, issue an order in terms of which the employer concerned is ordered to discontinue any such contravention or failure to the extent specified in such order;
(i) in the case of a contravention of, or failure to comply with, the provisions of section 43, issue an order in terms of which the employer concerned is ordered to restore the employee concerned in the position in which he or she would have been had such employer not contravened or failed to comply with the provisions of section 43, subject to such conditions, if any, as the court may deem just and equitable in the circumstances;
(i) make such other order as the circumstances may require.
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(2) (a) Any employer-
(i) in respect of whom it is alleged that any remuneration, allowance or other amount is payable by him or her to an employee who is employed by him or her, by virtue of any contract of employment or any provision of this Act, whether or not any complaint has been lodged or other proceedings have been instituted in a district labour court or the Labour Court in terms of the provisions of this Act in relation to any such remuneration, allowance or other amount and who admits that such remuneration, allow- ance or other amount is, whether wholly or partly, payable by him or her to such employee;
(ii) who is by virtue of an order made by a district labour court or the Labour Court in terms of the provisions of this Act required to pay any remuneration, al- lowance or other amount to any em- ployee,
may pay such remuneration, allowance or amount to the Permanent Secretary for payment to the employee concerned.
(b) If the remuneration', allowance or amount paid to the Permanent Secretary under paragraph (a) is not paid within six months as from the date on which the Permanent Secretary has received it to the employee concerned, the Permanent Secre- tary shall forthwith pay such remuneration, allowance or amount into the State Revenue Fund.
(c) On application by the Permanent Secretary made at any time within a period of three years as from the date of payment of the remuneration, allow- ance or amount referred to in paragraph (b) into the State Revenue Fund, such remuneration, allowance or amount shall be refunded to the Permanent Secretary for payment to the em- ployee concerned.
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PART VI Termination of contracts of employment
and unfair disciplinary actions
45. (1) For purposes of the provisions of section 46, but subject to the provisions of subsection (2) -
(a) any employee dismissed, whether or not notice has been given in accordance with any provision of this Act or any term and condition of a contract of employment or of a collective agreement;
(b) any disciplinary action taken against any employee,
without a valid and fair reason and not in compliance with a fair procedure, shall be regarded to have been dismissed unfairly or to have been taken unfairly, as the case may be.
(2) For purposes of the provisions of subsection (1),
an employee shall not be regarded to have been dismissed or to have been imposed a disciplinary penalty for a valid and fair reason, if such employee is dismissed or such penalty is imposed -
(a) by reason of the fact or because the employer concerned suspects or believes, whether or not the suspicion or belief is justified or correct, that such employee-
(i) has given information to the Minister, the Permanent Secretary, the Commissioner, an inspector or any other person involved in the administration of the provisions of this Act which in terms of this Act, a collective agreement or a wage order he or she is required to give or which relates to terms and conditions of his or her employment or to those of any other employee of his or her employer, or has complied with a lawful requirement of the Minister, the Permanent Secretary, the Commissioner, an inspector or any other person involved in the administration of the provisions of this Act; or has given evidence before the Labour Court, a district labour court, the Commission or any other court of law;
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(ii) has refused or omitted to do any act which the employer required or permitted him or her to do contrary to a provision of this Act, a collective agreement or wage order;
(iii) belongs or has belonged to any trade union or any other organization of employees the object of which is or was to protect or promote the interests of employees in relation to their employers, or takes or has taken part outside his or her ordinary working hours or, with the consent of the employer, during his or her ordinary working hours in the formation or lawful activities of any such union or organization;
(b) by reason of such employee's sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion or marital status;
(c) by reason of any act performed or omission committed by such employee which is by or under any provision of this Act or any term and condition of a contract of employment or collective agreement, authorized or permitted, or the exercise of any right conferred upon such employee by or under any such provision or term and condition.
