As per the Basic Conditions of Employment Act (BCEA), overtime constitutes:
All hours worked by an employee exceeding the employee’s normal daily/weekly hours of work if, for example, an employee is contracted to work 45 hours per week, then all hours exceeding those normal working hours will regarded as overtime. The same will apply if an employee is contracted to work 40 hours per week. Again, all hours exceeding the 40 hours will be regarded as overtime.
Agreement with workers – a necessary arrangement
Overtime is not compulsory. Unless employees have agreed to work overtime, they cannot be forced to work hours exceeding their normal working hours. It is therefore imperative that an agreement be reached between the employer and the employee with regards to required overtime. When considering overtime, employers must take into account fairness towards the employee.
However, there are exceptions to most rules: Circumstances may exist where the employee cannot refuse to work overtime.
When is overtime compulsory?
An employee can be required to work overtime if the work that must be done is urgent, owing to circumstances for which the employer could not have planned. A simple example will be where a sudden breakdown of equipment occurs.
The Earning Threshold
Employers must be aware of specific rules applicable to employees earning above/below the threshold as published by the Minister of Labour. The current threshold is R205 433,30 and employees earning above this threshold are excluded from some rights.
Employees earning under the threshold amount have the full protection of every Section of the BCEA such as overtime pay arranged with the employer, to demand payment for overpay at 1.5x of normal wages, trading time off for overpay, etc.
However, persons earning over the threshold amount do not have a legal right to demand anything in respect of Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) of the BCEA, but they do have a right to negotiate.
Employees who earn in excess of the present threshold amount are not subject to the provisions of Section 10 (Overtime) of BCEA. This means that they cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off. Contrary to popular belief, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation, unless the employee agreed to this.
Section 48 of the Basic Conditions of Employment Act prohibits forced labour and should an employer require employees to work overtime, then the hours to be worked and the basis of compensation will have to be negotiated between the two parties. It is important to remember that employers must similarly be willing to negotiate.
It is extremely important to remember that the employer may not, upon learning of the threshold earnings notice, make unilateral changes to the employment conditions of employees earning in excess of R205 433.30 per annum. The conditions agreed upon in the initial employment agreement are legally binding and must be honoured unless it is mutually agreed to changes these conditions. For more information on this topic, read the complete article here.