The Basic Conditions of Employment Act, 75 of 1997 (“BCEA“), specifically prescribes additional payment for employees who are required to work on public holidays. If an employee works on a public holiday, he must be paid double the wage for work on that day.
Employers should also take note of the fact that section 18(1) of the BCEA states that no employer may require any employee to work on a public holiday unless the employee agrees thereto. This requirement does not apply to employees who need to do work which is required to be done without delay owing to circumstances for which the employer could not reasonably have expected to make provision and which cannot be performed by employees during their ordinary hours of work. The entire section which deals with public holidays including additional payment does not apply to employees who are employed in senior managerial positions or who earn more than R 205 433.30 per year or R 17 119.16 per month.
Why do we say it is an expensive exercise? The question, has been asked what happens when a public holiday falls on a Sunday? How do you pay your employees if both Sunday and Monday are deemed to be public holidays? To answer these questions one must take the following into consideration.
The Public Holidays Act, 36 of 94 (PHA) determines that whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday.
Section 18(2) of the BCEA states that if a public holiday falls on a day on which an employee would ordinarily work, an employer must pay an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day. Section 18(2)(b) goes further and states that if an employee works on a public holiday he/she will be entitled to at least double the amount that the employee would ordinarily have received for work on that day; or if it is greater, the amount referred to above plus the amount earned by the employee for the time worked on that day.
If the public holiday is not the employee’s normal day of work, and the employee agrees to work on such day, the employee must be paid his normal rate of pay for the day, plus the amount actually earned for work on the public holiday.
In the case of Randfontein Estates Ltd v NUM, the Labour Appeal Court was faced with a similar situation in which Randfontein Estates operated a continuous operations system which worked on Sundays, but not public holidays. Employees felt that any work is done on a Sunday, a public holiday should be paid in terms of the BCEA. Due to the Sunday being a public holiday, Monday was also a public holiday, and that workers would not work, but would be paid for Monday.
The Court held that where a public holiday falls on a Sunday the legislature intended that the Monday should be a public holiday in addition to the Sunday.
Therefore, due to the fact that both Sunday and Monday are regarded as public holidays, public holiday rates may come into play for both days. However, it depends on what days employees would ordinarily work in a particular establishment.
The Court distinguished between 2 scenarios:
1. Normal working week employees
- The term ‘normal working week employees’ is used here used to refer to those employees who work a usual or normal working week from Monday to Friday, every week. This category will cover the majority of office workers whose contracts of employment require them to work only five days a week, Monday to Friday.
- For employees who fall within this category, the decision in Randfontein Estates Ltd v NUM is of easy application. Here the employee is not ordinarily required to work on a Sunday, which is the Public Holiday. In terms of the BCEA, since the employee does not usually work on the public holiday, and does, in fact, work on the public holiday, no extra payment is required. It is only if the employee is requested to work, and does, perhaps to cover for employees who are now taking the day as a public holiday that this relief employee will be paid in terms of section 18(3) of the BCEA.
- It is these employees who would lose out if the Monday did not also become a public holiday. Now, because of the decision in Randfontein Estates Ltd v NUM, the Monday becomes a public holiday and these employees can either take the public holiday or work on the day and be paid in terms of section 18(2) of the BCEA.
2. Weekend work employees
- The term ‘weekend work employees’ is here used to refer to those employees who work a standard or normal working week which includes a Saturday and Sunday, or just a Sunday, but which does not require work on a Monday, every week. This category may apply to particular industries such as retail, which requires services to be provided to customers seven days a week.
- In this case, Employers need to take into account this ruling when organizing its workforce to work on public holidays, and to ensure that the correct payments of time worked on public holidays are made to employees in terms of the BCEA, or the applicable sectoral determination or collective agreement.
Please contact your nearest SEESA office in order to assist with all Labour enquires that you might have.
ABOUT THE AUTHOR
Stephan le Roux obtained his BCom, LL.B and LL.M degrees from the North-West University Potchefstroom campus. He was admitted as an Attorney of the High Court of South Africa in 2015 and is currently employed as a Senior Legal Advisor at SEESA Labour Head Office in Pretoria.