This article was written by Jonathan Arumugam , a Candidate Attorney at Norton Rose Fulbright South Africa
Managing a workplace and employees is a lot different nowadays than it used to be two decades ago. Today, many employers struggle to recruit and retain employees by offering a strict nine to five work day. Your typical staff complement is multigenerational and has access to technology allowing them to work outside the office. Couple this with the bigger focus on work/life balance and many employees are attracted to non-traditional employment arrangements such as working part-time or flexi time.
Historically, part-time employees and employees with other more flexible working arrangements were not specifically mentioned in South African employment legislation. When the Labour Relations Act, 1995 (LRA) was amended on 1 January 2015, the legislature included a section protecting part-time employment of employees earning below the statutory monetary threshold. Currently, the monetary threshold is R205 433.30.
The LRA defines a part-time employee as an employee who works less than a full-time employee and is paid wholly or partly by reference to the time the employee works.
The Code of Good Practice: Who is an Employee recognises that the nature of part-time work does not affect the individual’s status as an employee. Accordingly, the LRA applies to part-time employees. Similarly, the minimum conditions of employment set out in the Basic Conditions of Employment Act, 1997 (BCEA) will also apply to part-time employees except when they work less than 24 hours a month for an employer.
The amendments to the LRA aim to place part-time employees on par with their full-time colleagues who perform the same or similar work as they do. In circumstances where the part-time employee ordinarily works more than 24 hours a month, part-time employees have the following rights:
An employer must treat a part-time employee on the whole not less favourably than an comparable full-time employee doing the same or similar work;
- An employer must provide a part-time employee with access to training and skills development that are on the whole not less favourable than the access and skills development applicable to a comparable full-time employee;
- An employer must provide a part-time employee with the same access to opportunities to apply for vacancies as it provides to full-time employees.
An employee who has not yet completed three months of continuous employment with an employer is not entitled to that protection.
An employer may only provide a part-time employee with terms of employment that are on the whole no less favourable than those of a comparable full-time employee if there is a justifiable reason for the different treatment. Justifiable reasons for treating a part-time employee differently from a full-time employee include the seniority, experience or length of service of the employee, merit, the quality or quantity of work performed or any other relevant criteria that are not unfairly discriminatory in nature.
A part-time employee may approach the CCMA or a bargaining council with jurisdiction to resolve disputes around their employment similar to a permanent employee or an employee with a limited duration contract.
Employers accordingly need to ensure that when employers assess whether their employment contracts comply with the principle of “equal pay for equal work”, they must also assess the contracts of those employees who work part-time.