46. (1) If, upon a complaint lodged in accordance with the provisions of Part IV by an employee who has been dismissed from his or her employment or against whom any disciplinary action has been taken, as the case may be, a district labour court is satisfied that such employee has been so dismissed unfairly or that such disciplinary action has been so taken unfairly, the district labour court may -
(a) in the case of an employee who has been so dismissed, issue an order in terms of which such employer is ordered-
(i) to reinstate such employee in the position in which he or she would have been had he or she not been so dismissed;
(ii) to re-employ such employee in work comparable to that to which he or she was engaged immediately before his or her dismissal from such date and on such
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conditions of employment as may be specified in such order;
(iii) to pay, whether or not such employee is re- instated or re-employed, to such employee an amount equal to any losses suffered by such employee in consequence of such dismissal or an amount which would have been paid to him or her had he or she not been so dismissed;
(b) in the case of an employee against whom disciplinary action has been so taken, issue an order in terms of which -
(i) such disciplinary action is set aside;
(ii) any disciplinary penalty, if any, imposed upon such employee is replaced with any other penalty which the court may deem just and equitable;
(iii) the matter is referred back to the employer to reconsider any disciplinary action or disciplinary penalty to be taken or imposed upon such employee in accordance with any guideline, if any, laid down by the court and specified in such order;
(c) make such other order as the circumstances may reqUIre.
(2) An order referred to in subparagraph (i) or (ii) of paragraph (a) of subsection (1) may be made subject to such conditions as the district labour court may deem just and equitable in the circumstances and may include a condition providing for the imposition of an appropriate disciplinary penalty.
(3) When in any proceedings in terms of this section it is proved that an employee was dismissed from his or her employment or that any disciplinary action has been taken against such employee, it shall be presumed that, unless the contrary is proved by the employer concerned, such employee has been dismissed unfairly or that such disciplinary action has been taken unfairly against such employee.
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(4) In considering-
(a) whether an employee has been dismissed unfairly or whether any disciplinary action has been taken unfairly against such employee, the district labour court shall have regard -
(i) to the procedure in accordance with which the employer has reached his or her decision to dismiss the employee concerned or to take such disciplinary action against such employee;
/
(ii) to the manner in which such procedure has been followed in comparable circumstances in respect of other employees before and after such employee has been dismissed or such disciplinary action has been taken against such employee;
(iii) to the conduct and capability of the employee concerned during the period of his or her employment;
(iv) to the extent to which the employer concerned has complied with the relevant provisions of this Act and any terms and conditions contained in the contract of employment or a collective agreement;
(b) the nature of an order to be made in the event of the district labour court finding that the employee concerned has been dismissed unfairly or that disciplinary action has been taken unfairly against such employee, the district labour court shall have regard -
(i) to the order prayed for or the relief sought by
the employee;
(ii) "to the circumstances in which the employee concerned has been dismissed or such disciplinary action has been taken against such employee, including the extent to which such employee has contributed to or caused his or her dismissal or disciplinary action;
(iii) to the practical enforceability of any such order.
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Termination of contracts of employment by notice.
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47. (1) Subject to the provisions of this section, an employer or employee who intends terminating a contract of employment on a date, whether before or after a date on which it would ordinarily have expired by virtue of any provision contained in such contract of employment, shall-
(a) during the first uninterrupted period of four weeks of employment, give the other party at least one working day's notice of termination of such contract, whether or not such employee is remunerated on a weekly or monthly basis;
(b) during any uninterrupted period after the expiration of the first four weeks of employment and before the expiration of 12 months, give the other party at least one week's notice of termination of such contract, whether or not such employee is remunerated on a daily or monthly basis;
(c) during any uninterrupted period of 12 months or longer, give the other party at least one month's notice of termination of such contract, whether or not such employee is remunerated on a daily or weekly basis.
(2) Subject to the provisions of subsection (3), a notice in terms of subsection (1) shall, except when given by an illiterate employee, be given in writing, and shall -
(a) contain the date on which such notice is given;
(b) in the case of a notice referred to in subsection (1)(a), be given on any working day;
(c) in the case of a notice referred to in subsection (l)(b), be given on or before the usual payday of the employee concerned and shall run from the day after such payday;
(d) in the case of a notice referred to in subsection (l)(c), be given on or before the first or the fifteenth day of a month and shall run from such first or fifteenth day, as the case may be.
(3) A period of notice given in terms of subsection (1) shall not run concurrently with, and shall not be given during, an employee's period of absence on leave granted in terms of section 39, 40 or 41.
