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Overtime in practice

By Nicolene Erasmus

 

Under section 10(2) of the Basic Conditions of Employment Act (BCEA) it is mandatory to make overtime payment to an employee who earns less than the threshold of R205 433.30 per annum and who works overtime.

 

Employees who were previously excluded, but now earn below the new threshold are automatically entitled to be paid overtime.  On the other hand, an employee earning above the threshold may be excluded from statutory overtime, but may have a claim for overtime in terms of an employment contract.

 

Employees who earn more than R205 433.30 per annum senior managerial employees, employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work and employees who work less than 24 hours a month for an employer do not enjoy the protection offered by certain sections (e.g., ordinary hours of work, overtime etc) of the BCEA.

 

Employees in these categories who work overtime should be compensated at the normal rate/wage for the extra hours worked.  In the absence of an agreement to work beyond the hours stipulated in the contract of employment, these employees may refer the employer to the contract of employment, and refuse to work the additional hours or overtime.

 

If the contract stipulates that the employee may be required to work overtime as and when required, the employee is advised to negotiate with the employer in order to reach an agreement.  A blatant refusal may lead to disciplinary action - especially if the instruction to work overtime is not unreasonable.

 

For those employees earning less than R205 433.30 per annum, overtime starts once the employee has completed the ordinary hours of work.  Hours in excess of either 8 or 9 per day, depending on the days worked in a week, are overtime hours and should be compensated accordingly.

 

Section 9 of the BCEA provides for ordinary hours of work and states that an employer may not require or permit an employee to work more than:

(a)        45 hours in any week; and

(b)       nine hours in any day if the employee works for five days or fewer in a week; or

(c)       eight hours in any day if the employee works on more than five days in a week.

 

The phrase may not require or permit an employee to work... means that employers cannot force employees to work overtime.  An employer may not require or permit an employee to work overtime except in accordance with an agreement.  Employees therefore have to agree to work overtime, and may not agree to work overtime in excess of the maximum hours stated in the BCEA.

 

Where an employee is contractually bound to work e.g., 40 hours per week, overtime starts with the 41st hour.

 

Any argument (or agreement) that employees should first fill or complete the first 45 hours per week (or 195 hours per month) before overtime will be paid is invalid. Technically, an employee who has worked only 10 hours in one week may be entitled to overtime payment.

 

The following could serve as an example:   employee A who normally works a 6-day workweek, goes to work on Monday, works 10 hours and goes home.  That evening the employee falls ill and stays away from work for the rest of the week.

 

The employee has not yet completed a 45-hour workweek, but since this employee may not work more than 8 ordinary hours in any day, the employee is entitled to 2 hours of overtime payment at a rate of at least 1.5 times the employees wage.

 

Section 10 of the BCEA limits the overtime worked by an employee to a maximum of 12 hours per day, and 10 hours per week.  If an employer requires an employee who works 6 days in a week (and therefore 8 ordinary hours per day) to work 12 hours per day for 3 days, the employer is contravening the provisions of the BCEA.

 

The employee works 12 hours overtime, which is in excess of the 10 hours that the BCEA prescribes.   An employer may, by agreement, compensate the employee for the overtime worked at the prescribed rate of:

(a)       1.5 times the normal wage; or

(b)       pay the normal wage and grant 30 minutes time off (on full pay);  or

(c)       grant the employee at least 90 minutes time off for each hour of overtime worked.

 

An employer must grant paid time off within one month of the employee becoming entitled to it.

 

It is important to note that an agreement (to work overtime) between an employer and an individual employee lapses after one year if it was concluded at the commencement of, or within the first three months of employment.

 

In the absence of a renewal of such an agreement, employees may refuse to work overtime.  In the matter of Khumalo / ARP Refrigeration Manufacturing [2008] 4 BALR 332 (MEIBC) the employee was informed that he would have to work overtime the next day, which he did not do.

 

The question that the commissioner needed to answer was whether it was lawful to instruct, if at all, the employee to work overtime.

 

The commissioner held that the only evidence that was presented was that of refusing to carry on working beyond the normal stipulated hours ie overtime. This is where the distinction is compared with a refusal to carry out a valid and reasonable instruction. To this extent therefore, the question that needs to be answered is whether it was lawful to instruct, if at all, the employee to work overtime.

 

Clause 5 at 36 of the bundle (the contract of employment) makes the provision that overtime will be subject to the basic conditions of employment. The difficulty with it is the obligation factored into it. It cannot be an obligation while, at the same time, subject to the BCEA. Section 10(1) of the BCEA stipulates that:

an employer may not require or permit an employee to (a) work overtime except in accordance with an agreement; and (b) more than 10 hours overtime a week.

 

A contract of employment constitutes an agreement between the applicant and the respondent. In this case, clause 5 is this agreement. However, section 5 of the same Act provides that:

An agreement concluded in terms of section (1) with an employee when the employee commences employment or during the first three months of employment lapses after one year.

 

The applicant in this case commenced work on 29 July 2002. It is therefore by far over a year. The instruction allegedly given by Michael Mosikidi was therefore unlawful.

 

There was no evidence presented to show that this agreement was renewed by the parties. This situation creates a problem of enforcement.

 

The applicant's testimony was that he could not work overtime on that day because of a funeral he had to attend. On this ground alone, the applicant cannot be found guilty. He is indeed protected by the BCEA, in particular section 5.

 

The employer was ordered to reinstate the employee.

For more information please contact Nicolene Erasmus at [email protected]  

 

 

 

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

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