The Basic Conditions of Employment Act 75 of 1997 (BCEA) lays down conditions of employment regarded by legislature as fundamental. Although the Act does not itself prescribe a national minimum wage, it ensures that working hours do not exceed certain maxima, that employees are granted adequate breaks during the working day, that they are given prescribed annual and paid sick leave, that they are paid a premium for overtime and work on Sundays and Public Holidays, and that they are accorded other basic rights.


Under common law, parties were free to agree to whatever terms and conditions of employment they wished and were prepared to accept, within the limits only of the law, good morals and reasonableness.


The statute that now sets basic conditions for all employees is the BCEA. The Act expressly stipulates that its provisions constitute terms of any contract of employment, except to the extent that any other law or contract provides for more favourable conditions.


Chapter 2 of the Act (Regulation of Working Time) applies to all employees and employers, except:

  1. Members of the South African National Defence Force, National Intelligence Agency and the South African Secret Service;
  2. Unpaid Charity workers;
  3. Senior managerial employees;
  4. Salespersons who travel to the premises of customers and regulate their own hours of work;
  5. Those who work for less than 24hours a month; and
  6. Those earning more than the amount prescribed by the Minister (the current threshold is R205 433.30 per year, excluding amounts paid for overtime work)


As per section 9 of the BCEA, the maximum normal working time for an employee is 45 hours per week. This would mean a maximum of nine hours in any day if the employee works for five days or fewer in a week and eight hours in any day if the employee works on more than five days in a week.


This does not mean that the employee must work 45 hours per week normal time. The amount of normal time worked is a matter of contractual agreement between employer and employee. Some employees, for instance, only work a 40-hour week. The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time. Employees who earn above the determined threshold amount must negotiate the normal number of working hours per day or per week with the employer. The employee may, therefore, be expected to work more than 45 hours per week.


It must be taken into consideration that meal, and tea breaks are not included in the calculation of working hours and will, therefore, be unpaid. As meal breaks are unpaid, the employee can, for instance, read a book or go and do some shopping. An employee must be remunerated for a meal break that the employee was required to work or to be available for work. Further to this, the employee must be paid for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.


Therefore, an employee who works a 5 day week and who receives a meal break of one hour per day will actually be at the workplace for 50 hours weekly (45 hours normal working time plus 5 hours daily meal breaks). The meal break is to be provided after five hours of continuous working time. Tea breaks do not qualify as a break in working time. The statutory meal break is 1 hour, but by agreement between the employee and employer, this may be reduced to 30 minutes.


All work beyond that is overtime, which can be worked only with the employee’s consent, to be given annually if embodied in contract or collective agreement.


The maximum permissible overtime as per section 10 of the Basic Conditions of Employment Act is 10 hours in any 1 week. As per the definitions of the Act, a week means the period of seven days within which the working week of that employee ordinarily falls and a day, (a period of 24 hours) measured from the time when the employee normally commences work. Employees earning below the threshold must be paid 1.5 times the normal wage rate for overtime worked except for Sundays. Overtime on a Sunday must be remunerated at double the normal wage rate.


By agreement, the employer may allow an employee paid time off for overtime worked instead of paying the employee. The employee will then be entitled to 90 minutes paid time off for every 60 minutes overtime worked. The referred paid time off must be granted to the employee within one month after working the overtime, but by agreement, this period may be extended to 12 months.


Employers must also take into consideration that an agreement by the employee to work overtime that was reached during the first three months of employment, lapses after one year. The onus will, therefore, be on the employer to reconfirm the commitment of the employee to work overtime after a period of 12 months.


In addition to the duty to observe prescribed hours, employers are also required to regulate working hours in accordance with the Act governing occupational health and safety, with due regard to the health, safety and family responsibilities of its employees, and any relevant code of good practise issued by the Minister under the BCEA.


The above-mentioned regulations on working hours should be ever-present in the minds of employers as we move through the level-based easing of the lockdown regulations.


Employers will be trying their utmost best to reverse the losses caused by the lockdown and therefore might expect employees to work much longer hours.


Employers should thus be well aware of what they may and may not expect from their employees in this regard.


Article by:Arlene Jacobs

Dispute Resolution Official – Bloemfontein