Navigating Overtime: Employee Rights and Obligations

Navigating Overtime: Employee Rights and Obligations

Employment Advice, HR

Overtime worked is any time an employee works over and above their usual hours. Under South African labour law, overtime is voluntary, this means it should only be worked if both the employee and employer agree. The point at which overtime begins is contingent on the contracted normal work time of an individual employee. In South Africa contracted work hours and overtime are regulated by Chapter 2 of the Basic Conditions of Employment Act (BCEA).

What are the Basic Conditions of the South African Employment Act (BCEA)?

The BCEA is a legal framework that ensures minimum working standards and the protection of employee rights. It works in conjunction with the Labour Relations Act. Together they are intended to expand on the basic rights enshrined in the South African Constitution. And thereby better ensure the safety of a worker’s health, well-being, and rights. The BCEA and Labour Relations Act are flexible in that employers can offer better conditions than the prescribed minimum standards. The intention of these two Acts and South Africa’s Constitutional Rights are easily understood. However, in many instances, implementing them correctly requires the assistance of an employment and labour law specialist, such as Britney Theron.

What does the Law say about Overtime?

South African labour law stipulates that compensation for overtime worked is a non-negotiable for workers below a threshold. As of 1 April 2024, the threshold in effect is R234371,67 per annum (R21187,64 per month).

The maximum overtime that someone can work in one day is three hours or ten hours per week. This means that the maximum overtime hours per month in South Africa is set at 40 hours. However, regular and overtime hours may be averaged for up to four months if a collective agreement is pre-emptively reached.

Hours of Work and Overtime

A normal work week has a statutory regulation of 45 hours for a 5-day and 48 hours for a 6-day work week. This means regular working hours are no more than 9 hours a day for a 5-day week and 8 hours a day for a 6-day week. An employee may be employed for fewer hours, but anything more is deemed overtime. Notable is that lunch breaks are not included in statutory hours. They are regarded as unpaid time within a workday and how this time is spent is up to the employee. A standard lunch break is one hour; however, an employee may negotiate to have half an hour instead. Practically, this means an employee might be at work for up to 50 hours in a 5-day work week. Or 51 hours in a six-day work week.

Collective agreements can be entered into to increase overtime work to 15 hours per week. Nevertheless, according to the BCEA, this agreement can only stand for up to 2 months a year.

Due to the increased health risks associated with working at night, those who work at night are entitled to compensation. This can be in the form of additional remuneration per hour or working fewer hours for the same pay.

How is Overtime Worked Out?

Remuneration for overtime worked is 1.5x an employee’s normal wage rate. However, remuneration for time worked on Sundays and public holidays is twice an employee’s normal wage rate. If an employee usually works on a Sunday, then time worked on Sundays is not regarded as overtime.

What does Time off in lieu of Overtime mean?

An alternative to paid overtime is time off. This is where, instead of remuneration, an employee receives paid time off. Two things are notable concerning time off as compensation for overtime worked. Firstly, the amount of time off is calculated in the same way that remuneration for overtime is. Thus, at a rate of 1.5 per hour of overtime worked for days of a normal work week and twice that for Sundays and public holidays. Likewise, if a Sunday is part of an employee’s usual work week, then it isn’t regarded as overtime.

Who Doesn’t Qualify for Paid Overtime?

While overtime is regulated by the BCEA, it does not apply to the following categories of employees:

  • Senior Management.
  • Traveling sales staff.
  • Employees who work flexi-hours (self-regulate working hours).
  • Those delivering emergency services or doing emergency work.
  • Anyone employed for less than 24 hours per month.

 

People who earn above the BCEA threshold are not subject to the provisions it sets out in Chapter 2. Accordingly, they cannot demand time off or monetary compensation. However, they also cannot be forced to work more hours than a statutory work week. Therefore, employers are obligated to discuss overtime requirements and negotiate possible compensation with above-threshold employees. Note that above-threshold employees often have clauses in their employment contracts which relate to overtime requirements or expectations.

Is Forced Overtime Legal in South Africa?

Forced overtime arises when an employee is coerced into working longer hours than they are contractually obligated to. In South Africa, it is illegal to force someone to work. Thus, unless there is a binding agreement with their employer, an employer can refuse to work overtime without the risk of being fired. Notable is that, according to Section 10 (5) of the BCEA, overtime agreements need to be renewed annually.

Overtime on Short Notice

Employees are allowed to refuse to work overtime if they are given short notice. However, there are specific circumstances where an employee may not refuse to work. Within these circumstances, the requirement to work is not regarded as forced overtime. For example, where work must be done immediately and the employer could not have reasonably anticipated the situation. Additionally, the work required is such that it cannot be carried out / completed during regular working hours.

Advantages of an Employer of Record Services

In South Africa labour law can be tricky to navigate. This is why many companies engage an Employer of Record (EOR) service. A reputable EOR service helps ensure they remain within the country’s legal requirements and maintain a fair working environment for their labour force. Contact the Key Recruitment Group today to find out how we can assist and support your company.

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