Law is clear on holiday work and overtime

SA’s Basic Conditions of Employment Act sets the fundamental conditions of service for all employment situations.

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Johannesburg - On Election Day (August 3), some people had the day off so they could go and vote, but others had to carry out their civil duty in between their working hours.

Read also: Understanding the legalities of overtime

Does that mean there’s something illicit going on?

Not at all, says Nicol Myburgh, of CRS Technologies, a human resources services provider.

He explains that the Basic Conditions of Employment Act (BCEA) sets the fundamental conditions of service for all employment situations, ranging from the domestic to the industrial.

When it comes to hours worked a week in business, particularly overtime, the BCEA is precise - the maximum normal working time allowed is 45 hours a week, overtime is voluntary and may be worked only in agreement between employer and employee.

Myburgh points out that there are terms and conditions that have to be taken into consideration, including the fact that the above regulation excludes lunch breaks.

“Lunch breaks are, by law, not defined as working time and will therefore be unpaid,” he explains.

“The normal working hours are determined by mutual agreement between employee and employer. The act only provides the maximum limit of 45 hours, and does not mean the employee must work 45 hours a week normal time. The statutory limitation of 45 hours a week means that the employee may not work more than 45 hours a week, normal time.”

Labour legislation is also clear on overtime, defined as time worked in excess of the normal working hours.

The maximum permissible overtime is three hours a day or 10 hours a week. The employee must be paid at one and a half times his/her normal wage rate except for work on Sundays and public holidays, which must be paid at twice the normal wage rate.

The employees aren’t necessarily paid for overtime. They can, by mutual agreement, be granted time off in lieu of payment, Myburgh adds.

However, this segment of the law is applicable only to employees earning below the earnings threshold, which is currently R205 433.30.

Overtime payment - or time off in lieu thereof - for employees earning above this threshold is not compulsory, but rather a mutual agreement between employer and employee.

Employees earning above the threshold, who are not compensated by employers, have the right to refuse to participate in overtime work.

While it is true that each industry has its own variations and is governed by specific dynamics, legislation regulating overtime is applicable irrespective.

“While the BCEA sets the fundamental minimum rules, there are legislated variations based on sectoral or industry operational requirements. A sectoral determination, a bargaining council main agreement or a union agreement may bring about variations on the conditions mentioned since these documents are viewed as extensions of the act. These are known as delegated legislation,” says Myburgh.

He cites the security industry as an example: Sectoral Determination 6 Private Security Sector regulates, among other conditions, the maximum normal working hours to 48 hours a week for a security officer.

The Metal and Engineering Industries Bargaining Council on the other hand, regulates that the ordinary hours in its industry shall not exceed 40 in a week for employees on day shift and/or night shift or employees working on the two and/or three-shift system.

Then there’s the retail industry that seems to always be open - note that the retail industry’s overtime provisions allow for extended shopping hours and working shifts.

THE STAR