Frequently Asked Questions about HR Issues – Hours of Work and Leave
Many misconceptions exist regarding terms of employment. We highly recommend that employers make use of HR consulting companies or attorneys such as Allardyce & Partners to help set up compliant employment contracts, take disciplinary actions, dismiss employees, and get a better understanding of terms of employment as related to work hours, annual leave, and leave pay. Some of the frequently asked questions that HR consulting companies and labour law attorneys receive are briefly answered below.
What if an employee is a manager that earns over the threshold related to overtime pay – can the employer demand that the employee work overtime without additional pay?
No. The law is against forced labour. No employee, not even an employee considered an executive manager or one that earns over the threshold for the conditions of overtime pay can be forced to work overtime. Overtime is voluntary and the employee can thus refuse to work the extra hours. If the employer wants the employee to work overtime, the employer must negotiate this and an agreement must be reached.
How many hours must an employee work before being entitled to overtime pay?
Any extra hours over the normal contracted hours as stipulated in the employment contract are overtime hours.
When can an employee not refuse to work overtime?
If the work to be done is of such a nature that it is absolutely necessary for the employee to work. An example is where essential equipment breaks down and must be fixed immediately or cannot be fixed during the normal work hours of the employee.
Which employees are not covered under the Basic Conditions of Employment Act?
Unpaid volunteers that perform work for a charity organisation and the members of the South African Secret Service, the National Defence Force and the National Intelligence Agency are not covered under the BCEA.
Which employees are not covered by the BCEA section on work hours?
Senior or executive management workers are not covered. However, HR divisions of companies must make sure they understand which persons are considered senior managers. A person that is a front-of-house supervisory manager at a restaurant without any executive decision-making power such as the right to appoint or dismiss employees and who doesn’t earn over the threshold amount is, for example, not a senior manager. Other employees not covered include employees working less than 24 hours a month, sales staff travelling or determining their own work hours, emergency workers (excluded from certain conditions) and workers who earn more than the threshold amount as stated in the BCEA.
How many hours can an employee work on a day?
The maximum allowable hours are 12 hours of work in one day. Note that there must be a 12-hour rest period before the next work shift.
What are the maximum overtime hours per week?
The law makes provision for a maximum of 10 hours overtime a week. However, if so agreed between the employer and the employee, up to 15 hours overtime a week can be worked for maximum of 2 months of the year. We strongly recommend making use of the expertise of labour attorneys or HR consulting companies when it comes to additional overtime work terms in the employment contract.
If the employee takes their annual 21 days leave over a period in which there are public holidays, can the employer include the public holidays in the 21 days?
No, the employee is entitled to an additional day leave added for every public holiday that falls within the leave taken. We also recommend getting legal guidance on the calculation of leave days.
Can an employer demand that the employee work for the employer during their annual leave?
No, under no circumstances may the employer allow the employee or demand the employee to work during their annual leave.
When should the employer pay the annual leave?
Unless by agreement to pay on the employee’s normal pay day, the employer must pay the annual leave pay at the start of the employee’s leave period.
How many hours of consecutive rest must the employer award to the employee?
The employee is entitled to a period of 36 hours of consecutive rest per week or if so agreed, to 60 consecutive hours rest period every second week. Only if so agreed can the employer shorten the rest period in a given week to 8 hours, provided the rest period in the next week is longer.
Get answers to issues related to work hours, leave days, overtime and payment of remuneration in South Africa. Contact us at email@example.com or on 011 234 2125.
NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.