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I know we have addressed this subject previously in Labour Guide newsletters, and I don't want to bore you with repetition. However, over the last two weeks I have received dozens of e-mails from employers (probably because of the Easter holidays} inquiring about who is entitled to be paid for public holidays, do they have to pay this employee or that employee, and so it seems obvious that they are still large numbers of employers who do not quite understand the concept of public holidays, and to compound the problem there is a lot of urban legend out there regarding public holidays.
Firstly, public holidays are regulated in section 18 of the Basic Conditions of Employment Act (BCEA). The conditions in section 18 apply to ALL employees - namely permanent employees, temporary employees, fixed term contract employees, the so-called " independent contractor" employee, project-employed employees, employees on basic salary, employees on basic salary plus commission, employees earning commission only - section 18 applies to every single one.
There is absolutely nothing whatsoever in section 18 which excludes any class of employee. The earnings threshold of R115572-00 per annum determined by the Minister, states that employees earning over that amount are excluded from section 18 (3) only - the remainder of the section still applies to that class of employee. Section 18 (3) deals only with the amount to be paid to employees who earn under the threshold amount, if the employee works on a public holiday on which he would not ordinarily work.
Thus, all employees, whether earnings are above or below the threshold amount, are entitled to public holidays. First and foremost - an employee only works on a public holiday if he agrees to work it – section 18(1). The entitlement is to have the day off on full pay. The employee does not require the employer's consent to have the day off on full pay - the law states that he can have the day off on full pay. If the public holiday falls on the day on which an employee would normally work - such as Good Friday is a public holiday, but being a Friday, it is a day on which the employee would normally have worked if it were not a public holiday - the employer is bound by section 18 (2)(a) to pay that employee his normal wage for the day if the employee does not work on that day.
Therefore, the employee is legally entitled to have Good Friday off on full pay. The same applies to Easter Monday, or any other public holiday on the calendar which falls on a day on which the employee would normally work. If the employee works on that public holiday, the employer must pay in at least double his normal wage rate for the day (section 18(b) (1)), or, if it is greater, his normal wage rate for the day plus the amount earned by the employee for the time worked on that day.
This may become applicable in the case of hourly paid workers.If an employee works on a public holiday on which he would not ordinarily work – example, where the hours of work are averaged, or perhaps in the Security industry where an employee might be requested to work on his day off which happens to be a public holiday, or the public holiday happens to not be his normal shift - then the employer must pay that employee his ordinarily daily wage, plus the amount earned by the employee for the work performed on that day. This may be an additional day's wages, or it may be calculated by time in the case of an hourly paid employee.
Any payment for work done on public holidays must be paid to the employee on his usual payday.It should also be noted (regarding night shift workers) that if the shift worked by the employee falls on a public holiday and another day (such as night shift on Easter Monday - the shift is partly Easter Monday, and partly Tuesday which is not a public holiday) then if the greater part of the shift was worked on the public holiday, the whole shift is deemed to have been worked on the public holiday.
If the greater part of the shift falls on the other day, then the whole shift is deemed to have been worked on the other day. There is one other thing - and that is the exchange of a public holiday for another day, by agreement with the employee. This permission to exchange is not regulated in the BCEA. It is regulated in the Public Holidays Act, and therefore has nothing to do with the payment for the public holiday. The Public Holidays Act states that, by agreement with the employee, a public holiday may be exchanged for another day.
As an example, let us take Easter Monday. This is a public holiday, but the employer requires his employees to work on Easter Monday. However, if the employees take Easter Monday off, they are entitled only to be paid to their normal wage for the day. Therefore, the employer can say to them that he would like them to work on Easter Monday, without receiving double pay for working on that day, and they can take another day off on full pay in substitution for Easter Monday.
If the employee works on Easter Monday without exchanging it for another day, he gets 2 days paid for working Easter Monday. If the employee works on Easter Monday for a normal wage, and they take another day off on full pay, that also amounts to 2 day's pay. Therefore there is no loss to the employees, and there is no financial gain to the employer.
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