The regulation of working hours is contained in Chapter two of the Basic Conditions of Employment Act. In terms of Section 6 of the Act, these regulations do not apply to employees who:
- earn above the threshold, which is R211 596.30 per annum;
- senior managerial employees;
- employees who are sales staff who travel to customers and regulate their own hours of work; and
- employees who work less than twenty-four hours per month for an employer.
The amount of normal working hours that an employee is required to work is a matter of contractual agreement between the employer and employee. However, Section 9 of the Basic Conditions of Employment Act makes provision for the maximum amount of normal working time for employees at forty-five hours per week, broken down to nine hours per day if the employee works a five-day week; or eight hours per day if the employee works more than five days per week.
Hours worked by the employee exceeding the maximum forty-five hours per week is deemed to be overtime. Section 10 of the Basic Conditions of Employment Act states that any overtime worked must be in accordance with an agreement, and the maximum overtime an employee can work is ten hours in one week. For these overtime hours, employees must be paid 1.5 times their normal wage rate, except for overtime worked on Sundays. Overtime worked on a Sunday or Public Holiday must be remunerated at double the normal wage rate.
By agreement, instead of paying the employee for overtime worked, the employer may allow the employee paid time off. The employee will then be entitled to ninety minutes of paid time off for every sixty minutes of overtime worked, within one month after working the overtime, this one month can be extended by agreement between the parties.
An employee can refuse to work overtime on short notice unless there is a contractual agreement where the employee agreed to be available for overtime at short notice.
It is important for employers to take note of Section 10(5) of the Basic Conditions of Employment Act, which states that an agreement in respect of overtime concluded with an employee, when the employee commences employment, or within the first three months of employment, lapses after one year. If the employer fails to renew such an agreement, the employee may refuse to work overtime.
In the Bargaining Council matter of Khumalo v ARP Refrigeration Manufacturing  4 BALR 332 (MEIBC), the employer had dismissed the employee for insubordination in that he refused to work overtime. The employee worked for the employer as a grinder for five years. The employee was ordered to work overtime but refused, for personal reasons as he had to attend a funeral. The Commissioner had to rule on whether the instruction to work overtime was a lawful one. The employee signed a contract at commencement of employment which provided that overtime will be subject to the Basic Conditions of Employment Act, taking this into consideration and since the contract was entered into five years ago, the Commissioner found that the agreement contained in the contract of employment had not been renewed and as a result, the instruction to work overtime had been unlawful. The Commissioner further held that the dismissal was unfair and ordered that the employee be reinstated in addition to the payment of one month’s salary.
In conclusion, it is important for employers to renew agreements to work overtime. This can be done by way of an annual “overtime policy” entered into between the employer and employee whereby the employee agrees to work overtime, thus protecting the employer against possible consequences should an employee refuse to work overtime.
Article by: Shannen Brown
Dispute Resolution Official – Port Elizabeth