BCEA: A useful summary of rules regarding working hours

Did you know that several sections of the Basic Conditions of Employment Act [No. 75 of 1997] (BCEA) do not apply to employees earning above an annual earnings threshold? This is often referred to as the “Overtime Threshold” but it applies not only to overtime.

What is the annual earnings threshold in terms of the BCEA?

On 1 March 2023 the annual earnings threshold was increased to R241 110 per annum (R20 092 per month). This threshold is determined by the Minister of Employment & Labour and is gazetted annually.

What is the definition of Earnings?

Earnings in this context is defined as regular annual remuneration before deductions i.e. PAYE, retirement fund contributions, medical and similar deductions and excludes employer contributions for employee benefits such as retirement funding, medical aid etc. Earnings also excludes the payment of any subsistence and transport allowances, achievement awards (eg bonuses and commission) and payments for overtime worked.

What sections of the BCEA do not apply to employees earning above the threshold?

• Clause 9 – Ordinary hours of work
• Clause 10 – Overtime
• Clause 11 – Compressed working week
• Clause 12 – Averaging of hours of work
• Clause 14 – Meal Intervals
• Clause 15 – Daily and Weekly rest period
• Clause 16 – Pay for Work on Sundays
• Clause 17(2) – Night work, Shift allowance and transportation for night workers
• Clause 18(3) – Pay for work on a Public Holiday

This means that there is no limit in terms of legislation to the hours that employees who earn above the threshold can be required to work and there is no requirement to pay such an employee for overtime or work on Sundays and Public Holidays.  Needless to say, sensibility must still prevail to avoid burnout and ensure staff retention!

What limitations does the BCEA impose on employee’s earning below the threshold?

Here is a useful guide to the various rules surrounding working hours contained in the BCEA, applicable to companies with 10 employees or more and employees whose annual salaries are below the earnings threshold. (Remember that if employee contracts contain terms and conditions that are more favourable, the terms in employment contracts take precedence.)

Working Hours:

• The BCEA states that employers may expect employees to work up to a maximum of 45 ordinary working hours in a week (excluding meal breaks) as either:
  • 9 working hours a day over 5 days a week or
  • 8 working hours a day over 6 days a week.

Overtime

“Overtime” means the time that an employee works during a day or a week in excess of ordinary hours of work.

• Employers may agree with employees to work overtime.
  • Overtime is voluntary but if an employee agreed to work overtime in their original contract of employment, they cannot unreasonably refuse to do so, and the employer can take disciplinary action if the refusal is unreasonable.
  • An employee also cannot refuse to work overtime if the work which must be done is urgent and unforeseen and which cannot be performed by employees during the normal working day, such as the sudden breakdown of equipment.
  • Overtime may not exceed 10 hours per week.
  • Total working hours including overtime cannot exceed 12 hours in a day.
  • Overtime can be calculated as hours in excess of 45 hours in a week (or in excess of the standard hours in the employment contract if this is less than 45 hours).
  • Pay for overtime hours worked is calculated at 1.5 times the employee’s normal hourly pay rate for employees below the earnings threshold.
  • Note: An agreement to work overtime (i.e. in the employment contract) concluded with an employee when the employee commences employment, or during the first three months of employment, lapses after one year. The employer should issue an addendum to the employment contract that confirms the employee’s agreement to work overtime.

Meal Breaks

• Employers must provide a meal break
  • of at least 1 hour after 5 hours of work or may reduce this to 30 minutes by agreement with employees.
  • Or do away with the meal break completely if an employee works less than 6 hours per day.
  • Lunch breaks are unpaid, however employees who are required to remain on duty during their lunch break must be paid.

Daily and Weekly rest period

• Employers must provide a daily rest period of at least 12 hours between the employee stopping work and starting work the next day.
• There must be a weekly rest period of at least 36 consecutive hours (1.5 days), which must include a Sunday, unless otherwise agreed.
• Employers can do away with a 36 hour “weekend” and agree to 60-hour weekend (2.5 days) every 2 weeks.
• Alternatively, the ‘weekend’ can be shortened by up to 8 hours in one week and the hours added to the following weekend.

Sunday Work

• Employers can request that employees work on a Sunday. This can either be agreed with employees in their employment contracts that working on a Sunday is part of their normal working week or Sunday hours can be treated as overtime.
• If the employee does not normally work on a Sunday, employers will need to pay them 2x their hourly rate for every hour that they work.
• If the employee normally works on a Sunday, they still need to be paid at a higher rate (1.5x) for the Sunday hours. Alternatively, the employer can agree with their employees that they will be paid their normal rate for the day and give them time off on an hour-for-hour basis, i.e. if the employee is paid normal rates on a Sunday, they are entitled to a day off on normal pay.
• Note that in the case of employees who work night shifts, if the greater part of a shift falls on a Sunday, then the employer must treat the entire shift as a Sunday shift.

Compressed Working Week

If agreed, the BCEA permits an employee to work up to 12 hours in a day, including a meal break, without receiving overtime pay. Employees cannot then work on more than 5 days in a week, more than 45 hours in a week or more than 10 hours overtime.

For example, employees could work 3 shifts of 12 hours plus a shorter shift of 9 hours = 45 hours, or 4 Shifts of 12 hours including a 1 hour meal interval = 44 working hours + 4 hours meal interval

Night Shift

• Employers can agree with employees to work night shifts. This refers to work performed after 18h00 and before 06h00.
• Employers must pay night-shift employees a night-shift allowance (which is not specified) or reduce their working hours for the same amount of pay.
• Employers must ensure that transport is available for employees to and from work.
• If employees work at night (after 11pm) on a regular basis, the employer must inform them of any health and safety hazards associated with the work and pay for them to undergo a medical examination on request. “Regular” is defined as working for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year.

For more information or advice, contact the Human Alliance team on admin@humanalliance.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)