By Venolan Naidoo (Senior Associate at Hayes Incorporated)
It is a reality of business that upsurges in workflow occur from time to time. To meet such demands, an employer would require employees to work more than their ordinary working hours as governed by law. This also benefits an employee as they would be entitled to further remuneration in accordance with the overtime worked performed.
Our labour laws regulate overtime and this article will briefly look at the requirements to lawfully implement overtime work. The article does not discuss overtime work as extended by collective agreements or sectoral determinations as may differ from industry to industry.
It is vital to point out that the regulation on overtime work applies to employees earning the equivalent or below the prescribed threshold as determined by the Minister of Labour (presently set at, R 205 433.30).
In terms of section 9 of the Basic Conditions of Employment Act No. 75 of 1997 (“BCEA”), an employee may not work in excess of 45 hours a week. On a 5-day working week, in no excess of 9 hours a day. On a 6-day working week, in no excess of 8 hours a day. Therefore, hours worked in excess of these prescribed limits would be considered overtime.
In terms of section 10 of the BCEA, an employer may not permit an employee to work overtime unless:
• it is in accordance with an agreement with an employee;
• the overtime shall not be for more than ten hours in a week; and
• should not allow an employee to work more than twelve hours in a day.
An agreement to work overtime may be concluded either verbally or in writing. Though, it is advisable to do so in writing for reasons of certainty.
Section 1(5) of the BCEA states than an overtime agreement concluded during the commencement of employment or within the first three months of employment lapses after one year. The parties are then required to conclude a new agreement should they intend continuing their overtime work arrangement.
Our laws allow parties a fair amount of flexibility when it relates to the arrangement of weekly working hours insofar as it does not exceed the ten-hour overtime limit. The Code of Good Practice Arrangement of Working Time provides useful guidelines in this regard (see link: http://www.labour.gov.za/DOL/legislation/codes-of-good-ractise/Basic%20Conditions%20of%20Employment/code-of-good-practice-on-arrangement-of-working-time).
Should an employee indeed work overtime an employer is required to remunerate him or her at the rate of pay of one and a half times the normal hourly remuneration or provide an employee such equivalent time off instead of remuneration.
As stated above, it is recommended that an overtime agreement should be concluded in writing to avoid any possibility of a dispute. In addition, a written agreement should unambiguously be worded to give full effect to such intention on overtime work. Parties are directed to seek labour law advice should they require further advice on the terms of such agreement.