Article by listed Attorney: Nanika Prinsloo
The Basic Conditions of Employment Act, Act 75 of 1997 (the BCEA), regulates employment agreements between employers and employees. Read our other article on general concepts of the Basic Conditions of Employment Act .
This article will discuss the regulation of working hours. Read our other articles on the BCEA and Leave
It is said that the ideal hours to work for an employee is a maximum of 40 hours a week. However, not all types of businesses can be successful with only 40 hours a week per employee. Some industries require longer working hours. Employers must regulate the working time of every employee, but such an employer must take into account the health and safety of employees; take cognisance of the employees’ family responsibilities and take into account any collective agreements that may apply to an employers’ sector.
The BCEA determines that employers cannot ask employees to work more than 45 hours in any week. Also employees cannot work more than 9 hours a day if they employee works for 5 days or fewer in a week; or 8 hours in any day if the employee works more than 5 days in a week.
The hours of work can be extended by agreement between the employer and the employee, but not for longer than an hour in a week. Certain sectors allow for 46 hours work a week. The main goal of the Act remains an 8 hour day with a 40 hour working week. Employees who get paid by the hour, will be paid for the hours that they work and if they can’t work more than 8 hours per day, that will be the maximum hours that they can earn s wage.
When employees work overtime, the employer must pay overtime. The parties can agree how the overtime is paid: the employee can either take time off or can be paid in monies. This is particularly suitable where the business that the employees work in are seasonal – the employees can then work longer hours in the busy periods and shorter hours with time off in the slower periods.
The employer and employee must specifically agree that the employee will work overtime and the employer will pay the employee overtime. If they did not agree on the overtime issue, the employer cannot force the employee to work overtime. However, if the employer can show that it is imperative that overtime be worked because of the nature of the employer’s business, he can end the services of the employee who refuses. Dismissal procedure must still be followed.
The BCEA sets daily and weekly work hours and any hours worked over and above that, is overtime. In practise one therefore enter into a service agreement with the employer and the hours of work are set. In the agreement the parties agree to when and how overtime will be worked and how and how much the employee will be paid for such overtime. Any employee may not work longer than 12 hours per day. So 8 hours are ordinary work and 4 hours are overtime, if the parties so agree.
The overtime that must be paid is one and half times the employee’s wage for the overtime that was worked. The parties can agree about how the overtime will be paid, for example give the employee 30 minutes off for every hour of overtime worked (at full pay) or the employee can get at least 90 minutes off for each hour of overtime worked. If the employer wishes to rather give time off than one and a half time the employee’s wage for the overtime, the time off must be taken within one month after the overtime was worked. If the parties agree to it and it is taken up in the service agreement, the time off can be taken off in a 12 month period, but then it must specifically be so contracted in the service agreement.
The employers and employees can “average” their agreement. This means that employers and employers’ organisations and unions can collectively agree that the working hours of employees are evened out, by allowing for the distribution of working time and overtime over a week or period. Employees however cannot be asked to work more than 45 hours in a week over the period agreed upon and cannot work more than 5 hours overtime in a week more than what was agreed upon.
An employee must be allowed enough rest time. An employee is not allowed to work for longer than five hours without having a meal break. This meal break must be at least one hour. If the employer (or the employee) wants to change the lunch hour, then the employee must be renumerated for the lunch hour if the employee works during the lunch hour.
A rest period of thirty six hours must be granted to the employee. That is 24 hours (one day) plus 12 hours. The rest period must include a Sunday, The parties can agree that a rest period can be reduced to 10 hours if the employee lives on the premises where the workplace is situated and whose meal interval is at least 3 hours. This must be in a written service agreement. The parties can also agree, in the service agreement, that the employee will rather have a rest period of 60 consecutive hours every 2 weeks. It must however be agreed upon and in writing.
Employees who work on Sundays, must be paid double his or her wage for each hour worked. However, if the employee normally works on a Sunday, then the employee must be paid one and half times the employee’s wage for each hour worked. If the employee works less hours than the ordinary shift that the employee normally works on a Sunday, then the employee must be paid the ordinary daily wage.
Employees are not, in terms of the BCEA, supposed to work on Public Holidays, but the parties can agree about this and it can be contained in the service agreement. If a Public Holiday falls on a day on which an employee would otherwise have worked, then the employer must pay the employee at least double the amount received or if it is greater, the ordinary amount plus the amount earned by the employee for time worked that day. If the employee does not work on a Public Holiday, the employee must get at least the wage that he or she would have received normally if it was a normal day and the employee worked.
If an employee works after 18h00 and before 06h00 the next day, then the employee is performing night work. The parties must specifically agree that the employee will perform night work and then the employee must be paid an allowance or his working hours must be reduced. The employer must also for night work provide transport for the employees from their houses to their place of work.
The above is a general summary of the hours of work as determined by the BCEA and specific advice needs to be obtained for each particular case.
This article written by Nanika Prinsloo of Prinsloo and Associate Attorneys.
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