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Overtime Know your Rights

Public holiday season began with Human Rights Day in March last month, and soon the Easter holidays are approaching quickly. Taking us through to June, South Africans can enjoy the many additional days of rest that are ahead of us. Employers on the other hand have a little extra work to negotiate the overtime that must be paid when their staff work on these special days. According to the Basic Conditions of Unemployment Act, an employer is required to pay the employee normal rate for every public holiday.

Overtime is defined as all hours worked in excess of the employee’s ordinary hours of work are regarded as overtime hours. Therefore, if your employee is contracted to work 45 hours per week normal time, then any hours in excess of that is overtime worked. Similarly, if your employee is contracted to work 40 hours per week normal time, then any hours in excess of the 40 hours is overtime worked. As with overtime, no employer may require any employee to work on a Sunday or public holiday unless they have gained agreement to do so.

Should the employees work on any public holiday they must reimburse an employee at double the employee’s wage for overtime worked. An employer must grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worked. Otherwise, they must grant an employee at least 90 minutes’ paid time off for each hour of overtime worked. When granting paid time off, the employee must be allowed to take the leave within a month. If this cannot happen because of operational requirements, an agreement be made to allow the employee to take the leave within twelve months.

If the public holiday falls on a day on which the employee would ordinarily work, the employee is entitled to that day off on full pay. If the employee agrees to work then they are entitled to be paid his/her ordinary daily wage plus the amount earned by him for the work performed on that day.

Where a public holiday falls on a day on which the employee is not scheduled to work, no payment is necessary unless they are asked to, and agrees to work. In which case it is treated as a worked Public Holiday.

As overtime is not compulsory employees can refuse to work overtime on short notice. However, an employee cannot refuse to work overtime if the work which is required to be done must be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision, such as the sudden breakdown of equipment, and which cannot be performed by employees during the ordinary hours of work. (Section 6 (2) BCEA). Where this is possible, it is advised that the circumstances of this provision be made clear in the conditions of employment or similar document.

Unless stipulated and agreed to in the letter of appointment, overtime is voluntary. The Employee must be requested to and must agree to work the required overtime. It is advisable to confirm this in writing in the form of signature to a roster or similar.

Where time off is agreed to in lieu of payment, the Employee should take this time off within 3 months of the date of working, unless otherwise agreed to in writing.