Thought Leadership
Basic Conditions of Employment:
Working Hours:
Application
Sections 6 – 18 of the BCEA[1] regulates working hours of employees. With the exception of Section 7 of the Act, these rules do not apply to senior managerial employees; employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work and employees who work less than 24 hours a month for an employer[2].
Normal working hours do not apply to emergency work (work which is to be done without delay). Emergency work is not defined in the Act, but has been held to include unforeseen emergencies which could halt the operations of an employer, and where other employees cannot step in and perform the work[3].
*Working hours have to be regulated by Employers considering the following:
Occupational Health and Safety Legislation
The health and safety of employees
The Code of Good practice on the regulation if working time
The Family Responsibility of employees.
*This section applied to senior employees as well.
Normal Working Hours:
Parties can generally agree on working hours, however, no employee should be allowed to work more than-
(a) 45 hours in any week; and
(b) nine hours in any day if the employee works for five days or fewer in a week; or
(c) eight hours in any day if the employee works on more than five days in a week.
These hours may be extended to a maximum of 50 hours per week where an employee’s normal duties include serving members of the public.
Where a shift is longer than 5 hours, an employee must be allowed a lunch break of one hour, or, by agreement 30 minutes. The lunch break is unpaid, unless it is longer than 75 minutes or an employee is required to work during his/her lunch break. Where a shift is no longer than 6 hours, the parties may agree that there will be no lunch break for that shift. This section is absolute and may not be varied by agreement[4]. An instruction to an employee to work during his/her lunch break would be unlawful and refusal to comply may not be disciplined[5].
Rest periods:
A rest period of at least 12 hours is required between shifts, and at least once a week an employee is entitled to a rest period of no less than 36 hours (which must fall on a Sunday, unless the parties have agreed differently). There are some exceptions to these rest periods[6]:
Section 15 Daily and weekly rest period
(1) An employer must allow an employee-
(a) a daily rest period of at least twelve consecutive hours between ending and recommencing work; and
(b) a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday.
(2) A daily rest period in terms of subsection (1) (a) may, by written agreement, be reduced to 10 hours for an employee-
(a) who lives on the premises at which the workplace is situated; and
(b) whose meal interval lasts for at least three hours.
(3) Despite subsection (1) (b), an agreement in writing may provide for-
(a) a rest period of at least 60 consecutive hours every two weeks; or
(b) an employee’s weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently.
Employees who work on a Sunday have to receive additional payment for said work at double their normal rate if they don’t usually work on a Sunday or at 1.5 times their usual rate if Sunday is a normal working day for them. [7]
Employees who work night shifts have to receive a night shift allowance (a shift allowance or time off in lieu thereof) and have to be informed of the health and safety aspect of night work. This is only permissible where there is transport available between the employee’s home and workplace at the beginning and end of the night shift. Where an employee’s health suffers as a result of the night work, the Employer has to transfer the employee to suitable day work where it is practicable for the Employer to do so.[8]
Overtime:
No employer may require or permit an employee to work more than 45 hours per week. Any time in excess of this is regarded as overtime and an employer may enter into an agreement with an employee to work overtime. An employer may not allow an employee to work more than 45 hours per week. All hours in excess of this will be overtime and this is limited to 10 hours per week.
The limit placed on overtime is intended to protect employees. Where employees do work overtime in excess of 10 hours per week, or in terms of a collective agreement 15 hours per week, such an employee is still entitled to payment for such overtime, even though the overtime was worked in contravention of the BCEA[9]
Employees have to be compensated for overtime work, either by paying them one and a half times their normal rate for those additional hours, or giving them time off in lieu of payment. In this instance an employer may either pay the employee his/her normal rate for the additional hours and allow 30 minutes off, or if no payment is made for the overtime hours, allowing 90 minutes off for each hour worked.
Once there is an agreement between the parties that the employee shall work overtime, the refusal of an employee to work overtime may be met with disciplinary action. Only employees who earn less that the overtime threshold[10] may claim payment for additional hours worked.
Where an employee is required to work in excess of the allowed overtime hours, he/she may resign and this will be regarded as a constructive dismissal[11]
Work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work (Section 6(2) of the BCEA) is not regarded as overtime.
[1] Basic Conditions of Employment Act 75/1997
[3] Khan & others v Rainbow Chicken Farms (Pty) Ltd (1985) 6 ILJ 60 (IC)
[4] Simba (Pty) Ltd v Food & Allied Workers Union & others (1997) 18 ILJ 558 (LC)
[5] Mlaba v D Masonite (Africa) Ltd & others [1998] 3 BLLR 291 (LC)
[9] National Union of Metalworkers of SA & others v MacSteel (Pty) Ltd 1992 (3) SA 809 (A); (1992) 13 ILJ 826 (A) A
Food & Allied Workers Union v Ceres Fruit Juices (Pty) Ltd (1996) 17 ILJ 1063 (C)
[10] On 1 July 2014 this was increased to R205 433.30 per annum
[11] Lepadima and Progress Guttering (Pty) Ltd (2008) 29 ILJ 199 (CCMA)