The Regulation of Working Time

It seems there are large numbers of employers who do not understand the situation with regard to the earnings threshold of R149 763 -00 declared by the Minister of Labour on 14^th March 2003, in relation to normal working hour and overtime.

The Ministerial Determination states that employees earning in excess of R115572-00 per annum are excluded from the provisions of sections 9 to 17, and 18(3) of the BCEA. This includes the sections dealing with ordinary hours of work and overtime – and employers interpret this exclusion to mean that such employees can be forced to work whatever normal hours and whatever overtime hours the employer demands, without any compensation.

This is a complete misapprehension, which will surely land the employer in hot water. No employee can be forced to work overtime – not even employees earning below the threshold amount. This is simply because, in terms of section 48 of the BCEA, forced labour is prohibited. The position is that a employee who earns less R149 763-00 per year has a legal entitlement to not work more than 12 hours in any one day, made up of nine hours normal time and three hours overtime.

An employee who earns more than R149 763 -00 per year must negotiate his normal working hours or maximum daily working hours with his employer. For all employees, irrespective of earnings or job title, overtime may only be worked by agreement between employer and employee. For employees earning less than R149 763 -00 per year, there is a legal entitlement to be paid for overtime or to be granted paid time off in lieu of cash payment. The time off must be at the same ratio as the cash payment. i.e. 1,5 times or double time as the case may be.

For employees earning more than R149 763-00 per year, there is no legal entitlement to be paid for overtime or to be compensated with time off. However, the employer also cannot force such employees to work overtime without payment or without compensation. 

This therefore means that any overtime required to be worked by such employees can firstly only be worked if the employer and the employee agree that the overtime will be worked, and secondly the matter of compensation must be negotiated and agreed to between employer and employee.

Should the employer refuse to compensate the employee, and as often happens, demand that the employee work overtime without payment or without compensation because the employee holds the position of a senior manager or earns in excess of R115572-00 per year, then the employee as the right to refuse to work the overtime.

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