Understanding the Basics of Working Hours
Published in Labour Law · 5 July 2022
In our previous article we mentioned that South Africa’s primary pieces of labour legislation are the Basic Conditions of Employment Act 75 of 1997 (BCEA) and the Labour Relations Act 66 of 1995 (LRA). We can consider the abovementioned legislation to be a broad framework within which the employment contract exists as a specific application within the ambit of the law for a specific position of employment. Suffice it to be said that the contract of employment is a very important document for the employer and the employee. The BCEA itself is a term of every employment contract.
The BCEA is the most fundamental act that details employment conditions from working time and leave to remuneration and termination of employment, so it is good place to start building our framework. The BCEA begins by detailing the regulation of working time. Notable to the chapter on regulation of working time is that it excludes Senior Managers, Travelling Sales Staff, those who work less than 24 hours a month and those who earn above the current minimum earnings threshold.
The only clause that is not excluded and applies to every employee tells us that the hours of work of every employee must be regulated by the employer in accordance with the Occupational Health and Safety Act 85 of 1993(OHSA) and the Code of Good Practice On The Arrangement of Working Time. This law ensures that the regulation and arrangement of working time considers the health, safety and well-being of the employee.
An employee’s hours of work are classified as either “Ordinary working hours” or “Overtime” and will be defined in the contract of employment. Ordinary working hours cannot exceed 45 hours per week (9 hours per day if working 5 days a week, and 8 hours per day if working 6 days a week). If an employee earns above the minimum earnings threshold or falls under another excluded type, then he/she may be required to work longer than 45 hours. Lunch breaks do not count as working time so an employee may be spending 50 hours or more at work per week but may only end up clocking 45 work hours a week because he/she has taken 1-hour lunchbreaks every day.
Overtime is any amount of time that is worked over and above the agreed upon ordinary working hours, which is usually detailed in the employment contract. Working Overtime should be part of an agreement and may not exceed 10 hours per week. Overtime cannot exceed 3 hours per day and overtime shall be remunerated at one and a half times the normal hourly rate or an equivalent amount of time off. If an employee earns above the minimum threshold, unfortunately he/she cannot demand payment for overtime worked but at the same time they will require an overtime agreement as part of the terms of employment.
There is a provision for a Compressed Week in the BCEA that allows for an agreement where an employee works for 5 days or less per week and increases the Ordinary hours up to 12 hours a day provided that the total Ordinary hours worked does not exceed 45 hours a week.
The BCEA is a term of every employment contract and ensures fair labour practise is prioritised for the employee. The employer can also find solace in the amount of space that is created within the framework of the BCEA to draft their employment contracts to suit their business needs. The next article will discuss the different types of leave and the Labour Laws amendments.
This article does not constitute legal advice and is based on the author’s interpretation of legislation and case law. Book a consult for legal advice or assistance pertaining to your specific matter.