Every employee is either subject to a contract of employment or terms and conditions applied to a specific job or industry. Most employees have their working time regulated by the Basic Conditions of Employment Act of 1997 as amended.
Most of chapter two of the Basic Conditions of Employment Act applies to all employees but not to senior managerial employees and employees who work less than 24 hours a month for an employer.
Furthermore, sales staff who travel to premises of customers and who regulate their own hours of work are also exempt from the regulation of working time.
Certain sections do not apply to work which is required to be done without delay owing to the circumstances for which the employer could not reasonably have expected to make provision and which cannot be performed by employees during their ordinary working hours.
This refers to emergencies and the like. Employees earning in excess of an amount as determined by the minister of labour from time to time would also be exempt from the regulation of working time.
It must be remembered that the employers must regulate the working time of each employee in accordance with the provisions of any act governing occupational health and safety and obviously with due regard to health and safety of all employees.
The act has gone much further and has produced a Code of Good Practice on the regulation of working time.
All working time must take into account family responsibilities of the employees.
Ordinary hours of work are normally 45 hours in any week and 9 hours in any day if the employee works for five days or fewer in a week.
This translates into eight hours in any day if the employee works on more than five days in any week.
Employees might be required or permitted to work overtime in accordance with an agreement, and it should not be more than 10 hours overtime a week.
The agreement may not require or permit an employee to work more than 12 hours on any day.
An employer must pay the employee at least one and a half times the employee’s wage for overtime worked.
An employer might agree with an employee to grant that employee at least 90 minutes pay time off for each hour of overtime worked. The employer must grant paid time off within one month of the employee becoming entitled to it.
Collective agreements between trade unions and employers may increase the maximum permitted overtime to 15 hours a week. This collective agreement may not apply for more than two months in any period of 12 months.
There is also a possibility of an agreement in writing which may require or permit an employee to work up to 12 hours in a day inclusive of the meal intervals without receiving overtime.
This written agreement will not allow an employee to work more than 45 ordinary hours of work in any week and may not allow an employee more than 10 hours overtime in any week. Furthermore, an employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.
During this 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. If the employee has to do some work during the meal interval, then that employee must be remunerated for that meal interval.
An agreement in writing may reduce the meal interval to not less than 30 minutes, and it likewise may also dispense with the meal interval altogether for an employee who works fewer than six hours on any one day.
We often read of certain professions and industries that work ridiculously long hours. It is sometimes damaging to the health of the employee not to have the requisite amount of time off to rest.
Unfortunately, many employees do not wish to “rock the boat” and refuse to complain if they are forced to work ridiculously long hours. It has been my experience as well, that many employees do not receive overtime when in fact they should be paid at least one and a half times their normal pay for the overtime worked. It must be remembered that complaints of this nature can be forwarded to the Department of Labour or the Bargaining Council if the business falls under the jurisdiction of a bargaining council. It must be remembered that the Basic Conditions of Employment Act outlines the very basis of our labour law and no agreement between employer and employee is valid if an employee agrees to take away some rights as conferred in the Basic Conditions of Employment Act.
The agreement would be treated by the Department of Labour as if it was not written.
Many employees agree to onerous terms and conditions which make them worse off than that in the Basic Conditions of Employment Act, but these conditions are not valid in our law, even if signed by both parties. Every workplace should have a summary of the Basic Conditions of Employment Act in chart form on display for all the employees to use as a reference.
In essence, the Basic Conditions of Employment Act gives effect to the right to fair labour practices referred to by our constitution. This act establishes and makes provision for the regulation of basic conditions of employment.
South Africa is a member state of the international labour organisation and strictly adheres to the terms and conditions applicable to employee rights world over.