Regulation of working time is regulated by Chapter two of the Basic Conditions of Employment Act 75 of 1997( hereinafter referred to as the BCEA).
Ordinary hours of work are regulated by section 9 of the BCEA. It states as follows:
(1) ….an employer may not require or permit an employee 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.
This in essence means that a worker must not work more than the periods stipulated above.
If overtime is needed, the employee must agree to do it.
Overtime is regulated by section 10 of the BCEA, and it provides that “an employer may not require or permit an employee to work-
(a) Overtime except in accordance with an agreement;
(b) More than ten hours’ overtime a week.
(1A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day,
(2) An employer must pay an employee at least one and one – half times the employee’s wage for overtime worked.
(3) Despite subsection (2), an agreement may provide for an employer to-
(a) pay an employee not less than the employee’s ordinary wage for overtime worked and grant the employee at least 30 minutes time off on full pay for every hour of overtime worked; or
In summary, overtime must be paid at 1.5 times the workers' normal pay or by agreement, get paid time off.
A collective agreement may increase the maximum permitted overtime to 15 hours a week.
The issue of tea breaks would have to be stipulated in the policy or agreement of the company concerned. This will vary in accordance with each company’s policy.
Section 8(1) of the BCEA of 1983 provides that:
No employer shall require or permit an employee to work overtime otherwise than in terms of an agreement concluded by him with the employee and provided such overtime does not exceed three hours on any day or 10 hours in any week.
In National Union of Metalworkers of SA v Macsteel (Pty) Ltd 1992 (3) SA 809 (A), the Appellate Division held that section 8(1) of the 1983 Act did not confer any new rights upon employees but penalised employers who coerced employees into working overtime without their agreement.
In Food & Allied Workers Union v Ceres Fruit Juices (Pty) Ltd (1996) 17 ILJ 1063 (C), the court stated that “It would be ridiculous that employees should not be entitled to payment for work done in accordance with the unlawful system”. In Marsland v New Way Motor & Diesel Engineering (2008) 11 BLLR 1078 (LC), it was held that the same applies in terms of the current BCEA.
Requiring employees to work overtime in excess of the hours permitted by section 10, resulting in their refusal to continue working for the employer, has been held to be constructive dismissal.
In PTWU & others v Magnum Security (Pty) Ltd & another (2002) 1 BLLR 80 (LC), the applicants sought an order compelling the employer to pay them the difference between their actual pay and what they would have been paid had they worked 60 hours per week. The Court held that, to succeed, they needed to establish a clear right, which meant showing inter alia that they were entitled and obliged to work 60 hours per week, consisting of 50 ordinary hours and 10 overtime hours. The Court referred the matter for oral evidence.
Compressed work week
Compressed working week is regulated by section 11 of the BCEA.
It states that an employee may be required as a result of an agreement in writing, to work up to 12 hours in a day.
Averaging of hours of work , stipulates that a collective agreement may permit the hours of work to be averaged over a period of up to four months. An employee who is bound by such an agreement cannot work more than an average of 45 ordinary hours a week over the agreed period and an average of five hours of overtime in a week over the agreed period. A collective agreement for averaging lapses after 12 months and must be re-negotiated.
An employee who works continuously for more than five hours, is entitled to a meal break of at least one continuous hour. A written agreement may reduce the meal interval to 30 minutes and dispense with the meal interval for the employee who works less than 6 hours a day.
The provisions of meal intervals are regulated by section 14 of the BCEA of 1997.
Section 7 of the 1983 Act provided that:
(1) No employer shall require or permit an employee—
(a) to work for more than five hours continuously without a meal interval of not less than one hour, or, where subsection (2) has been applied, of not less than the agreed time;
(b) to perform any work during his meal interval.
(2) An employer may conclude an agreement with his employee to shorten such employee’s meal interval to not less than 30 minutes, but such agreement shall not be of any force and effect unless the employer, excluding the employer of a domestic worker, has given written notice of such agreement to an inspector.
(3) For the purposes of this Act—
(a) a period of work interrupted by an interval of less than one hour, or, in the case of a meal interval regulated by an agreement under subsection (2), by an interval of less than the agreed time, shall be deemed to be uninterrupted . . .”
