WORKING TIMES AND PAY

• The maximum hours of work is 45 hours per week for ordinary pay. (See Section 9 of the BCEA)
• The maximum length of a working day is 9 hours if the employee works a 5-day week, but 8 hours a day if the employee works a 6-day week. Where the working week is compressed (squashed) into fewer days, then shifts of longer hours may be introduced with the employee’s consent. For example, an employee can agree to work shifts of 12 hours over 4 working days, where overtime is only paid once more than 45 hours have been worked in that week.
• Overtime is voluntary and can only be worked where agreed to by the employee. No employee may work more than 10 hours of overtime per week, (subject to the provisions of the applicable Sectoral or Bargaining Council Agreement). For example, farm workers may work up to 15 hours of overtime in any week in terms of the Farm Worker Sectoral Determination. Overtime must be paid per hour of overtime worked, at a rate of one and a half times the employee’s ordinary hourly wage. In addition, no employee may work more than 3 hours overtime in any day (including overtime on that day). Even though overtime is voluntary, if the employee agreed in the original contract to work overtime when necessary, then reasonable overtime must be worked. If the employee refuses to work overtime then they are in breach of the contract and the employer can take disciplinary action against the employee. The employer can also agree by way of a Collective Agreement covering the employee to work up to 15 hours overtime during a week as against the normal ten hours.
• NOTE: While individual overtime is voluntary (subject to an agreement), a collective or joint refusal by a number of employees to work normal overtime will probably constitute a strike or industrial action. This could be a protected strike if the dispute process in the Labour Relations Act has been followed.

SUNDAY WORK

Payment for Sunday work must be the greater of:

• Either, double the normal hourly rate for the amount of Sunday hours worked, OR
• One full day’s pay, even if the employee only worked three hours that Sunday.

If it is normally part of an employee’s normal shift and job to work on a Sunday, then they must be paid at a rate of time and a half their normal hourly rate instead of double time.

Paid time off – An employer and employee can have an agreement that allows the employer to give the employee who works on a Sunday paid time off. The paid time off must be given to the employee within one month of the employee becoming entitled to it unless there is an agreement in writing which extends this period.

Calculating overtime hours on Sunday – Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not used when calculating an employee’s ordinary hours of work but the overtime hours are taken into account when calculating the total overtime worked by the employee during that week. For example, if an employee has already worked 5 hours overtime for the week, they may not work more than another 5 hours on the Sunday because the total number of overtime hours allowed per week is 10 hours.

Shift spread over Sunday and another day – If a shift worked by an employee falls on a Sunday and another day, for example, Monday, the whole shift is regarded as being worked on the Sunday, provided the majority of hours worked, fall on the Sunday. However, if the bigger portion of the shift was worked on Monday, then the whole shift is regarded as being worked on Monday. So if the employee starts work at 20h00 on Sunday evening and works through to 06h00 on Monday morning, the majority of hours falls on the Monday and Monday rate of pay will apply.

Limitations on using Sundays to make up working hours – If an employee is contracted to work 45 hours per week, but has only worked 40 hours for the week for whatever reason, the employer cannot demand that they work 5 hours on the Sunday to make up their normal time.

PUBLIC HOLIDAYS

Employees are entitled to be paid for public holidays that fall on a day that they normally would have worked – even though they will be off and not working on the public holiday.

An employee can agree to work on a public holiday, but this is voluntary.

If an employee does agree to work on a public holiday, which would have been a normal working day, they must get paid double the daily rate of pay or they must be paid double the normal hourly rate for the amount of hours worked on the public holiday, whichever is the greater (if they work ten hours on a public holiday, they must be paid 10 x 2 = 20 hours or double the normal daily rate of pay, whichever is the greater).

