Although this seemed like very basic knowledge to me, the more people I spoke with, the more I came to realise that there are misinterpretations, misconceptions and just incorrect practices happening at (I dare say) 95% of businesses out there. I was a bit alarmed at this, since it must have been incorrectly implemented or applied by somebody like a previous labour consulting firm or the in-house HR & Payroll person, based on limited knowledge of the law, or worse, a want to gain favour with the employees – and this sadly came at the expense of the company.

And so, I have decided to do a short series over the next few weeks to cover the more commonly used sections of the Basic Conditions of Employment Act (BCEA) and indicate what the law says exactly and what I deem to be the correct interpretation and use of these sections. It is to be noted that there are several other industries and sectors who all have their own set of rules regarding these, however, the basic principles remain the same and accordingly do I address the general company and not those industries who are regulated by Bargaining Councils and/or a Main – or Collective Agreement, for example Construction; Mining; Private Security; Motor, Metal and Engineering; Private Cleaning; Retail and Wholesale etc.

To start off, I should mention that the BCEA is divided into 11 Chapters with following Schedules.

My intention is not to cover all of these as some of it is not of much interest to most business owners, like where it speaks to things like “Minister’s power to add and change footnotes”, “Jurisdiction of Labour Court” and “Establishment and functions of Employment Conditions Commission” etc, which I personally have never needed to advise on.

For today’s article do I focus on certain sections contained within Chapter 1 and 2 only.

Chapter 1 includes:

1. Definitions

2. Purpose of this Act

3. Application of this Act

4. Inclusion of provisions in contracts of employment

5. This Act not affected by agreements

There is nothing I would specifically like to mention or point out on Chapter 1 out as any comments on these sections would be pointing out the obvious, or alternatively the exceptions, which is not the purpose of this article as I am going to deal more with the general application of the BCEA rather than the exceptions.

Chapter 2 includes:

6. Application of this Chapter

7. Regulation of working time

8. Interpretation of day

9. Ordinary hours of work

10. Overtime

11. Compressed working week

12. Averaging of hours of work

13. Determination of hours of work by Minister

14. Meal intervals

15. Daily and weekly rest period

16. Pay for work on Sundays

17. Night work

18. Public holidays

This is the part where things become a bit more interesting and you will see from the flow of the sections (above) that 1 discussion point will be followed by the next i.e., ordinary working hours and how much you are allowed to work, followed by overtime which is when you are required to work more than the prescribed ordinary working hours, how much overtime you can be allowed to work and how those hours worked should be remunerated by the employer etc.

First thing would be to establish whom these sections apply to or not.

Section 6 of the BCEA says that.

(1) This Chapter, except section 7 (Regulation of working time), does not apply to–

(a) senior managerial employees (those who can hire, discipline and dismiss workers)

(b) employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work.

(c) employees who work less than 24 hours a month for an employer.

(2) Sections 9 (Ordinary hours of work), 10.1, (Overtime) 14( I) (Meal intervals), 15(1) (Daily and weekly rest periods), 17(2) (Night work) and 18(1) (Public Holidays) do not apply to work which 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.

(3) The Minister must on the advice of the Commission make a determination that excludes the application of this (whole) Chapter or any provision of it to any category of employees earning in excess of an amount stated in that determination.

• From 1 March 2023, the annual earnings threshold for the BCEA has been set to R241 110.59 a year, or approximately R20,092 a month. Anyone earning above this threshold would not be held to the prescripts of the BCEA, including work hours. This would then be something that needs to be negotiated with employers when setting up contracts, however due to the amount the employee earns and the likeliness of the position not requiring constant supervision, certain sections of the BCEA would no longer apply to those employees.
• It is to be noted that certain sections do still apply, and employers cannot pay their employees more than the prescribed threshold and then expect them to work like slaves. This would be exploiting the employees and law and there are limitations and recourse to this of course.

