Application of the Act: Section 3
The Act applies to all employees and employers except members of the National Defence Force, National Intelligence Agency, South African Secret Service and unpaid volunteers working for an organisation with a charitable purpose.
In terms of a ministerial determination as permitted by section 6(3) of this Act: employees earning in excess of R 149 763-00 per annum are excluded from section 6 to 17 and 18(3). In terms of the determination, earnings mean gross pay before deductions for income tax, pension, medical and similar payments.
The basic conditions of employment contained in the Act form part of the contract of employment of employees covered by the Act. Some, but not all, basic conditions of employment may be varied by individual or collective agreements in accordance with the provisions of the Act.
Regulation of working time
The Code of Good Practice on the arrangement of working Time must be read in conjunction with this chapter. The Basic Conditions of Employment Act prescribes certain minimum conditions of employment which must be applied. These are not inflexible conditions, in the sense that the employer may offer a better condition, but he may not offer nor include in any contract a condition that is less favorable to the employee than the corresponding condition contained in the BCEA.
For example, the Act lays down a minimum of 21 consecutive days or 15 working days annual leave on full pay. The employer is permitted to provide any number of days annual leave in excess of the statutory 15 working days, but he may not provide less than the statutory 15 working days. A Ministerial Determination number 356 dated 14th March 2003, lays down what is known as the "earnings threshold", and certain sections of the BCEA do not apply to employees earning above this threshold amount.
The Determination reads as follows:
I, Membathisi Mphumzi Shepherd Mdladlala, Minister of Labour, in terms of Section 6 (3) of the The Basic Conditions of Employment act, number 75 of 1997 determine that all employees earning in excess of R147376-00 per annum be excluded from sections 9 , 10 , 11, 12 , 13 , 14 , 15 , 16 , 17 and 18 (3) of the Act and fix the second Monday after the date of publication of this notice as the date from which the said determination shall be binding.
For the purpose of this notice, "earnings" means: gross before deductions i.e. income-tax, pension, medical aid and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee.
Hours of Work and Overtime:
Chapter 2 of the BCEA regulates working Time, including all hours and overtime. The following is applicable to employees earning less than the determined threshold. The maximum normal working time allowed (section 9 BCEA) is 45 hours weekly. This is 9 hours per day (excluding lunch break) if the employee works a five-day week, and 8 hours per day (excluding lunch break) if the employee works more than 5 days per week.
This does not mean that the employee must work 45 hours per week normal time. The amount of normal time worked is a matter of contractual agreement between employer and employee. Some employers work a 40 hour week, and so on. The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time. Lunch break is unpaid time and is the employee's own time - he/she and read a book, go shopping, etc because they are not paid for lunch breaks.
Therefore an employee who works a 5 day week and who receives a lunch break of one hour daily will actually be at the workplace for 50 hours weekly (45 hours normal working time plus 5 hours daily lunch breaks.) The lunch break is to be provided after five hours continuous working time. Tea breaks do not qualify as a break in working time. The statutory lunch break is 1 hour, but by agreement between the employee and employer this may be reduced to 30 minutes. Employees who earn above the determined threshold amount must negotiate the normal amount of working hours per day or per week with the employer. The employee is under no obligation to work more than 45 hours per week.
All overtime is voluntary and may only be worked by agreement between employer and employee. Maximum permissible overtime is 3 hours on anyone day or 10 hours in any 1 week. Remuneration must be at 1, 5 times the normal wage rate except for Sunday work and work on public holidays, which must be remunerated at twice the normal wage rate. Time off, calculated on the same formula, may be granted instead of payment, but only by agreement with the employee.
Employees who earn in excess of the present threshold amount are not subject to the provisions of section 10 (overtime) of The Basic Conditions of Employment Act. This means that such employees cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off in view of payment. However, contrary to popular belief, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation.
All forced labour is prohibited in terms of section 48 of the BCEA, and should the employer require such employees to work overtime then the hours to be worked and the basis of compensation must be negotiated with the employee. Should the employer refuse to compensate for overtime worked in the case of an "over the threshold" employee, then the employee is entitled to refuse to work the overtime.
What is "overtime worked"?
All hours worked in excess of the employee's normal hours of work will be regarded as overtime hours. Therefore, if your employee is contracted to work 45 hours per week normal time, then any hours in excess of that is overtime worked. Similarly, if your employee is contracted to work 40 hours per week normal time, then any hours in excess of the 40 hours is overtime worked.
Overtime on short notice
Overtime is not compulsory, and employees can refuse to work overtime on short notice. However, an employee cannot refuse to work overtime if the work which is required to be done must be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision, such as the sudden breakdown of equipment, and which cannot be performed by employees during the ordinary hours of work. (Section 6 (2) BCEA):
Remuneration for Sunday and public holiday work.
Should any employee work on a Sunday, he must be remunerated at double his normal wage rate for each our worked, unless he ordinarily works on a Sunday, in which case he must be remunerated at 1, 5 times his normal wage rate for each our worked. Should any employee work on a public holiday, it must be noted that no employer may require any employee to work on a public holiday except in accordance with an agreement with the employee to do so.
If the public holiday falls on a day on which the employee would normally work, the employee is entitled to that day off on full pay, or if he does not work on that day then he is entitled to be paid his ordinarily daily wage plus the amount earned by him for the work performed on that day. Should the public holiday fall on a day on which the employee would ordinarily work then if he works on that public holiday he is entitled to be paid at least double his normal wage rate for the day, or if he does not work, he is entitled to have the day off and be paid his normal wage rate for the day.