Where a public holiday falls on a Sunday, the following Monday is regarded as a public holiday. The public holidays are:

• 1 January New Year’s Day
• 21 March Human Rights Day
• Variable Good Friday
• Variable Family Day
• 27 April Freedom Day
• 1 May Workers’ Day
• 16 June Youth Day
• 9 August National Women’s Day
• 24 September Heritage Day
• 16 December Day of Reconciliation
• 25 December Christmas Day
• 26 December Day of Goodwill

Shift spread over a public holiday and another day – If a shift worked by an employee falls on a public holiday (e.g.Tuesday) and another day (e.g. Wednesday), the whole shift is regarded as being worked on the public holiday (e.g. Tuesday) if the majority of the hours worked, falls on the Tuesday. But if the bigger portion of the shift was worked on the other day (e.g. Wednesday), the whole shift is regarded as being worked on the other day (e.g. Wednesday).

Night shifts on public holidays – With night shift employees, part of the work may be done on an ordinary day and part on a public holiday (after midnight). The whole shift will be regarded as worked on the public holiday, except if the hours worked before midnight are greater than the hours worked after midnight.

Exchanging a public holiday for another day – This can only be done by agreement with the employee. The permission to exchange is not regulated in the BCEA but rather in the Public Holidays Act, and therefore has nothing to do with the payment for the public holiday. The Public Holidays Act states that, by agreement with the employee, a public holiday may be exchanged for another day.

NIGHT WORK

Night work after 6 p.m. and before 6 a.m. is voluntary. employees must be paid an extra ‘night work allowance’ or have their normal working hours reduced. Transport must be available for the employees to get from their homes to work and back. The law is unclear as to who must ‘provide or pay’ for such transport but at least there must be transport available so that the employee can get home at late or early hours.

Health and safety requirements for night work – In terms of s17(3) of BCEA, an employer who wants an employee to work regularly after 23:00 and before 06:00 the next day must do the following:

• Inform the employee in writing or verbally (if the employee can’t read) in a language that the employee understands of any health and safety hazards linked to the night work
• Inform the employee of their right to have a medical examination
• If the employee asks for a medical examination this must be done before the employee starts the shift or within a reasonable time of starting the shift. Medical examinations should continue at appropriate intervals while the employee is doing this work
• The employer should transfer the employee to a suitable day shift within a reasonable time if the employee suffers from health conditions associated with working night work and if it is practical for the employee to be transferred to day work

FLEXIBILITY IN WORKING HOURS

The BCEA allows for some flexibility in the arrangement of working hours, by agreement between the employer and employees (collective agreement) or one employee (individual agreement):

• Compressed working week by collective or individual agreement – Employees can work up to 12 hours of normal work on any day without receiving overtime pay. But the employees may still not work more than 45 normal hours per week and may not work on more than 5 days in a week. Any time worked beyond 45 hours in the week as part of a Compressed Working Week, should be paid at overtime rates of time-and-a-half.
• Averaging of working hours by collective agreement only – Averaging means employees can agree to work longer normal daily working hours than the BCEA usually allows if they get the same number of extra hours worked, off at a later time. This would for example mean that employees could agree to work longer hours in one week for normal pay if they work reduced hours for normal pay the following week. But the employees may still not work more than an average of 45 ordinary hours per week during this period of up to four months. The agreement cannot go on for longer than 4 months. Where reference is made to a collective agreement, then this agreement should be made through the employees’ trade union.

WORKING SHORT-TIME

Short-time means a temporary reduction in the number of ordinary hours of work owing to operational reasons such as reduced orders or profits. An employee is classified as being on short-time if the following applies:

• It is for a temporary period and there is only a limited amount of work available for an employee
• The employee still has a contract of employment with their employer
• The employee expects to return to full-time employment with the same employer

Short-time is an alternative to retrenchment. If for some reason there is less work available but the same number of employees to do it, short-time means that the work can be shared equally amongst employees.

Short-time cannot be imposed unilaterally by the employer because it means changes will be made to employees’ working hours and remuneration. The employer must notify and consult with employees or union representatives before introducing short-time. This consultation must be undertaken as part of a Section 189 (Retrenchment) consultation process and is normally introduced for a temporary period, as an alternative to retrenchment.

Provision for short-time may also be included in the contracts of employment or a collective agreement if it is a custom and practice of the company to do so and employees are aware of this and agree to it.

