There is a small but important section of the Basic Conditions of Employment Act (BCEA) business owners often neglect to take into account when regulating employees’ working hours. This is not referring to family responsibilities and occupational health and safety, which should be taken into account when regulating employees’ working hours in accordance with Section 7 of the BCEA, but daily and weekly resting periods. Daily and weekly resting periods are addressed in Section 15 of the BCEA. The importance of this can also be directly linked with occupational health and safety.
The interesting fact here is that Section 15 of the BCEA is contained in Chapter 2 of the BCEA, a section which is then (as per the BCEA and Ministerial announcements) automatically not applicable to:
- Senior managerial employees;
- Sales representatives who arrange their own working hours;
- Employees working less than 24 hours per month;
- Employees earning over the annual threshold as announced by the Minister from time to time, which currently is R205 433.30 (hereafter referred to as the ‘excluded employees’).
Summary of Section 15 of the BCEA
Section 15 of the BCEA is applicable to all normal employees, in other words all employees that do not fall under the excluded employees as mentioned earlier.
Daily resting periods: An employer must allow an employee a daily rest period of at least 12 consecutive hours between ending and re-commencing work. A daily rest period may, by written agreement, be reduced to 10 hours for an employee:
- living on the premises at which the workplace is situated;
- whose meal interval lasts for at least three hours.
Weekly resting periods: A weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday. A weekly rest period may, by written agreement, provide for:
- a rest period of at least 60 consecutive hours every two weeks;
- an employee’s weekly rest period being reduced by up to 8 hours in a week if the rest period in the following week is extended equivalently.
Does this mean that the excluded employees are not entitled to rest periods?
The answer here is technically yes. However, the influence of Section 7 of the BCEA, which also falls under Chapter 2 of the BCEA of which the earlier mentioned employees are excluded must be considered, as the Occupational Health and Safety Act does not address this issue directly and concretely.
Section 7 of Chapter 2 of the BCEA must be taken into account when negotiating the regulation of working hours by employer, as it stipulates that family responsibilities and occupational health and safety of all employees must be taken into consideration when arranging working hours. Fairness and reasonableness should also always be taken into account.
In answering how much rest excluded employees should then get – it will be dependent on the arrangement between the employer and the employee to agree to resting periods of a shift system. The most important element to always take into account, will be the employee’s health and safety when regulating working hours.
ABOUT THE AUTHOR
MJ van Dyk obtained his LLB from the University of the Free State and completed his board examinations and articles in Bloemfontein. He was subsequently admitted as an attorney of the High Court of the Free State in 2010. He joined SEESA in November 2010 as a legal advisor to specialise in the Labour Law and is currently a SEESA Labour Senior Legal Advisor.