Overtime And Labour Law
South African Labour Laws do not need to be overly complicated. Take a look at some of the laws concerning Overtime, Compensation, Overtime Salary and Working Hours. Said laws should be regulated in accordance with the provisions of any Act governing occupational health and safety, with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87(1)(a) of the Act, and with due regard to the family responsibilities of employees.
Some basic rules to follow in regard to employees that earn below the overtime threshold of R205 433.30 per year:
- Overtime may only be worked by agreement between employer and employee (which must be discussed and agreed upon within the first 3 months of employment).
- The employee has the legal right to demand payment for overtime worked at the rate of 1,5 times his normal wage rate.
- The employee can also enter into an agreement with the employer whereby he can be given time off work instead of payment for overtime worked.
- Generally, the employee can legally refuse to work more than 45 hours per week normal time, more than 10 hours per week overtime, and more than 12 hours in any one day, consisting of nine hours normal time and three hours overtime. There are some circumstances where the employee may not be able to refuse, such as in emergency overtime.
The following employees are not entitled to overtime, unless otherwise stated in their contracts:
- Senior Managerial employees.
- Employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work.
- Employees who work less than 24 hours a month for an employer.
Let’s delve a little deeper into the above points:
Normal Working Hours
45 hours are the norm, according to the Basic Conditions of Employment Act (BCEA) of South Africa. If an employee works 5 days a week, they may work a total of 9 hours a day, excluding lunch breaks, and 8 hours a day if they work more than 5 days a week. Some contracts might differ, and an employer might only require 40 hours in a 5-day week. In the end, this will be determined by your contract negotiations.
45 hours, however, are the limit. Should an employee be required to work more than that, said employee will be entitled to Overtime pay.
Because lunch breaks are unpaid, an employee who works 45-hour weeks, will actually be at work for 50 hours a week. It is, of course, the employees’ choice what he/she does with their break. They can spend it at the office, doing shopping, etc.
Lunch breaks are generally an hour long, however, upon agreement, this can be reduced to 30min or 45min, depending on the employer. Some employers prefer to grant their staff a tea break, thus reducing their lunch breaks.
Employees may refuse overtime, especially if no advanced warning was given. But it cannot be refused if the employer had no reasonable way of ensuring the work is finished within normal working hours, or if an emergency arose at work that needed to be resolved.
The maximum any employee may work overtime in one week is 10 hours, and no more than 3 hours per day.
Normal overtime, which does not include Sundays or public holidays, are at 1.5x normal pay. Remuneration for Sundays and public holidays are twice normal pay. Time off, calculated on the same formula (90 minutes for every 60 minutes worked), may be granted instead of payment. This may only be done if agreed upon by the employee.
As stated, employees who earn above the threshold, senior staff, or work in sales and have to travel and regulate their own hours, are not entitled overtime pay. This, however, does not mean that they must work overtime. Just like below the threshold staff, they are entirely entitled to refuse to work overtime, and may negotiate compensation for hours worked.
Important to note:
- Forced labour is prohibited. All overtime and compensation must be negotiated.
- Overtime does not only apply to working in the office. You also cannot force an employee to be on standby duty, attend callouts, etc.
- It is also very important to remember that, upon learning of an employee’s threshold earnings, no changes to contracts may be made without the employee’s permission, to benefit the employer and force any type of overtime upon said employee.
- Contract negotiations lapse yearly. In absence of a new agreement, employees may refuse to work Overtime entirely.
Expensive CCMA cases are often opened because of overtime. It is very important for any employer to keep a record of exactly which hours were worked by employees. Automation of payroll not only saves time, it also helps protect your business from false claims of unfair pay and work hours.
To see how ERS can benefit your business, contact us for a free consultation.