Opinion in regards to hours of work and leave / by

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OPINION IN REGARDS TO HOURS OF WORK AND LEAVE by Ruben Opperman

6.   Application of this Chapter.—(1)  This Chapter, except section 7, does not apply to—

(a) senior managerial employees;

(b) employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work;

(c) employees who work less than 24 hours a month for an employer.

(2) Sections 9, 10 (1), 14 (1), 15 (1), 17 (2) and 18 (1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.

(3) The Minister must, on the advice of the Commission, make a determination that excludes the application of this Chapter or any provision of it to any category of employees earning in excess of an amount stated in that determination.

(Date of commencement: 21 March, 1998.)

[General Note: Determination, in terms of s. 6 (3), that all employees earning in excess of R205 433.30 per annum be excluded from ss. 9, 10, 11, 12, 14, 15, 16, 17 (2) and 18 (3) of the Act with effect from 1 July, 2014 under Government Notice No. 531 in Government Gazette 37795 dated 1 July, 2014.]

The application is quite clear on two fronts namely on employees in as stated in section 6 (1.a) which are senior employees and then the act refers to employees whose salaries exceed an earnings threshold as set by the minister of Labour.

It will be seen that the two subsections overlap but also deal with separate subsections of the act.

Management will therefore be seen to fall outside the ambit of the law in regards to overtime and working hours, the employer however needs to make sure that the fairness in regards to health and safety requirements are taken care of specifically to rest intervals between shifts.

Management employees therefore needs to be on shift or on standby at all hours where required and any hours worked or seen to be worked overtime will be part of his/her remuneration package.

Overtime. — (1) Subject to this Chapter, an employer may not require or permit an employee to work—

(a) overtime except in accordance with an agreement;

(b) more than ten hours’ overtime a week.

[Sub-s. (1) substituted by s. 3 (a) of Act No. 11 of 2002.]

Wording of Sections

(1A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day.

[Sub-s. (1A) inserted by s. 3 (b) of Act No. 11 of 2002.]

(2) An employer must pay an employee at least one and one-half times the employee’s wage for overtime worked.

(3) Despite subsection (2), an agreement may provide for an employer to—

(a) pay an employee not less than the employee’s ordinary wage for overtime worked and grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worked; or

(b) grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.

(4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it.

(b) An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

(5) An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.

(6) (a) A collective agreement may increase the maximum permitted overtime to 15 hours a week.

(b) A collective agreement contemplated in paragraph (a) may not apply for more than two months in any period of 12 months.

We now get to a situation where an employee work on a public holiday where it would have fallen within his ordinary shift.

18.   Public holidays5. — (1) An employer may not require an employee to work on a public holiday except in accordance with an agreement.

(2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay—

(a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;

(b) an employee who does work on the public holiday—

(i) at least double the amount referred to in paragraph (a); or

(ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.

(3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to—

(a) the employee’s ordinary daily wage; plus

(b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.

(4) An employer must pay an employee for a public holiday on the employee’s usual pay day.

(5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.

Section 18 is clear on when an employee can and cannot be permitted or expected to perform work, unfortunately for senior employees they are excluded from this section except subsection 2.

It therefore means that a management employee is required to be on duty or on standby during such a day. If he or she does work then such an employee may be remunerated for the time worked on that day or given time off for the hours worked.

Such an employee cannot therefore hold the employer at ransom that he or she is off on such a public holiday, or demand to be off on such a day.

Annual leave. — (1) In this Chapter, “annual leave cycle” means the period of 12 months’ employment with the same employer immediately following—

(a) an employee’s commencement of employment; or

(b) the completion of that employee’s prior leave cycle.

(2) An employer must grant an employee at least—

(a) 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or

(b) by agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid;

(c) by agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.

(3) An employee is entitled to take leave accumulated in an annual leave cycle in terms of subsection (2) on consecutive days.

(4) An employer must grant annual leave not later than six months after the end of the annual leave cycle.

(5) An employer may not require or permit an employee to take annual leave during—

(a) any other period of leave to which the employee is entitled in terms of this Chapter; or

(b) any period of notice of termination of employment.

(6) Despite subsection (5), an employer must permit an employee, at the employee’s written request, to take leave during a period of unpaid leave.

(7) An employer may reduce an employee’s entitlement to annual leave by the number of days of occasional leave on full remuneration granted to the employee at the employee’s request in that leave cycle.

(8) 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.

(9) An employer may not require or permit an employee to work for the employer during any period of annual leave.

(10) Annual leave must be taken—

(a) in accordance with an agreement between the employer and employee; or

(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.

(11) An employer may not pay an employee instead of granting paid leave in terms of this section except—

(a) on termination of employment; and

(b) in accordance with section 40 (b) and (c).

The section above is self-explanatory. Subsection 10 states specifically that leave can only be taken in accordance with an agreement with the employer or at a time determined by the employer.

The act does state that the employee is entitled to leave accumulated but section 10 overrides the entitlement.

The section does say that the employee may apply for leave during a time of unpaid leave the only times where unpaid leave will be permitted will be during times of pregnancy and during prolonged periods of illnesses.

Ruben Opperman

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