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Public Holidays: Useful Information

André Claassen

 

Public holidays – Section 18 – Basic Conditions of Employments Act

(1) An employer may not require an employee to work on a public holiday except in accordance with an agreement.



(2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay –

(a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily ... have received for work on that day;
(b) an employee who does work on the public holiday--
(i) at least double the amount referred to in paragraph (a); or
(ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.



(3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to--
(a) the employee's ordinary daily wage; plus
(b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.



(4) An employer must pay an employee for a public holiday on the employee's usual pay day.



(5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.



Commentary – Explanation
The important thing to note is that an employee only works on a public holiday if he agrees to work it. If the public holiday happens to be the employee's normal shift, then that the employee is entitled to be paid a minimum of double his normal wage rate for the day. If he does work on the public holiday, and his normal wage rate plus his wage for the time worked totals more than double his normal wage rate, then he must be paid the higher of the two, if he does not work on that public holiday, he is entitled to be paid his normal wage rate for the day.



If the employee does work on the public holiday, and it is not a day on which he would normally work, the employer must pay that employee a minimum of his ordinary daily wage rate, plus the amount earned by the employee for the work done on that day. Any payment for public holiday work must be made on the employee's usual payday.



With night shift workers, part of the work may be done on an ordinary day and part on a public holiday (after midnight). The whole shift will be deemed to be worked on the public holiday, except if the hours worked before midnight are greater than the hours worked after midnight.



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 R205 433-30 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. There is one more matter to be cleared up regarding public holidays, and that is the issue of the situation where a public holiday falls on a Sunday, and the following Monday is declared a public holiday.



Our source of reference on the subject is case number JR 1218/05, held in the Labour Court, Johannesburg, between Randfontein Estates Ltd v National Union of Mineworkers. Randfontein Estates sought an order declaring that where a public holiday falls on a Sunday, then the following Monday shall be a public holiday in substitution for, or instead of, the public holiday on the Sunday.


The question of payment for public holidays in the above circumstances also arose. Firstly, the question of - is it one public holiday or two public holidays? - was addressed.


The court ruled that the provisions of the Public Holidays Act are quite clear. The act states that “the days mentioned in schedule 1 shall be public holidays, and whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday.” The act goes further to define a public holiday as “ "the days mentioned in schedule 1 and any other day declared to be a public holiday under section 2K”



From the above, and without going into verbatim detail of the judgement, the Court found that the Monday is a public holiday additional to the public holiday on the Sunday. Some of the rationale was based on the fact that, for example, if Christmas Day falls on a Sunday, Christians do not transfer their celebrations to the Monday.



They will still celebrate Christmas on the Sunday, and the same applies to other public holidays such as Human Rights Day, Workers Day etc. In other words, the judgement stated “a date determined to be a public holiday does not change its character merely because it falls on a Sunday. It remains a public holiday.”


Thus the answer is: if a public holiday falls on a Sunday, then the following Monday is a public holiday, and there are thus 2 public holidays - namely the Sunday and Monday. Now to the question of payment - is an employee entitled to have both days off on full pay, thus getting a double benefit by being paid for two days off?


The judgement stated that the rationale behind section 2(1) of the Public Holidays Act (that both the Sunday and the Monday are public holidays) is to ensure that employees, who do not normally work on a Sunday, such as office staff, bank employees, or employees in any other organisation that is not open for trading on a Sunday, do not lose out on the benefit of having a day or for work on full pay - those employees have the Monday off on full pay as a public holiday.



Thus, those employees get paid only for one public holiday and not for two public holidays. Those employees would only get paid for two public holidays if they happened to work on the Sunday. In other words, the benefit of a day off on full pay, for those employees, is transferred from the Sunday to the Monday. The benefit of the Monday is not in addition to the benefit of the Sunday - it is in substitution for the benefit of the Sunday. Note that it is only the benefit (of payment) that is transferred - not the public holiday itself.



For employees who ordinarily do work on a Sunday, the transfer of the benefit to the Monday is not required. The reason is that these employees, who ordinarily work on Sundays, will get a double pay for working on the Sunday public holiday. Therefore, they have received the benefit.



Similarly, such employees are entitled to the Sunday off on full pay, because it is a public holiday - they can therefore exercise that option, thus still receiving the benefit. If such employees were allowed an additional public holiday on the Monday, it would mean that they would get a double benefit in that they would receive 2 paid days off work, and not 1 paid day off work. The judgement therefore ruled that employees are entitled to payment for only one public holiday.