Short-time has always been regarded as a temporary measure, such as work being reduced to three days a week for a limited period, with the understanding that normal hours of work will resume in the near future.

How are employees selected to work short-time? When an employer selects employees for short-time work, they should apply the same criteria as they would for retrenchment. For example, this could be the Last in First Out principle or a combination of skills depending on operational needs. The criteria used for short-time should be reasonable and applied in a fair manner and should not discriminate against employees on grounds included in the Employment Equity Act. Employers should explain to the affected employees the reason for the short-time and also keep them informed of the situation during the time they are working short-time. Short-time may also be introduced as an outcome of a retrenchment consultation process.

How are employees paid if they are on short-time? Employees only get paid for the time worked. Ordinary deductions may be aligned to the change in payment. Where employees belong to a pension fund, the employer should engage with the fund in order not to prejudice the future of the employee’s contribution and benefits. Deductions should be made with the written consent of the employee.

Can employees claim UIF while on short-time? Employees can claim unemployment benefits based on receiving a reduced income due to short-time. They will not qualify for the full payout of UIF benefits but a portion of this depending on the extent of the short-time.

PAYMENT IN KIND

Wages can be paid partly in kind if the law provides for this. Payment in kind means that an employer pays an employee their wage by giving them housing, use of land or food, as well as money. However, this can only be done if the Minister of Employment and Labour decides that payment in kind should apply to a certain sector. The Minister will also decide what formula to use to determine the value of the payment in kind. In the event of a strike, an employer may not withhold payment in kind and is obligated to ensure its continuation. An employer should then claim back from the employees after agreement has been reached. The Labour Court may be approached in the event of a dispute.

DEDUCTIONS

Deductions from wages (other than those required by law) are not permitted without the written consent of the employee. The deductions required by law that an employer makes from the wages of an employee are as follows:

• Unemployment Insurance Fund (UIF)
• PAYE (tax)
• Any deduction ordered by a court

The lawful deductions that an employer can make from the wages of an employee, if the employee instructs the employer in writing to make the deduction, are as follows:

• Trade union subscriptions
• Medical aid contributions
• Pension or provident fund
• Money to pay back a housing loan or other loan from the employer – The maximum amount that can be deducted to pay the employer for accommodation, food or transport should not exceed 10% of an employee’s wages
• Money for food and accommodation – The maximum amount that can be deducted from an employee’s wage for accommodation is 10% of their wages; and 10% of their wages for food. Deductions can be made up to 25% of the employee’s wage for loss or damages suffered at work as a result of the employee’s negligence or misconduct, provided the employee has been given a hearing to explain the facts and has agreed in writing to the deduction. (Section 34 of the BCEA)

Often employers also make unlawful deductions from employees’ wages. Examples are when:

• The employer says there were shortages in a till and the employee has to pay back the shortages
• The employee breaks something at work
• The employee owes the employer money but did not agree that the amount owing should be deducted
• The employee is off sick and the employer deducts money for the days not worked

If an employer wants to deduct a fine from an employee’s wage, to compensate the employer for loss or damage, the employer can only deduct the fine if:

• The loss/damage happened during the ‘course and scope of employment’
• The employee was at fault
• A fair hearing was held to give the employee a chance to state their case
• The employer does not deduct more than the actual value of the loss or damage
• The total amount deducted is no more than 25% of the employee’s wages
• The employee gives consent in writing (See Problem 1: Money is deducted from an employee’s wages)

DAILY AND WEEKLY REST PERIODS

• No employee’s hours of work may be spread over more than 12 hours per day. (‘Spread over’ means from the start of work to the end of work, including any breaks for meals or rest and any overtime.)
• A rest period of 1 hour is required after every 5 hours worked. This can be reduced to 30 minutes if the employee and employer agree in writing.
• Every employee is entitled to a daily rest period of 12 hours from the end of work on one day to the start of work on the following day. This rest period can be reduced to 10 hours if an employee lives on the premises and gets a meal break of at least 3 hours (this may be relevant to domestic employees, caretakers, farm workers, and so on).
• Every employee is entitled to a weekly rest period of 36 continuous hours. For many employees, this is over the weekend.
• An agreement in writing between the employer and employee may reduce the meal interval to not less than 30 minutes or do away with a meal interval if the employee works less than 6 hours on a day. The agreement can also provide for a rest period of at least 60 consecutive hours (hours in a row) every two weeks.

