Working times and overtime are regulated by Chapter two of the Basic Conditions of Employment Act.
The act applies to all employees except members of the South African Defence Force, National Intelligence Agency, State Security Agency, and unpaid volunteers working for a charitable organisation. Workers engaged in emergency work are excluded from certain provisions
Certain sections, including the sections on overtime, are also not applicable to:
- Senior managerial employees
- Sales staff who travel to customers and regulate their own hours of work
- Employees who work less than 24 hours a month for an employer
- Employees who earn more than the threshold amount (at time of publishing this was R205,433.30 per annum or R17,119.44 p/m)
The act states that the maximum ‘normal’ hours of work are 45 hours per week. The maximum ‘normal’ hours in a day would be 9 hours a day if the employee normally works 5 days or less a week, or 8 hours a day if they normally work more than 5 days a week.
However, this does not mean that an employee must always work a 45 hour week before overtime kicks in. The normal hours would be as per the contract signed by the employer and employee and could be less than 45 hours. If the employee normally works 40 hours a week, then any hours over 40 would be regarded as overtime.
Those earning above the threshold need to negotiate with their employer what their normal hours would be and this could be more than 45 hours.
Meal breaks are not included in the calculation of working hours and are unpaid. (However, an employee must be paid for the portion of a meal break that exceeds 75 minutes, unless they live on the premises.) So if an employee works a nine-hour day and has an hour meal break, they will be on-site for 50 hours a week but are still seen as working for only 45 hours. A meal break is normally an hour but can be reduced to 30 mins by contractual agreement.
Overtime can not be compulsory, and an employee cannot be expected to work overtime on short notice unless they have contractually agreed to do so. Having said this, an employee cannot refuse to work overtime if the work required must be done without delay owing to circumstances which the employer could not have planned for, such as repairing a machine that has broken down.
The maximum permissible overtime in a week is 10 hours in any one week or 3 hours in any one day. Employees earning less than the threshold should earn 1.5 times the normal rate of pay for any overtime except on a Sunday or public holiday when they should earn double pay. However, if the employee normally works on a Sunday, then work on a Sunday would be paid at 1.5 times their normal rate.
By agreement, the employer may give the employee paid time off instead of paying the employee for overtime. In this case, the employer must give the employee time off calculated using the same formulas (ie. one and a half or double the hours, depending on when the overtime was worked). This time off should be granted within one month of the overtime being worked, although this can be extended to one year by agreement. The parties can also agree to a combination of pay and time off.
Employees who earn over the threshold have no right to demand extra pay for working overtime. Nor can they demand time off for overtime worked. However, they still must agree to any overtime and cannot be forced to work overtime, or work overtime without compensation, unless they have agreed to do so. Whereas they don’t have a right to demand these things, they do have a right to negotiate for them.
It is important to note that any agreement reached on overtime during the first three months of working will expire after one year, and a new agreement needs to be reached.
The Measured Ability group provides recruitment and labour broking services for all industries, all over South Africa as well as other parts of Africa and the Middle East. We can provide candidates for permanent or temporary placements, or we can hire out our own employees to you, which means we become responsible for all admin including payroll, leave (and overtime) admin, Industrial Relations and much more. Contact us for more information.
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