DRAFTING COMPLIANT EMPLOYMENT CONTRACTS

Written by Hulisani Ravhudzulo

The Hairdressing, Cosmetology, Beauty and Skincare Industry in South Africa is both vibrant and highly regulated. Establishments operate in an environment that demands flexibility, extended trading hours, and close interaction with clients. Employees may include hairstylists, beauty and nail technicians, massage therapists, assistants, receptionists and commission-based earners, all of whom contribute directly to the success and reputation of the establishment.

Despite the informal and creative nature of the industry, employment relationships are governed by strict labour legislation. Many establishment owners underestimate the importance of a properly drafted employment contract, often relying on verbal agreements or outdated templates. This exposes establishments to unnecessary risk, including CCMA and/or Bargaining Council disputes, labour inspections, back-pay orders, fines and reputational damage.

A compliant employment contract is not designed to burden employers but to create clarity, fairness and certainty for both parties. This article explains the essential legal requirements when drafting employment contracts in the Hairdressing, Cosmetology, Beauty and Skincare Industry, with specific reference to the Basic Conditions of Employment Act (BCEA), Labour Relations Act (LRA) and applicable industry agreements.

1. Understanding the employment relationship

Before drafting any contract, it is critical to correctly identify the nature of the working relationship. Many disputes arise not because employers intend to act unlawfully, but because the relationship has been incorrectly classified from the start.

Employee vs independent contractor

A common practice in the industry is to label workers as “freelancers”, “chair renters” or “independent contractors” to avoid statutory obligations such as leave, overtime and minimum wages. In South African labour law, however, the reality of the relationship takes precedence over the label used in the contract.

An individual is likely to be regarded as an employee if:

• The establishment controls working hours, pricing, services or conduct.

• The individual works under supervision or instruction.

• The individual is economically dependent on the establishment.

• Tools, equipment, stock or products are supplied by the establishment.

• The individual forms part of the establishment’s daily operations.

Where these elements are present, the BCEA, LRA, and Main Collective Agreement of the HCSBC may apply, regardless of how the contract is worded. Misclassification remains one of the most common compliance failures in the Hairdressing, Cosmetology, Beauty and Skincare Industry.

2. Mandatory contractual inclusions: BCEA essentials

The BCEA requires an employer to provide an employee with written particulars of employment when employment commences. A written employment contract is strongly recommended because it records the agreed terms clearly, reduces misunderstandings, and provides evidence of what the parties agreed.

At a minimum, the written particulars should include:

• Full employer and employee details.

• Job title and a clear description of duties.

• Place or places of work.

• Date employment commenced.

• Ordinary working hours and working days.

• Remuneration structure, including hourly, weekly, commission or hybrid arrangements.

• Rate of pay and the method of calculating wages.

• Pay intervals and method of payment.

• Overtime arrangements and the applicable overtime rate.

• Leave entitlements.

• Notice periods or, for fixed-term contracts, the date of termination.

• Any deductions authorised by law or agreed in writing.

The contract must be accessible and explained to the employee, particularly where English is not the employee’s first language. A signed and understood contract reduces misunderstandings and protects both employer and employee.

3. Industry-specific considerations: Hairdressing, Cosmetology, Beauty and Skincare Industry

Working hours and overtime

Establishments often operate extended hours, weekends and public holidays. Employment contracts must:

• Define ordinary working hours in line with the Main Collective Agreement, which provides for a maximum of 45 ordinary hours per week, subject to the applicable provisions of the Agreement.

• Confirm that overtime is by agreement.

• Specify the applicable overtime rate.

• Regulate Sunday and public holiday work in accordance with the BCEA and the applicable Main Collective Agreement.

Failure to correctly regulate and pay overtime is one of the most common reasons for CCMA and/or Bargaining Council disputes in the industry.

Commission-based earnings

Commission-based remuneration is common and lawful, but only if structured correctly.

