Overworked and Underpaid

Yasmina Griesel  

SchoemanLaw Inc

Category: Labour Law 

The Basic Conditions of Employment Act 75 of 1997 (“the Act”) governs the timeframes that employees earning under the earning threshold can be expected to work, excluding employees who work less than 24 hours a month for an employer, senior managers, salespersons who manage their own working hours. 

WHAT IS THE EARNING THRESHOLD AND WHAT DOES THIS MEAN IN TERMS OF WORKING HOURS? 

The working hours for employees earning above the set threshold are regulated differently from employees earning below the set threshold. Only employees earning under the threshold are afforded protection and benefits under sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the Act. 

Section 6 of the Act confers onto the Minister of Labour the powers to establish and publish an earning threshold. As of 1 March 2022, the earning threshold was increased from R211 596.00 to R224 080,30 (R18 673,35 per month). 

WHAT ARE THE ORDINARY WORKING HOURS? 

Section 9 of the Act sets out that an employee cannot be required to work over 45 hours in a week. If an employee works for 5 days or less, they are not required to work more than 9 hours a day. If the employee works for more than 5 days a week, they are not required to work for more than 8 hours a day. This framework is an indication of the maximum time that an employee can be expected to work, but it can be the case that the employment contract will require an employee to work for fewer hours than the prescribed 45 hours. Normal working hours may be extended by 15 minutes per day or 60 minutes per week if the employee is a public servant. 

Meal intervals are not included in the abovementioned working hours unless the employee works during their lunch break. 

OVERTIME COMPENSATION 

An employee earning under the threshold may agree to work up to 12 hours a day without getting paid overtime, but his or her weekly hours must remain under 45 hours (about 2 days) as anything over this time is effective “overtime”. 

Section 10 of the Act states that an employee cannot exceed 10 hours overtime a week. For any work performed overtime from Mondays to Saturdays, the employee must be compensated 150% (1.5 times) of his or her hourly wages. For any work performed overtime on Sundays, the employee is entitled to 200% (2 times) his or her hourly wages, unless he or she ordinarily carries out their duty on Sundays. 

Employees may alternatively enter into an agreement with his or her employer to receive paid time off instead of being compensated for their overtime. An employee is allowed 90 minutes off for every hour worked overtime, which the employer must grant to the employee within 1 month of the employee being entitled to it. This period could be extended to 12 months, however, the agreement elapses after a year (when the employee agrees to work overtime during the first three months). 

CONCLUSION 

Section 48 of the Act prohibits forced labour and an employee earning under the threshold has no obligation to work overtime, and they similarly have the right to refuse overtime work on short notice except when the work carried must be attended to without delay because of circumstances that the employer could not have reasonably foreseen. Should it become necessary for any such employee to work overtime, the employer should try to engage the employee to discuss an agreement for compensation for the overtime. 

Contact an attorney at SchoemanLaw for your legal needs by visiting our website at www.schoemanlaw.co.za 

Yasmina Griesel | SchoemanLaw IncCandidate Attorneywww.schoemanlaw.co.za