In Simba (Pty) Limited v FAWU & others (1997) 5 BLLR 602 (LC), the employer sought an order compelling employees to stagger their lunch breaks in terms of a collective agreement. The court declined to do so on the grounds that it would result in contravening section 7 of the 1983 BCEA in that some employees would be required to work for a period of longer than five hours before taking lunch. “To the extent that the terms of the agreement between the parties may be in conflict with the provisions of the BCEA,” it was held, “such terms are . . . unenforceable”. The fact that workers choose to exercise their right collectively does not convert their action into a strike. “What could confer the right on the employer to require the employees to work further”, the court found, “is to allow them a meal interval first”.
Similarly, in Mlaba v Masonite (Africa) Ltd & others (1998) 3 BLLR 291 (LC), it was held that an instruction to an employee to work during a meal interval was “absolutely prohibited” by section 7 of the 1983 BCEA and was therefore unlawful. The court stated that the fact that the employee “was unaware of the provisions of section 7, is irrelevant to the legality of the instruction . . . Indeed, so important is this protection that employees may not even waive such protection nor may they agree to the contravention of such provisions”.
The same reasoning would be applicable to section 14 of the 1997 Act. The difference is that while section 7(1) of the 1983 Act barred an employer from requiring or allowing an employee to work for more than five hours without a meal interval, section 14(1) places a positive duty on an employer to give an employee who works “more than five hours” a meal interval.
The subsection seems to denote that a meal interval must be provided on completion of five hours of work.
Daily and weekly rest period
An employee must have a daily rest period of least 12 continuous hours and a weekly rest period of at least 36 continuous hours, which, unless otherwise agreed, must include Sunday.
A worker who sometimes works on a Sunday must get double pay. A worker who normally works on a Sunday must be paid at 1.5 times the normal wage. There may be an agreement for paid time off instead of overtime pay.
In FAWU v CCMA & others (2007) 6 BLLR 499 (LC), the court was faced with a dispute over the application of a collective agreement regulating the rate of payment for Sunday work to a shift that began on a Saturday and was completed on the Sunday. The court concluded that, notwithstanding the limitation imposed by section 16(5), “the employees were entitled to the special rate for Sunday work stipulated in the collective agreement. A CCMA award to the contrary was accordingly set aside.”
Night work is regulated by section 17 of the BCEA 1997. Night work means work that is done after 18:00 and before 6:00 the next day.
Transport must be available but not necessarily provided by the employer.
Section 18 of the BCEA deals with public holidays. It basically states that an employer may not require an employee to work on a public holiday except in accordance with an agreement. Employees must be paid for any public holiday that falls on a working day. Work on a public holiday is by agreement and paid at double the rate.
In Randfontein Estates Ltd v NUM (2006) 7 BLLR 683 (LC), it was held that section 2(1) of the Public Holidays Act, must be interpreted as meaning that, where a public holiday falls on a Sunday and the following Monday becomes a public holiday, that Monday is a public holiday in addition to the public holiday on the Sunday and not instead of it. On appeal, in Randfontein Estates Ltd v National Union of Mineworkers (2008) 29 ILJ 998 (LAC), the parties agreed that the case turned on whether the legislature intended in the Public Holidays Act 36 of 1994,that the number of paid public holidays be limited to 12 and no more or that there should be at least 12 public holidays in a calendar year. The Court held that the latter interpretation was correct.
An employer does have to pay overtime to the following categories of employees as set out in section 6(1) and 6(3) of the BCEA of 1997:
1. Senior managerial employees
2. Sales staff who travel to the premises of customers and who regulate their own hours of work
3. Employees who work less than 24 hours a month for you
4. Employees who earn more than R149 736 per year (The Minister will change this amount from time to time)
Employees have the following recourse in the event that the employer fails to pay or is late in the payment of the employee’s salary:
1. The matter must be referred to the Department of Labour and a complaint must be lodged.
2. The employee may also institute a civil action against the employer for monies that had been wrongfully deducted.