The BCEA makes no provision for tea intervals although it is common for the employer to grant one or two tea intervals per shift. These intervals are normally deemed to be ‘paid time.’

LEAVE

Leave can be annual (yearly) leave, sick leave, maternity leave, parental leave, commissioning parental leave, adoption leave, family responsibility leave, or unpaid leave.

ANNUAL LEAVE

• Every employee is entitled to 21 consecutive days paid leave per year. This is the equivalent of three weeks off and for the employee who works ‘a five-day week,’ this leave amounts to fifteen working days. An employee who normally works six days every week is entitled to eighteen working days leave which is also twenty-one consecutive days of leave.
• The employee is entitled to take 21 days all in one go but can choose to use the annual leave to take occasional days off work. The employer then deducts these days of occasional leave that an employee took during the year from the annual leave days.
• Annual leave must be taken within 6 months of the end of an annual leave cycle (a year’s work).
• If the employee is off work on any other kind of leave, these days do not count as part of annual leave. Another way of saying this is that annual leave cannot be taken at the same time as sick leave, family responsibility leave or maternity leave.
• If the leave period covers a public holiday, then the public holiday does not count as part of the employee’s leave and the employee should be given an extra day’s leave. (Paid public holidays are: 1 January New Year’s Day, 21 March Human Rights Day, Good Friday, Family Day, 27 April Freedom Day, 1 May Employees’ Day, 16 June Youth Day, 9 August National Women’s Day, 24 September Heritage Day, 16 December Day of Reconciliation, 25 December Christmas Day, 26 December Day of Goodwill.)
• Annual leave cannot be taken at the same time as the notice period.
• Leave pay is not a bonus on top of normal pay. It simply means that an employee gets a holiday every year, and gets normal pay for those days. If an employee doesn’t take leave, or all the leave, the employer will not pay out leave pay instead of leave unless specified through agreement.
• If an employee leaves a job without having taken all the leave that is due to them, the employee must be paid for the days of leave that they have not taken unless this has been specified in the contract of employment or company policy. This is called pro-rata accrued annual leave pay. (See Problem 2: Employee wants to claim notice pay and leave pay)

SICK LEAVE

• A permanent employee is entitled to paid sick leave of 30 days over any 3-year cycle (36 days if the employee works a 6-day week). This amounts to a 6-week period over 3 years and may not be broken down into two weeks per year. During the first 6 months that an employee works for an employer, they get 1 day paid sick leave for every 26 days worked. Once all these paid sick leave days are used up, the employer does not have to pay the employee when they are off sick.
• Only an employee who works more than 24 hours during any month earns sick leave and this is on the basis of one day’s leave for every 26 days worked.
• Seasonal or temporary employees are entitled to 1 day’s sick leave for every 26 days worked over the first 6-month cycle.
• Employees who are sick for more than 2 days, or are sick on two separate occasions within an 8-week cycle may be required to produce a doctor’s certificate. If an employee lives on the premises and it is difficult for him/her to get to a doctor (for example, in rural areas), the employee does not have to produce a certificate unless the employer gives the employee reasonable assistance to get the certificate.
• Sick leave pay is not a bonus on top of normal pay. It simply means that if an employee is genuinely sick and has to take time off work, the employer must pay the employee up to a certain number of days. For example, if a waitress in a restaurant only takes 3 days sick leave this year, the employer does not owe her the money for the remaining sick leave days at the end of the year.

PARENTAL LEAVE

An employee who is a parent of a child but who is not the primary carer is entitled to 10 consecutive days’ parental leave following the birth of their child. For example, if a child is born on a Tuesday, the parent may take leave from that Tuesday until the following Thursday. This leave applies regardless of gender, so it includes parents in same-sex relationships. Parental leave is unpaid (like maternity leave) but employees can claim benefits from the UIF if they have been employed for at least 13 weeks before claiming the benefit.

