LEGISLATION OF OVERTIME WORKING HOURS COMPENSATION LAW IN SOUTH AFRICA
07 AUGUST 2019
What are the normal working hours in a week?
According to the Basic Conditions of Employment Act (BCEA), the maximum normal working time allowed is 45 hours weekly. This is nine hours per day (excluding a lunch break) if the employee works a five-day week, and eight hours per day (excluding a lunch break) if the employee works more than 5 days per week.
This does not mean that the employee must work 45 hours per week normal time. The amount of normal time worked is a matter of contractual agreement between employer and employee. Some employers work a 40-hour week, and so on.
The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time.
What about lunch hours?
Lunch break is unpaid time and is the employee’s own time – he/she can read a book, go shopping, do exercise etc because they are not paid for lunch breaks.
Therefore an employee who works a five-day week and who receives a lunch break of one hour daily will actually be at the workplace for 50 hours weekly (45 hours normal working time plus five hours daily lunch breaks.)
The lunch break is to be provided after five hours continuous working time. Tea breaks do not qualify as a break in working time. The statutory lunch break is one hour, but by agreement between the employee and employer this may be reduced to 30 minutes.
Employees who earn above the determined threshold amount must negotiate the normal amount of working hours per day or per week with the employer. The employee is under no obligation to work more than 45 hours per week.
What about overtime? Will I be paid?
All overtime is voluntary and may only be worked by agreement between employer and employee.
Maximum permissible overtime is three hours on any one day or 10 hours in any one week. Remuneration must be at 1, 5 times the normal wage rate except for Sunday work and work on public holidays, which must be remunerated at twice the normal wage rate.
Time off, calculated on the same formula, may be granted instead of payment, but only by agreement with the employee.
Employees who earn in excess of the present threshold amount are not subject to the overtime provisions. This means that such employees cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off in view of payment. However, contrary to popular belief, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation.
All forced labour is prohibited, and should the employer require such employees to work overtime then the hours to be worked and the basis of compensation must be negotiated with the employee.
Should the employer refuse to compensate for overtime worked in the case of an “over the threshold” employee, then the employee is entitled to refuse to work the overtime.
What is “overtime worked”?
All hours worked in excess of the employee’s normal hours of work will be regarded as overtime hours.
Therefore, if an employee is contracted to work 45 hours per week normal time, then any hours in excess of that is overtime worked. Similarly, if an employee is contracted to work 40 hours per week normal time, then any hours in excess of the 40 hours is overtime worked.
What about overtime on short notice?
Overtime is not compulsory, and employees can refuse to work overtime on short notice.
However, an employee cannot refuse to work overtime if the work which is required to be done must be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision, such as the sudden breakdown of equipment, and which cannot be performed by employees during the ordinary hours of work.