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(4) Notwithstanding the provisions of subsection (1)-
(a) an employer may terminate a contract of employment without giving notice to an employee provided he or she pays to the employee an amount which is not less than the appropriate remuneration which he or she would have been required to pay to the employee had he or she terminated the contract of employment with the notice referred to in subsection (1);
(b) an employee may terminate a contract of employment without giving notice to the employer, provided he or she pays to the employer an amount which is not less than the appropriate remuneration which the employer would otherwise have been required to pay to him or her had he or she terminated the contract of employment with the notice referred to in subsection (1).
(5) If notice of termination of a contract of employment is given in terms of subsection (1), the employer shall pay to the employee as his or her remuneration in respect of the period of notice an amount which is not less than an amount equal to the amount he or she would otherwise have been paid in respect of the period of such notice had the contract of employment not been terminated.
(6) The provisions of this section shall not be construed as preventing -
(a) any of the parties to a contract of employment from providing in such contract for a period of notice of equal duration for both parties which is longer than the period referred to in subsection (1);
(b) any employer from waiving any right conferred
upon him or her by the provisions of subsection (1) or (4);
(c) any of the parties from terminating the contract of employment without the notice referred to in subsection (1) for any cause recognized by law as sufficient.
(7) For purposes of the provisions of this section, the employment of an employee shall not be regarded to have been interrupted during any period -
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(a) during which an employee is absent from work on any leave of absence granted for a reason as provided in this Act or granted by such employee's employer for any other reason;
(b) during which an employee is absent from work on account of his or her suspension, whether with or without remuneration, pending any disciplinary action taken or to be taken against such employee in terms of the contract of employment entered into by such employee or of any collective agreement on account of such employee's alleged misconduct;
(c) in the case of an employee whose contract of employment has been terminated and who has been re-instated in accordance with the provisions of this Act or the terms and conditions of any collective agreement, as from the date on which such contract of employment has been terminated until the date immediately before he or she has been so re-instated;
(d) during which action has been taken by way of a strike or lock-out in accordance with the provisions of this Act, whether or not such employee has participated in such strike or was involved in such lock-out.
(8) For purposes of the calculation of any uninterrupted period of employment referred to in this section, any period referred to in subsection (7) shall be included in any such uninterrupted period of employment to be determined for purposes of this section, except any period during which action has been taken by way of a strike or lock-out as contemplated in paragraph (d) of the said subsection (7) in relation to an employee so referred to who has participated in the strike in question or has been involved in the lock-out in question.
48. (1) A contract of employment shall terminate on a date at least one month -
(a) in the case of a contract of employment between an employee and an employer who is a natural person, as from the date of the death or sequestration of such natural person;
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(b) in the case of a contract of employment entered into between an employee and an employer which is a company or other juristic person, as from the date on which such company or juristic person is wound up;
(c) in the case of a contract of employment entered into between an employee and an employer which is a partnership, as from the date on which such partnership is dissolved,
as if such employee were employed by the executor of the estate of such deceased person on behalf of such estate, by the administrator, trustee or liquidator of such company or juristic person in his or her capacity as administrator, trustee or liquidator of such company or juristic person or by each partner of such partnership, as the case may be, or such longer period as may be provided for in such contract of employment or a collective agreement, or, in the case of a company or juristic person, such longer period, subject to the provisions of section 50, as such company or juristic person continues, notwithstanding its winding up, to carry on business.
(2) Notwithstanding anything to the contrary contained in any other law, an employee referred to in subsection (1) shall, in respect of the remuneration and other moneys payable to such employee by virtue of the provisions of that subsection, and who has proved a claim against the deceased or insolvent estate of the employer concerned, be deemed to be a preferent creditor of such estate.
(3) The provisions of this section shall not be construed as prohibiting the executor, administrator, trustee, liquidator or partner referred to in subsection (1) from terminating any such contract on any other date, whether or not during the month referred to in the said subsection (1), in accordance with any other provision of this Act or any provision contained in a collective agreement.
49. (1) Where a contract of employment is terminated, whether with or without notice, at any place other than the place where any employee has been recruited, the employer shall -
(a) if such contract has been terminated by such employer for any reason; or
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(b) if such contract has been terminated by the employee by reason thereof that the employer has contravened or failed to comply with any provision of this Act or any term or condition of such contract of employment,
provide such employee with such reasonable transportation or an amount equal to the costs of such transportation to enable him or her to return to the place where he or she has so been recruited.
