There is a difference between certain employees. The Basic Conditions of Employment Act applies to all employers and workers, but not to:
- Members of the –
- National Defence Force,
- National Intelligence Agency, or
- South African Secret Service; or
- Unpaid volunteers working for charity.
The section of the Act that regulates working hours does not apply to:
- workers in senior management (a senior manager is regarded as an employee who has the authority to appoint and dismiss employees, as well as to represent the employer both internally and externally)
- sales staff who travel and regulate their own working hours
- workers who work less than 24 hours in a month
- workers who earn in excess of an amount stated in terms of section 6 (3) of the Act (presently R183 008-00 per annum)
- workers engaged in emergency work are excluded from certain provisions.
Agreement to work overtime
· Overtime may only be worked by agreement between employer and employee. Such agreement does not have to be in writing, but in order to avoid disputes it is advisable to record such agreement in writing.
· The employee has the legal right and entitlement to demand payment for overtime worked at the rate of 1,5 times his normal wage rate, or at whatever rate is applicable (not less favourable than the minimum set in the Act).
· The employee can also enter into an agreement with the employer whereby he can be given time off work instead of payment for overtime worked.
· Generally, the employee can legally refuse to work more than 45 hours per week normal time and he can legally refuse to work more than 10 hours per week overtime and he can legally refuse to work more than 12 hours in any one day, consisting of nine hours normal time and three hours overtime. There are some circumstances where the employee may not be able to refuse, such as in emergency overtime.
· The contract of employment may contain an agreement to work overtime if the need arises. If an employee refuses to work agreed overtime, it amounts to a breach of contract and disciplinary action can be taken against the employee (as a refusal to work agreed overtime amounts to misconduct.
· If employees collectively refuse to work agreed overtime it amounts to industrial action and the relevant provisions pertaining to strike law would apply. (Note: Some Bargaining Council Agreements may contain specific provisions that regulate overtime in a particular industry or sector);
· Section 6 of the BCEA provides that the normal requirement that overtime must be by agreement does not apply in cases where “work is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work”. If these circumstances exist and employees refuse to work overtime they may be subjected to disciplinary action.
Overtime work and work on Sundays are not, however, unlimited for senior managers. Section 48 of the Basic Conditions of Employment Act prohibits forced labour. The employer cannot, therefore, force the employee to do any labour. The merits of the case will determine if the required labour is in fact forced labour.
A senior manager needs to realise that s/he may be expected to work overtime without payment, provided that it does not constitute forced labour. This is because his/her remuneration package already makes provision for overtime and also because the Act excludes him/her from the required payment for overtime and for work on Sundays.