Working time including overtime is regulated by the Basic Conditions of Employment Act (BCEA) in Chapter 2 (two) and the Main Collective Agreement (MCA) of the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty Industry (HCSBC) in clauses 32 and 34.
Chapter two and clauses 32 and 34 however do not apply to the following employees:
Senior managerial employees;
Employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work;
Employees who work less than 24 hours a month for an employer.
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 Time issued under section 87(1)(a) of the BCEA; and
With due regard to the family responsibilities of employees.
As per section 9 of the BCEA and clause 32 of the MCA, the maximum normal (ordinary) working time for an employee below the threshold (2023 – R241 110.59 per annum) is 45 hours per week. This would mean a maximum of 9 (nine) hours on any day if the employee works for 5 (five) days or fewer in a week and 8 (eight) hours on any day if the employee works more than 5 (five) days in a week.
This does not mean that the employee must work 45 hours per week normal time. The amount of normal time worked is a matter of contractual agreement between the employer and employee. Some employees for instance work a 40-hour week. The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time.
Employees who earn above the determined threshold amount must negotiate the normal number of working hours per day or per week with the employer. The employee may therefore be expected to work more than 45 hours per week.
It must be taken into consideration that meal and tea breaks are not included in the calculation of working hours and will therefore be unpaid. As meal breaks are unpaid the employee can for instance read a book or go and do some shopping. An employee must be remunerated for a meal break that the employee was required to work or to be available for work. Further to this the employee must be paid for any portion of a meal interval that is in excess of 75 minutes unless the employee lives on the premises at which the workplace is situated.
Therefore, an employee who works 5 (five) days per week and who receives a meal break of 1 (one) hour per day will actually be at the workplace for 50 hours weekly (45 hours normal working time + 5 hours daily meal breaks). The meal break is to be provided after 5 (five) hours of continuous working time. Tea breaks do not qualify as a break in working time. The statutory meal break is 1 (one) hour, but by agreement between the employee and employer, this may be reduced to 30 (thirty) minutes.
The maximum permissible overtime as per section 10 of the BCEA and clause 34 of the MCA is 10 hours in any 1 (one) week. As per the definitions of the BCEA, a week means the period of 7 (seven) days within which the working week of that employee ordinarily falls, and a day is a period of 24 hours measured from the time when the employee normally commences work. Employees earning below the threshold must be paid 1.5 times the normal wage rate for overtime work except for Sundays. For Sunday remuneration, refer to clause 34 of the MCA.
On agreement, an employer may allow an employee to pay time off for overtime work instead of paying the employee. The employee will then be entitled to 90 minutes of paid time off for every 60 minutes of overtime worked. The referred paid time off must be granted to the employee within 1 (one) month after working the overtime, but by agreement, this period may be extended to 12 months. Employers must also take into consideration that an agreement by the employee to work overtime that was reached during the first 3 (three) months of employment, lapses after 1 (one) year. The onus will therefore be on the employer to reconfirm the commitment of the employee to work overtime after a period of 12 months.
Employees who earn in excess of the present threshold amount are not subjected to the provisions of section 10 (overtime) of the BCEA and clause 34 of the MCA. This means that such employees cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off. However contrary to popular belief, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation unless the employee agreed to this.
All forced labour is prohibited in terms of section 48 of the BCEA, and should the employer require such employees to work overtime, then the hours to be worked and the basis of compensation will have to be negotiated between the two parties.
What is “overtime worked”?
As per the BCEA, all hours worked in excess of the employee’s normal daily or weekly hours of work will be regarded as overtime hours. Therefore, if an employee is contracted to work 45 hours per week normal time, then any hours in excess of that is overtime. Similarly, if the employee is contracted to work 40 hours per week normal time, any hours in excess of 45 hours is overtime.
Overtime is compulsory and employees can refuse to work overtime on short notice unless the employee contractually agreed to be available to work overtime on short notice. In circumstances where overtime work on short notice is required by the employer, fairness toward the employee must be taken into consideration. Despite the aforementioned, 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 for instance the sudden breakdown of equipment.
An employee that works on a Sunday must be remunerated at double their normal wage rate for each hour worked, unless they ordinarily work on a Sunday, in which case they must be remunerated at 1.5 times their normal wage rate for each hour worked. Refer to clause 34 of the MCA as this condition differs based on the specific nature and needs of the industry and area.
Work on a public holiday is by agreement and an employee must be paid double their normal daily rate for work on a public holiday if the employee would’ve ordinarily worked on that public holiday. Should an employee be expected to work on a public holiday on which they would not normally work, then the employee must be paid at least their normal daily wage plus the normal wage rate for the hours worked. Refer to clause 35 of the MCA as this condition differs based on the specific nature and needs of the industry and area.
Earnings threshold explained:
Section 6 of the BCEA makes provision for the Minister of Labour to publish a determination on the advice of the Commission that will exclude employees earning above a certain amount per year from sections of Chapter 2 of the Act. Chapter 2 primarily deals with the regulation of the working hours of employees.
Employees earning under the threshold amount have the full protection of every section of the BCEA and MCA.
The Act entitles such persons to certain things such as:
Overtime may only be worked by agreement between the employer and the employee.
The employee has the legal right and entitlement to demand payment for overtime worked at the rate of 1.5 times their normal wage rate, or at whatever rate is applicable (not less favourable than the minimum set in the Act).
The employee can also enter into an agreement with the employer whereby they can be given paid time off work instead of payment for overtime worked.
Generally, the employee can legally refuse to work more than 45 hours per week normal time, and they can legally refuse to work more than 12 hours in any 1 (one) day, consisting of 9 (nine) hours normal time and 3 (three) hours overtime. There are some circumstances where the employee may not be able to refuse. Such as in emergency overtime.
Employees earning over the threshold amount do not have a legal right to demand anything but do have a right to negotiate. Thus, the employee earning over the threshold amount must approach the employer, negotiate, and reach an agreement on how many normal hours and overtime work will be required from the employee. Once this has been established the parties must agree on remuneration for the overtime worked. Such remuneration may be less than the minimum prescribed by the BCEA or MCA. The same must be agreed upon for work on public holidays as per section 18(3) and clause 34 of the MCA and work on Sundays, clause 35 of the MCA.
The employer is in a similar position, the employer also cannot demand that employees earning over the threshold must work overtime, standby duties, attend callouts, etc, without limitation and without compensation. The reason why the employer cannot make those demands is stipulated in section 48 of the BCEA, which reads as follows:
Subject to the Constitution, all forced labour is prohibited.
No person may, before their own benefit of someone else, cause, demand, or impose forced labour in contravention of subsection (1).
Therefore, for employees earning over the threshold, the employer is in the same situation in that they cannot demand but must instead also negotiate.