Section 7 – REGULATION OF WORKING TIME

This section in short just says that every employer must regulate the working time of each employee in accordance with the provisions of any Act governing occupational health and safety, with due regard to the health and safety of employees, with due regard to the Code of Good Practice on the Regulation of Working Times issued under section 87(1 )(a) and (d) with due regard to the family responsibilities of employees.

Section 8 – INTERPRETATION OF DAY

This section indicates that for the purposes of sections 9. 10 and 11. “day’” means a period of 24 hours measured from the time when the employee normally commences work. i.e., should the employee start work at 8h00, this would mean that a “day” would be from 8h00 to 8h00 the following day. Nothing too complicated with this.

Section 9 – ORDINARY HOURS OF WORK (This is where things get a little less boring)

(1) Subject to this Chapter, an employer may not require or permit an employee to work more than

(a) 45 hours in any week: and

(b) nine hours in any day if the employee works for five days or fewer in a week:

(c) eight hours in any day if the employee works on more than five days in a week.

(2) and (3) – not relevant for the purpose of this article

• What is important to note from the above is that an ordinary work week is 45 hours and is either seen as 9 hours or 8 hours per day, depending on if you work 5 or 6 days per week.

• What is also important to note is the fact that is speaks about working more than 45 hours, this of course would not include meal intervals, unless actually worked but more on that later.

Certain industries work less than this, however it is based on their own agreements and rules. Some of these industries include but are not limited to:

• The textile and construction industries as a general rule, work 40 hours per week.
• The glass sector is working between 40 and 42 hours.
• The sugar manufacturing industry is reduced to 43 hours per week.
• The metal and engineering industry has been on a 40 hour work week since 2002;
• The public service is 99% on a 40-hour week.

Section 10 – OVERTIME

Subject to this Chapter an employer may not require or permit an employee:

(a) to work overtime, except in accordance with an agreement;

(b) to work more than

(i) three hours’ overtime a day; or

(ii) ten hours’ overtime a week.

(2) An employer must pay an employee at least one and one-half times (x1.5) the employee’s wage for overtime worked.

(3) Despite subsection (2) an agreement may provide for an employer to:

(a) pay an employee not less than the employee’s ordinary wage for overtime worked and grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worked; or

(b) grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.

(4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it. (b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

(5) An agreement concluded in terms of subsection (1) with an employee when the employee commences

• So, based on the above, what I would like to highlight is that should employees (not mentioned in section 6 above) work more than 45 hours per week, they become entitled to either payment for overtime or alternatively, time off in accordance with hours actually worked.

• It is also important that overtime should be included in your contract of employment and indicate that the employer may expect the employee to work overtime and at which rate or time off.

Section 11 – COMPRESSED WORKING WEEK

I am not going to quote the law but what it says is that by agreement may the employer require the employee to work up to twelve hours in a day, inclusive of the meal intervals without receiving overtime pay. This still does not mean the employee will not be remunerated for overtime worked in accordance with the above section.

This predominately works in the Motor and Private Security industries as they work either a 4 days on, 3 (or 4) days off schedule which means the employees will work 12 hour shifts for 4 days and then be off for 3 or 4 days, which means they work the hours in the week, but just in a more compressed manner than others, however they get more days off than others due to this.

Section 12 – AVERAGING OF HOURS OF WORK

This section says that an employer may not require or permit an employee who is bound by a collective agreement to work more than an average of 45 ordinary hours of work in a week over the agreed period. This is usually just applicable during very busy or seasonal work where there is a big (temporary) increase of work where the employees work long hours and then there is an immediate decrease of work which means the employees work significantly less hours, but this is then averaged out over a period of time. Best example of this would be builders finishing up a build, or apple pickers on an apple farm being needed for 2 months but the hours are paid over 4 months.

Section 13 – DETERMINATION OF HOURS OF WORK BY MINISTER

This section just says that the Minister may determine the maximum prescribed working hours. He/she has the legal right and appointment to do so, should he/she so determine. Employers do not have much say in this.

