By Anna Malczyk
If you are interested in this topic, take a look at our University of Cape Town (Law@Work) Practical Labour Law course.
The rules for working on Sundays and public holidays are different depending on whether the employee falls under the provisions relating to working times of the Basic Conditions of Employment Act or not. To qualify for these provisions currently, the employee must earn less than the statutory specified annual amount (published annually). Bear in mind that there may also be specific bargaining council agreements that govern Sunday and public holiday work for certain sectors.
For the rest, all work on Sundays and public holidays is voluntary, unless the employee has agreed to Sunday work in the employment contract as a matter of course. Sunday and public holiday work may also be required on short notice if the work in question cannot be delayed and if circumstances arise that the employer could not reasonably have expected. In addition, different rules apply to work on Sunday and on public holidays.
Employees under the BCEA
Employees who qualify under the provisions of the BCEA can volunteer to do overtime work on Sundays and public holidays if they are requested to do so by the employer. An employee who does ad hoc overtime work on a Sunday must be remunerated, at a rate of double the usual wage or hourly fee. If an employee normally works on a Sunday, she must still be paid one and a half times the normal daily rate.
Employees can never be required to work on a public holiday at the usual daily fee. Work on a public holiday can only be undertaken according to a special agreement between the employer and employee, and the fee must be at least double the normal rate. If the employer and employee agree, the remuneration can also be in the form of paid time off.
Employees not under the BCEA
The employment contract must specify the number of hours per week that the employee has been contracted to work. Any time that is worked over this limit classifies as overtime. This overtime does not distinguish between after-hours Sunday, or public holiday work. The employment contract should also specify whether the employee agrees upfront to do some overtime work when required or not.
The conditions and compensation for overtime work must be negotiated between the employer and employee. The employer is not obliged to pay for overtime work in any way, and an employee is not obliged to work overtime if he does not want to. The employee may not demand compensation or paid time off, but may choose whether or not to work. Equally, the employer may not demand that the employee work overtime, with or without compensation.
To incentivise the employee to work overtime, the employer could choose to compensate the employee with remuneration or paid time off, as agreed by the parties. The employee cannot demand compensation if she must perform urgent overtime work due to unforeseen circumstances.
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