Contracts must:

• Clearly explain how commission is calculated.

• Confirm whether commission is in addition to or inclusive of basic pay.

• Ensure that the employee earns at least the applicable minimum wage.

Commission cannot be used to bypass minimum-wage obligations. Where commission earnings fall below the applicable minimum, the employer must top up the employee’s pay.

Leave provisions

Contracts must reflect the applicable statutory and Main Collective Agreement leave entitlements, including:

• Annual leave: Three weeks on full pay per leave cycle after 12 months’ service. For a five-day working week, this is 15 paid working days; for a six-day working week, it is 18 paid working days. Both equate to 21 consecutive calendar days.

• Sick leave: In addition to the BCEA sick-leave framework, employees covered by the Main Collective Agreement may have access to Sick Pay Fund benefits of up to 66 days within a three-year cycle. This consists of 33 days for short-term illness lasting one to six days and 33 days for illness lasting more than six days, subject to the applicable MCA and Sick Pay Fund rules.

• Family responsibility leave.

• Parental leave.

• Public holidays.

Clauses that attempt to forfeit leave, substitute unpaid leave or enforce “use it or lose it” arrangements must be carefully checked against the BCEA and the applicable Main Collective Agreement.

Uniforms, tools and deductions

Where uniforms, tools or products are required:

• The contract must clearly state who bears the cost.

• Any deductions must be lawful, reasonable and agreed in writing.

• Employers may not deduct for breakages, losses or shortages without a fair and lawful process.

Unlawful deductions frequently result in successful claims against employers.

4. Probation, performance and discipline: LRA compliance

Probation clauses

Probation is permitted but must be fair and reasonable:

• The probation period must be reasonable in the circumstances.

• Clear performance standards must be communicated.

• Training, guidance and support must be provided.

• Performance must be assessed before termination.

• Automatic dismissal at the end of probation is unlawful.

Discipline and dismissal

Employment contracts should align with:

• The Code of Good Practice on Dismissal.

• Fair disciplinary procedures.

• Progressive discipline where appropriate.

• A clear code of conduct aligned with industry standards.

Dismissals without procedural or substantive fairness expose employers to reinstatement or compensation awards.

5. Confidentiality, conduct and client relationships

Due to the client-facing nature of the industry, contracts should include:

• Confidentiality clauses covering client information and pricing.

• Reasonable restraint-of-trade clauses, where appropriate and legally justifiable.

• Standards of hygiene, professionalism and conduct.

• Social media and brand-representation guidelines.

These clauses must be reasonable and enforceable, not punitive.

6. Occupational health and safety obligations

Employment contracts should reference:

• Compliance with the Occupational Health and Safety Act 85 of 1993.

• Safe handling of chemicals, equipment and tools.

• Reporting of injuries, hazards and incidents.

• Employer-provided training and personal protective equipment.

Failure to address health and safety places both employees and the establishment at risk.

7. Common compliance risks in the industry

Establishment owners should be cautious of:

• Verbal agreements only.

• Generic or outdated contracts.

• Misclassification of employees.

• Unlawful deductions.

• Ignoring sector minimum wages.

• Inconsistent treatment of staff.

These risks frequently result in CCMA or Bargaining Council referrals, inspections and penalties.

In conclusion, a compliant employment contract is far more than a formality. It is a legal safeguard that protects both employer and employee, promotes fairness and supports sustainable establishment practices. In the Hairdressing, Cosmetology, Beauty and Skincare Industry, where flexibility and creativity are essential, contracts must be carefully drafted, industry-specific and legally compliant.

Establishment owners are encouraged to regularly review employment contracts against current labour legislation and the applicable Main Collective Agreement and to seek professional labour advice where uncertainty exists. Employers are further encouraged to engage with their EOHCB representatives in their respective areas to ensure contracts are correctly aligned, compliant and fair, thereby avoiding unfair labour practices and promoting healthy employment relationships.