The question which doesn’t ordinarily arise but is covered by the Basic Conditions of Employment Act pertains to the employment of children and the prohibition thereof.

For the most part, the Act is easy to interpret, and will not be set out for the purposes of this article, however, should the reader wish to enrich themselves, the applicable sections pertaining to the prohibition of the employment of children can be found in the Basic Conditions of Employment Act, sections 43 to 48.

In short, the Act sets out that no person may employ a child who is under 15 years of age or who is under the minimum school-leaving age in terms of any law if this is 15 or older. Further to this, no person may employ a child in employment that is inappropriate for a person of that age or that places the child’s well-being, education, physical or mental health, or spiritual, moral or social development at risk.

The question then arises, “May I employ a child who is over 15 years of age?” The answer, however, is not so straightforward. One needs to be cognisant of Section 31(1) of the South African Schools Act, 1996, which requires every parent to cause every learner for whom he or she is responsible to attend a school until the last school day of the year in which the learner reaches the age of 15 or the ninth grade, whichever is the first.

What this means, in essence, is that a child might well be above the age of 15 to satisfy the first of the requirements of the BCEA (Sec 43 (1)(a)). However, if a child reaches this age in the middle of the school year, for example, he or she will not meet the South African Schools Act requirements and will thus be in contravention of Sec 43 (1)(b) of the BCEA.

Another interesting consideration to be dealt with pertains to Section 47, which deals with evidence of age.

What is important to remember here is that it is for the party who alleges that the work by that person complied with the provisions of this Chapter to prove that it was reasonable for that party to believe, after investigation, that the person was not below the permitted age in terms of section 43 or 44.

Without the necessary identification documentation, an employer needs to proceed with caution when considering the employment of a younger individual. A thorough investigation should be carried out, and parties should satisfy themselves that the necessary requirements are met and that no legislation has been contravened.

Article by: Arlene Jacobs
Dispute Resolution Official – Bloemfontein