 

It seems that the most common question is - why should an employee gets paid for 2 public holidays? In order to try and clarify the situation, I am going to quote again from case number JR 1218/05, held in the Labour Court, Johannesburg, between Randfontein Estates Ltd v National Union of Mineworkers. Firstly - the question: when a public holiday falls on a Sunday, why is the Monday also a public holiday? For the answer, we are referred to the Public Holidays Act – Act 36 of 1994, section 2(1) (the act)
The applicant in the above case (Randfontein Estates) contended that section 2 (1) of the act, which states that whenever a public holiday falls on a Sunday, the following Monday is also a public holiday, should be interpreted to mean that the public holiday on the Monday is declared in substitution for, or instead of, the public holiday on the Sunday. In my view, the contention of the applicant is quite clear and needs no further explanation.



Judge J Francis stated that the rationale for section 2 (1) - stating that when a public holiday falls on a Sunday, the following Monday shall be a public holiday - is that employees who do not ordinarily work on a Sunday would lose out on the benefit of having a day off work on full pay. In other words, those employees are off on a Sunday anyway - for which they do not get paid - and therefore the benefit of a public holiday on a Sunday is lost to them. They thus get the benefit on the Monday, which would otherwise have been a normal working day for them. Therefore, with the Monday automatically being a public holiday, those employees can have the Monday off on full pay.


Judge Francis stated further in his judgement that “the transfer of this benefit to the following day is not required in the case of employees who ordinarily work on a Sunday, since if the Sunday is treated as the public holiday; the workers obtain the benefit of being off work on full pay on the Sunday. Allowing such employees an additional public holiday on the Monday would be to provide them with a double benefit, in that they would then receive 2, and not 1, paid days off work.”
This would clearly imply that employees who ordinarily work on a Sunday - but have the Sunday off on full pay because it is a public holiday - cannot also claim a public holiday on the Monday, and cannot claim double pay for working on the Monday. That is my interpretation of this - which I think is logical.



However, this leaves us hanging in mid-air on the question - what happens with an employee who ordinarily works on a Sunday, does in fact work on the Sunday (which is a public holiday) and also works on the Monday (which is a public holiday. Does he get double pay for both days?



It has been established above if he takes the Sunday off, then he receives the benefit of one day off with full pay - and therefore the benefit is not, in addition, also transferred to the Monday. The Judge stated further that “the resolution of this dispute depends on whether section 2(1) of the act, properly interpreted, means that the Monday is substituted for the holiday on the preceding Sunday or whether the public holiday on the Monday is in addition to the public holiday on the Sunday. The answer to this question depends on the interpretation of the section of the act in question.”


The Judge went on to say “section 2 (1) consists of a primary (main) clause and a subordinate clause. The primary (main) clause is ‘the days mentioned in schedule 1 shall be public holidays’, and the subordinate clause is ‘and when ever any public holidays falls on a Sunday, the following Monday shall be a public holiday.” The judgement went further to state that the subordinate clause stands as an additional and distinct clause from the primary (main) clause, and is not a qualifying clause, or instead of, the primary (main) clause.



Section 1 (1) of the act defines the phrase “public holidays” to mean ‘ the days mentioned in schedule 1 and any other day declared to be a public holiday under section 2K”. This indicates that a date determined to be a public holiday does not change its character merely because it falls on a Sunday. It remains a public holiday. The Monday succeeding the public holiday on the Sunday is added to the list of public holidays - it is not instead of or in substitution for any public holiday on the list of public holidays.
As examples, if Workers Day falls on a Sunday, the celebrations for Workers Day will be held on the Sunday - those celebrations will not be transferred to the Monday, even though the Monday is a public holiday. The same would apply to Human Rights Day - if it falls on a Sunday, the celebrations will be held on the Sunday and not on the Monday even though the Monday is also a public holiday.


The judgement continued to state that, in section 2 (1) it was the intention of the Legislature to declare the Monday as a public holiday if a public holiday fell on a Sunday. A public holiday falling on a Sunday does not cease to be a public holiday. All that happens is that the following Monday automatically becomes a public holiday.



There is no specific clarification in the judgement regarding when an employee who works on both the Sunday and the Monday is entitled to be paid for 2 public holidays. Further, in terms of the judgement, if an employee takes the Sunday off on full pay, then he cannot also claim to take the Monday off on full pay because he has already received the benefit of the public holiday.



Similarly, if an employee works on the public holiday on the Sunday, he will receive double pay for the day. He cannot then also claim to take the Monday off on full pay, because he has already received the benefit of the public holiday on the Sunday. He also cannot then also claim a double pay for working on the Monday.

 

 

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