The Potential Conflict Between The Definition Of Employee And The Four Day Work Week

By Johan De Lange | SchoemanLaw Inc. 

Category: Labour Law 

Introduction

The four-day workweek has recently become a topic of debate as a potential solution to the burnout epidemic due to the covid-19 pandemic. The cause is for various factors, but it has brought to light the importance of employee wellness and the need for work-life balance in the modern age of constant connectivity. In this article, the definition of an employee under the Basic Conditions of Employment Act1 (“BCEA”) and the concept of a four-day workweek and how these two factors can interact to shape the employment relationship in South Africa will be explored.  

Employee n terms of the BCEA 

The BCEA is a piece of legislation that sets out the minimum employment standards in South Africa, including the definition of an employee and the regulation of working hours. According to Section 1 of the BCEA, an employee is defined as “any person who works for another person or for an employing entity and who receives or is entitled to receive any payment on money or in kind.” This definition does not specify a minimum number of hours an individual must work to be considered an employee. However, the act does set out the minimum working hours for full-time employees, which are 45 hours per week, excluding meal breaks. Part-time employees must work at least 15 hours per week, excluding meal breaks.  

Conflict with the BCEA 

In light of the above, the concept of a four-day workweek is a flexible working arrangement that can be applied to all employees, regardless of their full-time or part-time status. In a four-day work week, an employee is expected to work four days per week instead of five, but the hours worked during each of those days may be longer to compensate for the shorter work week. The BCEA makes provision, in Section 9, for the increased hours of an employee should they work less than five days a week; therefore, such an arrangement would be achievable. However, the conflict arises when an employee works less than 45 hours weekly as they will no longer be considered a full-time employee. The employee thereby risks losing certain benefits that come with being categorized as a full-time employee. It must also be noted that these potential implications can be circumvented through the employment contract itself. The courts have, in certain circumstances, allowed employers and employees to deviate from the statutory requirements.  

In Gbenga-Oluwatoya v Rickett Benckiser SA (Pty) Ltd & Another2, the Constitutional Court had to consider whether a mutual agreement restricting an employee's right to approach the CCMA was permissible. The court found that due to the relatively equal bargaining power between the parties in the instance of the above case, the deviation was permissible. Therefore, it is clear that the court will allow deviation in certain instances. A deviation from the BCEA, which is more to the employee's benefit, would likely be condoned by the courts and, as such, still, afford employees the same protection.  

Conclusion  

Therefore, implementing a four-day workweek is challenging. Besides the potential conflict with the act, there are also concerns about the impact on the productivity and output of employees under such an arrangement. Although an employer needs to consider the well-being of its employees, it must always be abreast of its decisions' legal impact. Therefore, an employer should always consult an attorney to help it navigate the legislative implications and requirements of any working arrangement, including the regulation of certain employee benefits and the potential implementation of a four-day workweek.  

Johan De Lange | SchoemanLaw Inc Attorneyhttps://schoemanlaw.co.za/our-services/employment-law/