It is important to again look at leave as contained in the Basic Conditions of Employment Act (BCOEA) and other legislation. As the holiday season approaches, I am receiving many varied requests about how much leave people are entitled to under different types of conditions.
First, the amendments to the Act have now been activated although the Labour Ministry still invites comments on the regulations. The labour minister has said people can access the amended parental leave. Employees are entitled to 10 days parental leave or adoption or commissioning parental leave. The individuals with regard to the commissioning parental leave will make the election.
The periods of absence will be paid at 66% of the salary (up to this threshold) and will be paid by the Unemployment Insurance Fund (UIF). Many employers will have to change their letters of appointment and contracts of employment to include this particular type of leave.
It must be remembered that leave is taken as per the individual employment contracts or is negotiated directly with the employer. We also know that there is a daily and weekly rest period in terms of Section 15 of the BCEA and there must be a daily rest period of at least 12 consecutive hours between ending and recommencing work.
Also, a weekly rest period of at least 36 consecutive hours must be taken which would include a Sunday, unless otherwise agreed. The daily rest period can be reduced to 10 hours if the employee lives on the premises and the meal interval lasts for at least three hours. Also, employers may not require an employee to work on a public holiday except in accordance with their agreement. If the employee works on a public holiday that employee must be paid double the ordinary wage.
Annual leave means the period of 12 months of employment and the employee must receive 21 consecutive days annual leave on full remuneration in respect of each annual leave cycle.
This can be calculated on the basis of one day of annual leave on full remuneration for every 17 days on which the employee works.
This can be further broken down by stating that by agreement one hour of annual leave must be paid on full remuneration for every 17 hours on which the employee worked or was entitled to be paid. It is vital to understand that the employer must grant annual leave not later than six months after the end of the annual leave cycle. The employees annual leave can be interrupted should the employee fall ill during that time. Furthermore, an employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave on which the employee would ordinarily have worked. There is still some confusion about an employer forcing an employee to work during the period of annual leave. This cannot be done unless the employee agrees.
Annual leave is taken in accordance with an agreement between employer and employee, and if there is no agreement, the employer would determine when this leave can be taken. Employers may not pay an employee instead of granting paid leave. There is a common practice for employers to rather pay the employee for the annual leave and ask the employees to perform work during that time. This is not permitted in terms of the act but payments on termination would include payment for any outstanding leave not taken.
Payment for annual leave must be at least the equivalent of the remuneration that the employee would have received for working. The payment must be before the beginning of the period of leave or by agreement, on the employees’ usual pay day.
As the holiday season approaches, I am receiving many varied requests about how much leave people are entitled to under different types of conditions – Altitude Employment Solutions assist Business Owners with leave benefits and other basic conditions of employment as stipulated in the BCEA. If you have staff, speak to us. Call 061 420 9537