Section 14 of the BCEA (Basic Conditions of Employment Act) stipulates as follows:
- An Employer must give an Employee who works continuously for more than five (5) hours a meal interval of at least one (1) continuous hour.
- During a meal interval, an Employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another Employee.
- An Employee must be remunerated:
- For a meal interval in which the Employee is required to work or is required to be available for work or is available for work; and
- For any portion of a meal interval that is in excess of seventy-five (75) minutes unless an Employee lives on the premises at which the workplace is situated.
- For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least sixty (60) minutes.
- An agreement in writing may:
- Reduce the meal interval to not less than thirty (30) minutes;
- Dispense with a meal interval for an Employee who works fewer than six (6) hours.
In the case of Vector Logistics (Pty) Ltd v National Transport Movement and Others (LC) (unreported case no 12876/17,6-3-2018), the Trade Union (NTM), acting on behalf of its members, referred a dispute to the CCMA (Commission for Conciliation Mediation and Arbitration) demanding that its members be paid ten (10) hours per day. The Employees worked nine (9) hours a day and had an unpaid one (1) hour lunch break per day. The Trade Union alleged that its members worked throughout their lunch breaks and thus should be paid an extra one (1) hour every day. Parties could not settle their dispute at Conciliation, and the Employees thus embarked on strike action.
The Employer approached the Court on an urgent basis for an order declaring any strike action pursuant to the demand – unprotected, and interim relief was granted.
On the return date, the Employer argued that the rule should be confirmed for the following reasons:
- There was a collective agreement governing the issue in dispute, which prevented the Trade Union from embarking on strike action;
- The demand itself was unlawful; and
- The nature of the dispute was one that could be referred for Arbitration which, in turn, prevented the Trade Union from embarking on strike action.
In 2015, the same Employer and another Trade Union, The National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAWU), concluded a three-year wage agreement ending June 2018. In terms of this agreement, specific categories of Employees would work forty-five (45) hours per week and take a one (1) hour unpaid lunch break daily. This agreement extended to NTM’s members.
The Court found that NTM was bound by its own agreement with the Employer, as it was accepted that they were not the majority Union and hence could not be recognised for purposes of bargaining and agreed not to strike over matters governed by a collective agreement.
In this instance, the issue of working hours and meal intervals was addressed in the collective agreement, and this prevented NTM from striking over the meal interval dispute.
CEO members are advised to address aspects of meal intervals in writing through a contract of employment, alternatively by a collective agreement.
Article By: Siliziwe Rumbu
Dispute Resolution Official – CEO East London