COMMISSIONING PARENTAL LEAVE

This type of leave refers to surrogate motherhood. The commissioning parent who will primarily be responsible for looking after the child (primary commissioning parent) will be entitled to commissioning parental leave. If there are two commissioning parents, they can choose: if one takes commissioning parental leave, the other can take normal parental leave. The one who takes commissioning parental leave will be entitled to 10 consecutive weeks’ commissioning parental leave. The other parent would be entitled to 10 consecutive days’ normal parental leave.

Leave can start on the date of the birth of the child.

This leave is unpaid (like maternity leave) but employees can claim benefits from the UIF if they have been employed for at least 13 weeks.

FAMILY RESPONSIBILITY LEAVE

Every employee with more than 4 months of service with an employer, and who works more than 4 days a week, is entitled to 3 days paid family responsibility leave per year. This can be taken if a direct family member dies, (this includes a wife or husband or a life partner, the employee’s parent, child, adopted child, grandchild or brother or sister) or if the child is ill. A total of three days is allocated for this kind of leave and not three days for each event. An employee may break these days up, e.g an employee may take half a day off to attend to a child that may be sick at school. Additionally, family responsibility leave allowance lapses at the end of the financial year and is not automatically carried over.

MATERNITY LEAVE

This period of maternity leave is unpaid and the employee can, if she wishes, go on maternity leave four weeks before the expected date of birth, and stay off work for up to another three months after the child is born. Maternity Leave is unpaid though the mother is entitled to claim Maternity Benefits from UIF for up to four months of such leave, subject to the employee having worked for thirteen weeks.

Adoption leave

This leave applies to the adoption of a child that is below the age of two. A single adoptive parent is entitled to 10 consecutive weeks’ adoption leave. If there are two adoptive parents, only one would be entitled to 10 consecutive weeks’ adoption leave. However, the other adoptive parent would be entitled to 10 consecutive days’ normal parental leave. It is up to the adoptive parents to decide who takes adoption leave and who takes parental leave.

Leave can start on the day that the adoption order is granted, or the day that a competent court places the child in the care of a prospective adoptive parent.

This leave is unpaid (like maternity leave) but employees can claim benefits from the UIF if they have been employed for at least 13 weeks. Any leave taken by a mother due to the illness of the baby, following soon after its birth, will be considered maternity leave rather than family responsibility leave.

If the mother wants to come back to work earlier than six weeks after her child has been born, she can do this provided a doctor has given a certificate saying that this is safe for the mother to do. Maternity benefits)

UNPAID LEAVE

An employer may agree to let an employee take extra days of annual leave, or the employee may be sick for longer than the paid sick leave. Then the employer does not have to pay the employee for these days and this is known as Unpaid Leave.

ABSENT WITHOUT LEAVE

If an employee takes leave without getting permission from the employer and is not sick, the employer does not have to pay the employee for the time taken off. If the employee takes off many days in a row without permission and without communicating with the employer (normally more than 4 consecutive days), the employer may presume that the employee has deserted (left without giving notice) their employment. The employer will be entitled to hold a hearing and consider the dismissal of the employee who has deserted employment and after this they may employ someone else to do the job. In this case the employer may dismiss the employee and will not be required to give the employee notice. But if the employee returns, they will have to indicate why they did not communicate with the employer during the extended period of absence and to provide proof of a valid reason for the prolonged absence. The employer will need to consider these facts.

Employers should, in cases of extended absenteeism, always attempt to genuinely contact the employee, should always hold a disciplinary hearing in their absence and should focus the need of replacement on a business imperative based on objectifiable facts.

