Minimum Conditions of Employment – A Comparison between Germany, South Africa and Kenya

Published on June 5, 2018

Companies looking to take advantage of business opportunities in foreign countries are increasingly faced with the challenge of deciding which markets to exploit, as well as coming to grips with the costs of compliance with the foreign regulations. Hereunder, the local labour regulations of Germany, South Africa and Kenya are compared with the purpose of highlighting the employer obligations in respect of minimum conditions of employment.

Germany

In Germany, the legal framework for employment include the Bürgerliches Gesetzbuch (Civil Law Act) and many other acts concerning specific fields of the employment relationship such as, termination, maternity protection and fixed term contracts. As a result, the employment law in Germany is regulated in detail by these acts. In general, the German employment law is employee friendly, which is especially shown in the comprehensive termination protection rights of employees. Furthermore, in certain fields, such as annual leave, it is common practice in Germany to grant more favourable terms for the employee in the employment contract than the statutory minimum prescriptions.

South Africa

In a country with a very high unemployment rate and no minimum or ‘living’ wage, the cost of labour is not immense. However, whilst the cost of employing workers in South Africa is not vastly different to that of other countries, the real risk of costs being incurred is in respect of termination of employment. The law regarding termination is set out within the Labour Relations Act which was amended with effect from 1 January 2015. In respect of minimum conditions of employment, these are set out in the Basic Conditions of Employment Act, which was also recently amended. The aforementioned Act provides that the minimum conditions found within the Act constitute terms of any contract of employment, whether expressly stated in such a contract or not. The minimum conditions in the Act apply except if another law provides a term that is more favourable for the employee or if a term of the contract is more favourable for the employee.

Kenya

Kenya’s skilled and professional labour market has experienced tremendous growth in the last two decades or so, evidenced in part by the local and international firms sourcing their skilled and professional staff, including staff for senior managerial positions, largely locally. In addition, the overhaul of the laws governing employment in 2007 was as a result of a need to ensure the legal framework governing the employment relationship was reflective of and in-keeping with the prevailing labour issues and conditions.

In general, the labour laws in Kenya-contained in the Employment Act, the Work Injury Benefits Act, Labour Relations Act, Labour Institutions Act and the Occupational Safety and Health Act- are employee friendly, as is the dedicated labour court, the Employment and Labour Relations Court.

Minimum conditions of employment between Germany, South Africa and Kenya

Maximum hours of work in a week

Germany: 40 hours (5-day week)
South Africa: 45 hours
Kenya: 52 hours (6-day week)

Maximum hours of work a day in a 5-day week

Germany: 8 hours (10 hours possible, if over a period of 6 months or 24 weeks, the average hours of work in a day do not exceed 8 hours)
South Africa: 9 hours
Kenya: 8.66 hours (daily average considering 52 hours in a 6-day week)

Maximum hours of overtime work in a week

Germany: No statutory legal maximum
South Africa: 10 hours
Kenya: 40 hours for night staff, 12 hours for day adult staff over a period of two consecutive weeks

Minimum annual leave in a year

Germany: 20 days (in the event of a 5 day week)
South Africa: 15 days
Kenya: 21 working days of leave with full pay after every 12 months of service

Sick leave entitlement in a year

Germany: 6 weeks per type of sickness in 12 months (exemptions apply)
South Africa: 30 days in 36 months, based on a 5-day working week
Kenya: Not less than 7 days with full pay and 7 days with half pay in each period of 12 consecutive months of service

Maternity leave entitlement (paid / unpaid)

Germany: 14 weeks paid | Parental leave: up to 14 months if mother and father take parental leave (paid 2/3 of income by the state)
South Africa: 4 months unpaid
Kenya: 3 months maternity leave with full pay. A male employee is entitled to 2 weeks paternity leave with full pay

Family responsibility leave per year (paid / unpaid)

Germany: No statutory legal minimum for paid leave.
South Africa: 3 days
Kenya: Termed as ‘compassionate leave’ and is taken from annual leave entitlement (paid), with additional 5-20 days unpaid depending on the industry

Written employment contract required

Germany: No. Exception applies in the event of a fixed term employment contract.
South Africa: No. But written particulars of employment must be provided on commencement of employment.
Kenya: Yes provided it is for a period of 3 months or more.

National minimum wage

Germany: Yes, EUR 8.50
South Africa: No. But a minimum wage can be set for a particular sector or by way of a collective agreement.
Kenya: Yes, minimum depends on the sector/industry (eg agricultural industry, building and construction industry) and the locality of employment, e.g KES 10,954.70 (approx. EUR 100) per month excluding house allowance for a general labourer - cleaner, sweeper, gardener, children's ayah, house servant, day watchman-in Nairobi

Minimum severance pay for retrenchment

Germany: 0.5 month’s pay for every completed year of service (applicable for employers with more than 10 employees – exemption applicable - and only if the employee was employed for a minimum of 6 months).
South Africa: 1 week’s pay for every year of completed service
Kenya: Not less than 15 days’ pay for each completed year of service.

Contact

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Anna-Lena Becker, LL.M.

+27 21 4182 350

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