Section 14 – MEAL INTERVALS (or more commonly known as Lunch Breaks)

(1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.

(2) During a meal interval the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee.

(3) An employee must be remunerated for a meal interval in which the employee is required to work or is required to be available for work

(4) For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes.

(5) An agreement, in writing, may— (a) reduce the meal interval to not less than 30 minutes; (b) dispense with a meal interval for an employee who works fewer than six hours on a day.

• This is was a big issue to a lot of employees as they indicated their ordinary working day is 9 hours but they only get paid for 8 and they do not get overtime. The reason for this is simple and I refer to subsection 3 above that requires an employer to remunerate or pay an employee for the lunch break, only if the employee works during that time, or is required to be available to work. In most instances the employees do not render actual performance during that time and accordingly is there no legal obligation on the employer to pay them for same.
• This, in turn means your ordinary working day is 9 hours long (7h00 to 16h00 as an example) but you only provided labour for 8 of those hours and accordingly are only entitled to 8 hours remuneration.
• This is not a blanket for all employees but should the metaphorical bell ring in the factory and the employees put down their tools and go on lunch until the bell rings again, then they are not entitled, whereas should an employee eat lunch at their desk while on the computer, that employee is entitled for remuneration, however I have the suspension that, that is also not the employee complaining about overtime and they have the tendency to earn and perform better than the others.
• Should the employment contract indicate lunch is 30 minutes and not an hour, then the employee will be remunerated for 8.5 hours and not 8 as the unpaid lunch is only 30 minutes and not 60 minutes.
• Should employees work on Saturday from 8h00 to 13h00 (as example) then the employer does not need to give a lunch break as the employee would not have worked the required 6 hours, provided this is included in the contract of employment.
• It is to be noted that the law DOES NOT indicate work on a Saturday is paid at x1.5. The reason why some employers choose to do this is to thank the employees for offering their Saturdays, to assist with the additional cost of transport over the weekend and because if they do not ordinarily work on a Saturday, may those hours work on a Saturday push them over the 45 ordinary working hours for the week and thus become entitled to payment at x1.5 (overtime) – this is not always the case but in most cases I have found it to be true.

Section 15 – DAILY AND WEEKLY REST PERIOD

Unless otherwise agreed in writing with a solid rationale, must employees be given a daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours. Example of this would be that the employee knocks off Saturday at 13h00 and returns Monday morning at 8h00 – this would mean the employee had 43 consecutive hours off and thus met the minimum requirement of section 15.

There are exceptions to the above, however that is very industry specific and would be specific to the employer’s contracts and agreements with clients.

Section 16 – PAY FOR WORK ON SUNDAYS

• Pay for Sunday work is x2 the normal hourly rate for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employee is entitled to remuneration at x1.5 the normal hourly rate.

• Should the remuneration be less than the employee earns on another shift, due to the hours being significantly less than other days, then the employer must pay the employee the equivalent to what the employee would earn on a normal shift.

Section 17 – NIGHT WORK

• “Night work” means work performed after 18:00 and before 06:00 the next day.

• An employer may only require or permit an employee to perform night work, if so agreed, and if the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours, and transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.

• This does not mean the employer needs to provide or pay for the transportation, but rather just make sure it is available.

Section 18 – PUBLIC HOLIDAYS

• An employer may not require an employee to work on a public holiday except in accordance with an agreement. If a public holiday falls on a day on which an employee would ordinarily work but the employee does not work, will the employee be entitled to the wage that the employee would ordinarily have received for work on that day – normal daily wage.

• Should the employee work on a public holiday must the employer pay the employee at least x2 the amount of ordinary hourly rate.

I understand that this was a long article with a lot of information, however usually BCEA training is a whole day (sometimes 2 days) training session due to the amount of information contained in same.

I do hope that this would clarify some issues regarding what is allowed and what is not, as well as how, why and for what an employee should be remunerated or not remunerated.

Please contact us if your organisation requires input or assistance on any labour-related matter.