ORDINARY HOURS, OVERTIME, COMPRESSED WORKWEEKS & AVERAGING OF HOURS

Written by Limya Kamaldien

It is easy to overlook the fine print of labour law until a dispute arises. In AMCU obo Mkhonto and Others v CCMA and Others (JR2266/17), employees refused to work overtime without prior agreement. The CCMA upheld their dismissals, but the Labour Court overturned the decision, ruling that Section 10 of the Basic Conditions of Employment Act (BCEA) requires explicit agreement. Tacit consent is not enough. Refusal to work overtime without agreement is not insubordination.

This case is a reminder to our industry: agreements must be lawful, explicit, and aligned with the Main Collective Agreement (MCA). Without them, employers risk disputes, reinstatements, and back pay orders.

Ordinary Hours of Work

The MCA sets the baseline ordinary hours:

• Maximum of 45 ordinary hours per week for full-time employees.

• Maximum of 9 ordinary hours per day if working five days or fewer.

• All hours must be recorded consecutively except for meal intervals.

• Employers may apply for exemption to operate on a 40-hour week, but only through the Council’s formal process.

For a standalone establishment, these limits often align with typical business hours. In shopping centres, however, extended trading times can stretch schedules. Employers must still respect the 45-hour cap and use lawful mechanisms (like overtime or compressed workweeks) to cover evening or weekend shifts.

Overtime

The MCA requires that overtime be recorded and paid correctly.

• Clause 19.7.4 - 19.7.6: Salary slips must show overtime rates and hours worked.

• Employees may be required to work overtime; however, within prescribed parameters such as a maximum number of hours per day or week or number of days per week, depending on the area-specific prescriptions in the MCA.

• Overtime must be agreed upon and paid at 1.5 × the normal hourly rate.

• Work on Sundays and public holidays must be paid at double the normal hourly rate, unless time off in lieu is agreed.

In a traditional establishment, overtime might occur during festive seasons or promotional events. In shopping centres, extended trading hours can make overtime routine. Employers must ensure agreements are explicit and payroll reflects the premium rates.

Compressed Workweeks

The MCA allows flexibility, but only with agreement.

• While the gazetted extension does not contain a clause explicitly labelled “compressed workweek,” the MCA framework permits flexibility by written agreement.

• Employees may work longer daily hours if agreed, provided the total weekly ordinary hours do not exceed 45, and overtime limits are respected.

For standalone establishments, compressed workweeks may be useful during peak seasons. For establishments in shopping centres, they are often essential to cover late trading hours without breaching weekly limits.

Averaging of Hours

The MCA permits averaging of ordinary and overtime hours, but only under strict conditions.

• A written agreement may average hours over a period of up to five weeks.

• Employers may not require or permit an employee to work more than:

o An average of 45 ordinary hours per week over the agreed period.

o An average of 30 overtime hours per week over the agreed period.

• Employers must keep copies of averaging agreements for three years and respect rest intervals.

This flexibility allows standalone establishments to balance seasonal demand. For shopping centre establishments, average agreements are particularly valuable, as trading hours fluctuate with promotions, holidays, and seasonal foot traffic.

Short Time

Clause 20 of the MCA regulates short-time.

• Employers must give notice and consult with employees and unions.

• Employees are paid only for hours worked, with deductions prorated.

• The short time may not exceed six months unless extraordinary circumstances exist.

• Urgent short-term measures may be invoked immediately, but disputes must be resolved through the Council.

Standalone establishments may use short-time during quiet months. Establishments located in shopping centres face similar pressures, but must manage short-time transparently, especially when landlords expect extended trading hours.

Leave

Clause 21 of the MCA sets out leave entitlements.

• Annual leave: Must be granted within six months of the cycle. Employers may instruct leave, but refusal results in forfeiture.

• Maternity leave: Four weeks before the expected birth until 13 weeks after. Employers are not obliged to pay during maternity leave, but must allow return within 13 weeks.

• Union leave: Granted as per area-specific provisions.

Employers must respect these entitlements. Leave cannot run concurrently with notice or sick leave, and accrued leave must be paid to the estate upon death.

Public Holidays and Industry-Specific Variations

Public holidays are a critical part of working time and remuneration. The MCA makes clear that employers may not require or permit employees to work on a public holiday except by agreement, and if work is performed, it must be compensated at the correct premium rate or exchanged for time off in lieu.

While the Public Holidays Act sets the national calendar, the MCA goes further in certain regions. For example, in the Western Cape (Area D), Easter Saturday is expressly treated as a public holiday within the industry. This means:

• If employees are required to work on Easter Saturday, they must be paid at 1.5 × their daily wage or salary, in addition to their normal pay.

• Alternatively, employers and employees may agree to time off in lieu, provided it is taken within 60 days.

Standalone establishments may choose to close on public holidays. Shopping centre establishments often face pressure to open regardless. Employers must comply with MCA rules: double pay unless time off in lieu is agreed, and in Area D (Western Cape), Easter Saturday must be treated as a holiday.

The Bow: Tying It Back to the Industry

The case law shows the risks of relying on tacit consent. The BCEA provides the national framework. The CCMA enforces it. But for our industry, the MCA and its area agreements are the anchor. They ensure compliance with national law while reflecting the realities of salon/spa operations.

For employers, the message is clear:

• Ordinary hours, overtime, compressed workweeks, averaging, short time, leave, and public holidays in this sector are regulated by the MCA, which must be read with the BCEA and area‑specific provisions.

• Agreements must be explicit, documented, and aligned with the MCA.

• Payroll and HR practices must reflect industry-specific rules, not just general BCEA standards.

• Area agreements must be checked to ensure compliance with local variations.

• Establishments in shopping centres must pay special attention to extended trading hours, using lawful mechanisms to stay compliant.

Closing Thought

Compliance is not optional. Employers in the hairdressing, cosmetology, beauty, and skincare industry must understand how working time, leave, and remuneration are regulated by the MCA, subject to the BCEA. By respecting these frameworks, employers protect themselves from disputes, safeguard employee rights, and build sustainable businesses whether operating in a standalone establishment or inside a shopping centre.