NOTICE

• During the first six months of employment, employees will be entitled to at least 1 week’s notice of the termination of their services.
• After the first six months, but during the first year of employment, employees will be entitled to 2 week’s notice.
• If they have worked for more than one year, employees are entitled to 4 week’s notice.
• If an employment contract has a longer period of notice than the BCEA, the longer notice must be given and it must be the same for both the employee and the employer.
• Notice works both ways! If an employee resigns without giving the employer the correct amount of notice, for example, one week, the employer can claim one week’s pay from the employee. (See Dismissals)
• Notice must be in writing which will include written communication via social media, such as Whatsapp.
• Neither the employer nor the employee can give notice while the employee is on annual leave.
• Farm workers and domestic workers who have been employed for more than 6 months are entitled to 4 weeks’ notice. (See Problem 2: Employee wants to claim notice pay and leave pay)

All employees are entitled to a written certificate of service when the employee stops working for that employer. The certificate of service sets out the full name of the employer and the employee, the job/s that the employee was doing, the date that the employee began working and the date that the work ended, and the wage at the time that the job ended, including payment in kind.

WRITTEN PARTICULARS IN A CONTRACT OF EMPLOYMENT AND PAYSLIPS

Except for employees who work less than 24 hours a month, when the job starts, the employer must give the employee written particulars about the job, including:

• A description of the job
• The hours that the employee will be expected to work
• Ordinary and overtime rates of payment, including payment in kind and its value
• Any deductions to be made
• How much leave the employee will get
• The notice period

This document is like a contract of employment, but the employee doesn’t have to sign it. If an employee can’t read, the particulars must be explained in a language the employee understands.

The BCEA says an employer must hand the employee their wages with certain details on a payslip, including:

• The period for which the employee is being paid
• The number of overtime hours worked
• The number of hours worked on a Sunday or public holiday
• The wages due to the employee (both normal and overtime)
• The amount and reason for any deductions made for tax, pension, UIF and so on
• The actual amount paid

The BCEA says the employers must keep the following records:

• The time worked by each employee
• The wages paid to each employee

The BCEA (Sections 28 and 29) says an employer who employs less than 5 employees does not have to give the employee detailed information about their wages when they are paid.

PROHIBITION OF VICTIMISATION AND EXPLOITATION

An employer may not victimise, or discriminate against, an employee who refuses to do something that is against the BCEA. For example, if an employee says she cannot work overtime because her baby is sick at home, the employer cannot dismiss her, because the BCEA says that an employer cannot make an employee work overtime without the employee’s consent.

PREGNANCY IN THE WORKPLACE

The Code of Practice on the Protection of Employees During Pregnancy and After the Birth of a Child was issued under Section 87(1) (B) of the BCEA.

Many women work during pregnancy, some even working right up until they give birth and returning while breastfeeding their children. The purpose of this Code is to provide guidelines to employers and employees on the possible hazards and the steps that should be taken to protect the working environment and the health of a pregnant employee, after birth and during breastfeeding.

The provisions in the BCEA on Parental Leave entitle a mother to take up to four months maternity leave and to claim maternity benefits from UIF. A mother is prevented from returning to resume work after giving birth to her child for six weeks after the child’s birth, unless she has a medical certificate from a medical practitioner authorising the early return to work.

Section 26(1) of the BCEA prohibits employers from requiring pregnant mothers and breastfeeding mothers to perform work that is hazardous to the mother and the child. Each workplace is different with respect to the chemical and biological hazards that may affect them. Employers should take the following steps to protect pregnant and breastfeeding women in the workplace:

• Not allow them to perform work that is hazardous to her health and the health of the unborn child
• Assess and control any risks
• Identify, record and review potential risks and protective measures to put in place at work
• List alternative risk-free jobs
• Advise employees to notify them when they are pregnant and inform them of hazards linked to the job
• Encourage employees to notify them immediately they know they are pregnant so that the employer can identify risks and take preventative measures
• Keep a record of each pregnancy
• Evaluate the employee’s position in the workplace including a medical doctor’s examination of the employee’s physical condition, the job done by the employee; workplace practices and potential workplace exposures that may affect them
• If there are potential risks find ways to reduce the exposure and provide training to the employee on how to prevent any exposure to hazards
• Make adjustments to the employee’s station if required and if possible or transfer the employee to safe alternative work
• Allow employees to attend ante and post-natal classes
• Allow breastfeeding mothers to breastfeed for 30 minutes twice per day or express milk daily for the first 6 months of the child being born