Ministerial Determinations

What is a Ministerial Determination?

The Minister of Labour may establish basic conditions of employment for employees in a certain sector or area by means of a Ministerial Determination.

The Minister may make a determination to replace or exclude
almost any basic condition of employment provided for in the Basic
Conditions of Employment Act, in respect of a category of employees or a category of employers (on his own accord) or any
employer or employee on application by the employer or a registered employers’ organisation (or employer and registered
employers’ organisation acting together).

Establishing Ministerial Determinations

• An employer or employers’ organisation or the two acting together, must apply to the Department of Labour for the Minister to establish a Ministerial Determination. This is done by completing a BCEA form 6.
• The Minister will refer the application to the Employment Conditions Commission (ECC) for its recommendations.
• The Minister may ask the ECC to advise on the application and to prepare guidelines for the application of a Ministerial Determination.
• When a Ministerial Determination is applied for, the consent of all trade unions representing employees in the workplaces is required.

However, where a copy of the application has been served on the trade unions stating that an opportunity for representations exist and where the trade union does not represent the majority of the employees to be affected, the issuing of the Ministerial Determination may go ahead without such consent.

Contents of Ministerial Determinations

The Ministerial Determination may be issued on any conditions and for a period determined by the Minister.

A Ministerial Determination however may not amend certain issues.
They are as follows:
• Regulation of working time;
• Ordinary hours of work;
• Determination of hours of work;
• Night work on a regular basis after 23:00 and before 06:00;
• Employment of a child whose less than 15 years of age; and
• Demanding or imposing forced labour.
The amendments to the Basic Conditions of Employment further restrict the Minister’s power to vary the ordinary hours of work in a
sector. Therefore, a ministerial determination may only vary if the
hours of work are more favourable than an employee’s ordinary
hours of work and:
• Is agreed to in a collective agreement; or
• Is necessary due to operational reasons in this sector; or
• Applies to the private security or agricultural sector.

Amendments of Ministerial Determinations

On application of either of the parties to a Ministerial Determination,
the Minister may amend or withdraw a Ministerial Determination.

Ministerial Determinations for Small Businesses

This determination applies to employers who conduct businesses
employing less than ten employees.

To the extent provided for in this determination, this determination
varies the application of the Basic Conditions of Employment, 75 of
1997, to such employers and their employees.

This determination must also be read in conjunction with the Basic
Conditions of Employment. Also unless otherwise indicated, any word used in this determination has the same meaning as in the
BCEA.

A bargaining council agreement or sectoral determination takes
precedence over time determination, unless the agreement or
determination provides otherwise.

This determination does not apply to:
• The employment of domestic workers;
• The public service
• Any employer who conducts more than one business; and
• Any business formed by the division or dissolution of an existing
business.

Relevant legislation:
Basic Conditions of Employment Act of 1997 as amended. Chapter 7, s50.

FOR MORE INFORMATION CONTACT THE CCMA OPERATIONS & INFORMATION DEPARTMENT ON (011) 377-6650 OR YOUR NEAREST CCMA OFFICE