Chapter two of the Basic Conditions of Employment Act regulates working hours and overtime. The regulations do not apply to the following:
- 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.
Every employer in South Africa must regulate the working time of each employee;
- Under the provisions of any Act governing occupational health and safety;
- with due regard to the health and safety of employees;
- With due regard to the Code of Good Practice on regulating Working Time issued under section 87(1)(a) of the Act; and
- With due regard to the family responsibilities of employees.
Before we can understand overtime, we need to see what Section 9 of the Act, dealing with ordinary hours, says:
What are ordinary hours?
According to Section 9, ordinary hours are 45 hours in any week. This means a 9-hour day for five days or an 8-hour day for more than five days a week. Section 9(1)(a) states that an employer may not require or permit any employee to work more than 45 hours in any week.
One must keep in mind that lunchtime is not paid time and should not be calculated as part of the ordinary hours.
Overtime
Section 10 of the Act deals with overtime. The provision in this section reads that an employer may not require or permit an employee to work overtime except in accordance with an agreement, and then the Act limits the number of overtime hours per day or week.
The agreement referred to in this section will only apply for 12 months and need to be renewed after this period (Section 10(5)).
What if an employee refuses to work overtime?
Overtime can never be forced on an employee; it always remains voluntary. Therefore, an employee may refuse to work overtime hours. However, this does not limit the employer’s right to expect employees to work overtime hours, as long as it is an operational requirement.
The problem the employer is faced with is that according to Section 48 of the Act,
- Subject to the Constitution, all forced labour is prohibited.
- No person may, for their own benefit or for the benefit of someone else, cause, demand, or impose forced labour in contravention of subsection (1). This constitutes an offence.
As stated in Section 10, the need for the agreement is thus clear. Such an agreement must be thorough and clearly understood by all parties involved. Should employees refuse to enter into such an agreement and consultations between employer and employees, or their representative unions have been exhausted, the employer can embark on a retrenchment procedure based on operational requirements in Section 189 of the Labour Relations Act, 1995. This must be a matter of last resort, though.
Should you have any questions, or require assistance regarding such an agreement or the consultation process in the workplace, contact your nearest SEESA Labour legal advisor for expert advice. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Charle Koegelenberg started his career at SEESA in January 2009. He is currently a Labour Legal Advisor and acts as a Training Facilitator at the SEESA Kimberley branch.
Resources:
- Section 9, 10 and 48 of the Basic Conditions of Employment Act, 1997;
- https://www.labourguide.co.za/hours-of-work-and-overtime Nicolene Erasmus and Jan du Toit.