(2) The provisions of subsection (1) shall not apply-
(a) in relation to an employee who, at the time of the termination of the contract of employment in question, has completed in terms of that contract of employment a period of more than 12 months of uninterrupted employment, reckoned from the date, whether before or after the commencement of this Act, on which such contract of employment commenced;
(b) if such termination has taken place on account of -
(i) the employee's refusal to comply with the provisions of this Act, in so far as it relates to the labour relations between him or her and his or her employer, or any term and condition of the contract of employment in question or a collective agreement, or his or her insubordination or misconduct; or
(ii) the employee's own incapability; or
(c) if such employee unreasonably refuses to be re- instated by the employer under such terms and conditions which are not less favourable than the terms and conditions which were applicable to such employee immediately before such termination.
(3) The provisions of section 47(7) and (8) shall apply mutatis mutandis in relation to the determination of a period of uninterrupted employment referred to in subsection (2)(a).
50. (1) Any employer who intends to terminate any or all of the contracts of employment of his or her employees on account of the re-organization or transfer of the business
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carried on by such employer or to discontinue or reduce such business for economic or technological reasons, such employer shall -
(a) inform-
(i) the registered trade union recognized by him
or her as an exclusive bargaining agent in respect of such employees; or
(ii) if no such trade union exists, the workplace union representative elected in terms of section 65,
on a date not later than four weeks before such contracts of employment are so terminated or such other period as may in the circumstances be practicable, of his or her intentions, the reasons therefor, the number and categories of employees to be affected by such intended termination and the date on which or the period over which such terminations are to be carried out;
(b) afford such trade union, workplace union representative or the employees concerned an opportunity to negotiate on behalf of such employees the conditions on which, and the circumstances under which such terminations ought to take place with a view to minimizing or averting any adverse effects on such employees;
(c) notify the Commissioner in writing of his or her intentions and the reasons therefor, the number and categories of employees to be affected by such intended termination and the date on which or the period over which such terminations are to be carried out.
(2) Any employer who contravenes or fails to comply with the provisions of subsection (I) shall be guilty of an offence and on conviction be liable to a fine not exceeding R40QO or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.
51. (1) On the termination of a contract of employment, an employer shall furnish such employee with a certificate of employment containing no particulars other than -
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(a) the name and address of the employer concerned;
(b) the nature of the industry in which such employer is involved;
(c) the name and address of the employee concerned;
(d) the capacity in which such employee was employed by the employer concerned;
(e) the date of the commencement and the date of termination of the contract of employment in question;
(f) the remuneration to which such employee was entitled immediately before the termination of the contract of employment in question;
(g) if the employee concerned so requests, the reason for the termination of such contract of employment.
(2) The provisions of subsection (1) shall not be construed as prohibiting an employer from furnishing an employee whose contract has been terminated with a testimonial or other certificate of character.
52. (1) Subject to the provisions of subsection (2), an employer shall, upon -
(a) the termination of a contract of employment on or after the date of commencement of this Act or on such other date (which may be a date not longer than six months before the date on which this Act is published in the Gazette) as may be determined by the Minister by notice in the Gazette, by an employer in respect of an employee who has at the time of such termination completed in terms of that contract of employment a period of at least 12 months of uninterrupted employment, reckoned from the date, whether before or after the commencement of this Act, on which such contract of employment commenced;
(b) the termination of a contract of employment by an employee, on or after the date or other date referred to in paragraph (a) and at any time after he or she has attained the age of 65 years, who has at
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the time of such termination completed in terms of that contract of employment a period of at least 12 months of uninterrupted employment, reckoned from the date, whether before or after the commencement of this Act, on which such contract of employment commenced and who has attained the age of 65 years;
(c) the death of an employee on or after the date of commencement of this Act who has at the time of his or her death completed in terms of that contract of employment a period of at least 12 months of uninterrupted employment, reckoned as provided in paragraph (a),
pay to such an employee or, in the case of an employee referred to in paragraph (c), to such employee's surviving spouse or, if there is no such spouse, such employee's children or, if there are no such children, such employee's estate, in addition to any amount paid to such employee by virtue of the provisions of section 47(4)(a), by way of allowance, an amount equal to the deficiency between -
(i) an amount of one week's remuneration for each completed period of 12 months of uninterrupted employment in the employment of that employer calculated at the rate at which such remuneration were paid to such employee immediately before such termination; and
(ii) an amount, if any, -
(aa) in the
