In any employment relationship, formal documentation of agreements and policies plays a critical role in creating a structured and legally compliant organization. Every organization is obligated to implement a comprehensive set of policies and procedures to ensure full compliance with regulatory standards. 

Documenting the terms and conditions of these policies and agreements is essential for defining the rights and responsibilities of both the employer and the employee. Key aspects such as working hours, leave entitlements, and notice periods should be clearly outlined in employment contracts. This clarity avoids misunderstandings and disputes while offering legal protection to both parties. 

Key agreements and policies that are essential for all organizations include: 

• Employment-related policies and agreements (e.g., workplace safety, leave entitlements, employment equity, etc.); 
• Codes of conduct to govern employee behaviour and ethical standards; and 
• Data protection policies to safeguard personal and sensitive information. 

When setting up these agreements and policies, employers must comply with three specific sources of legislation; the Basic Conditions of Employment Act (BCEA), the Labour Relations Act (LRA), and the Protection of Personal Information Act (POPIA). 

The complex interaction between these sources means that clarity is often best achieved through well-documented, structured, and compliant agreements and policies. 

The Labour Relations Act and the BCEA

The employment contract, the Labour Relations Act (LRA), and the Basic Conditions of Employment Act (BCEA) work together to form the foundation of the employment relationship. The employment contract is the primary document that outlines the terms and conditions of employment, such as working hours, leave entitlements, and notice periods. It serves as a reference point for both the employer and the employee.  

The LRA and BCEA, however, provide statutory frameworks that ensure minimum labour standards and protections, influencing how employment contracts must be structured.

The Labour Relations Act

The Labour Relations Act (LRA) primarily regulates collective bargaining, dispute resolution, and unfair labour practices. It ensures that employees have the right to form and join trade unions, and it governs the establishment of collective agreements through bargaining councils.  

For industries where collective bargaining is practised, documenting collective agreements is crucial. These agreements, often facilitated by bargaining councils, can significantly influence employment conditions across the sector. Proper documentation ensures that employers comply with industry-wide standards on wages, working conditions, and benefits. This alignment is necessary for resolving conflicts that may arise between individual employment contracts and collective agreements. 

When a conflict arises between an individual employment contract and a collective agreement established under the LRA, the terms of the collective agreement will generally take precedence unless the contract offers more favourable terms to the employee.

The Basic Conditions of Employment Act

The Basic Conditions of Employment Act (BCEA) sets minimum standards for working conditions, such as working hours, overtime, and leave entitlements. The BCEA applies to most employees and serves as the baseline for any employment contract. Employers are not allowed to contract out of these minimum standards unless permitted by the BCEA itself, and any contractual terms that fall below the minimum standards set by the BCEA are considered void.

POPIA Consent: Privacy Protection for Employees

In addition to documenting traditional employment terms, employers are required to comply with the Protection of Personal Information Act 4 of 2013 (POPIA). This legislation, which came into full effect on 1 July 2021, requires employers to inform employees about the collection, use, and retention of their personal information and to obtain their consent for such use.  

This shift from the limited requirements under section 29 of the BCEA is significant, as POPIA provides stricter controls over personal data, including "special personal information" like medical and criminal records. 

Employers must use a POPIA Consent agreement to request permission from employees to process their personal information. The agreement not only provides details of the information collected but also outlines the employer's responsibilities under POPIA and the employee's rights. Below is a summary of key elements of the POPIA consent agreement: 

Recruitment Information: Personal data, such as qualifications, skills, and criminal records, is collected to assess employment suitability. This data will be retained for the duration of employment and destroyed three years after termination, in line with BCEA requirements. 

Personal Details: Information like an employee's name, address, and emergency contact details are required for maintainingaccurate records and ensuring workplace safety. Health-related information, which is categorized as particular personal information, is necessary for addressing medical needs in the workplace. 

Financial Information: Bank and tax details are collected to comply with tax laws and ensure payment of wages. Payroll services also retain this data for seven years as required under the Companies Act 71 of 2008. 

Sharing Personal Information: Employers must specify third parties with whom employee information may be shared, such as medical aid providers and payroll services.

Conclusion  

Properly documented agreements and policies also protect employers from potential legal liabilities. An employer can be held vicariously liable for wrongful acts committed by employees, and documented policies on acceptable behaviour and ethical standards provide a clear framework for managing breaches.  

Documentation promotes consistency across the organization and accountability for both employers and employees. Whether addressing disputes or ensuring compliance, documented agreements and policies serve as evidence of agreed terms and expectations. Employers must prioritize the careful drafting of all agreements and policies to mitigate risks and protect both parties in the employment relationship. 

Written by Robyn Shepherd, SchoemanLaw