South Africa Employment Law

Day means a period of 24 hours measured from the time when the employee normally commences work. An employer may not require or permit an employee to work more than:

• • • 45 hours in any week: and
    • 9 hours in any day if the employee works for five days or fewer in a week; or 8 hours in any day if the employee works on more than five days a week.

An employee’s ordinary hours of work may by agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.

Employees earning less than the threshold, who work for less than four hours on any day must be paid for at least a minimum of four hours on that day.

Reduction of Work Hours

The Act establishes procedures for the progressive reduction of the maximum ordinary hours of work to a maximum of 40 ordinary hours of work per week and 8 ordinary hours of work per day through collective bargaining and the publication of sectoral determinations.

Compressed Working Week 

 An agreement in writing may require or permit an employee to work up to 12 hours a day, without receiving overtime pay. An agreement may not require or permit an employee to work:

• • • • More than 45 ordinary hours of work in any week;
      • More than 10 hours’ overtime in any week: or
      • on more than 5 days in any week.

Averaging of Hours of Work

The ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement. An employer may not require or permit an employee who is bound by a collective agreement to work more than an average of 45 ordinary hours of work in a week over the agreed period and an average of five hours’ overtime in a week over the agreed period.

A collective agreement lapses after 12 months. Section8, 9, 11, 12 of the Employment Act as amended in 2020.

Record-Keeping Requirements

Every employer must keep a record containing at least the following information:

• • • • • The employee’s name and occupation;
        • The time worked by each employee;
        • The remuneration paid to each employee;
        • The date of birth of any employee under 18 years of age: and
        • Any other prescribed information.

A record must be kept by the employer for a period of three years from the date of the last entry in the record. Section 31 of the Employment Act.

Calculation of Remuneration and Wages

An employee’s wage is calculated by reference to the number of hours the employee ordinarily works. In order to calculate the wage of an employee by hours worked an employee is deemed ordinarily to work:

• • • • • • 45 hours in a week unless the employee ordinarily works a lesser number of hours in a week;
          • 9 hours in a day, or 7.5 hours in the case of an employee who works for more than five days a week, or the number of hours that an employee works in a day in terms of an agreement, unless the employee ordinarily works a lesser number of hours in a day.

An employee’s monthly remuneration or wage is four and one-third times the employee’s weekly remuneration or wage, respectively.

If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee’s remuneration or wage fluctuates significantly from period to period, any payment to that employee must be calculated by reference to the employee’s remuneration or wage during:

• • • • • • the preceding 13 weeks; or
          • If the employee has been in employment for a shorter period, that period.

An employer may not require or permit an employee:

• • • To work overtime except in accordance with an agreement;
    • To work more than 10 hours’ overtime a week.
    • To work more than 3 hours of overtime in a day.

An employer must pay an employee at least one and one-half times the employee’s wage for overtime worked or an employee may agree to receive paid time off.  A collective agreement may increase overtime to 15 hours per week for up to two months in any period of 12 months. An agreement may provide for an employer to:

• • • • 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
      • Grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.

An employer must grant paid time off within one month of the employee becoming entitled to it. An agreement in writing may increase the period contemplated to 12 months.  An agreement to work overtime lapses after one year.  Section 10 Employment Act as amended in 2020

Night work means work performed after 18:00 and before 06:00 the next day.

An employer may only require or permit an employee to perform night work, if so agreed, and if the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours. Transportation should be made available between the employee’s place of residence and the workplace at the beginning and end of the employee’s shift.

An employer who requires an employee to perform work on a regular basis after 11 pm and before 6 am the next day must:

• • • Inform the employee in writing, or orally
    • Of any health and safety hazards associated with the work that the employee is required to perform; and
    • Of the employee’s right to undergo a medical examination.

Employees who perform night work for a period longer than one hour after 11 pm and before 6 am at least five times per month and at least 50 times per year are considered to perform night work on a regular basis. Section 17 Employment Act.

An employer must give an employee who works continuously for more than five hours a meal interval of at least 60 minutes. During a meal interval, the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee. An employee must be remunerated for:

• • • a meal interval in which the employee is required to work and required to be available for work; and
    • 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.

Work is continuous unless it is interrupted by an interval of at least 60 minutes. An agreement in writing may reduce the meal interval to not less than 30 minutes. An agreement can remove a meal interval for an employee who works fewer than six hours a day.  Section 14 of the Employment Act.

Breastfeeding Break

For the first six months after the birth of a child, employees who are breast-feeding should have two 30-minute breaks each workday to breast-feed or express milk. While this is non-binding, courts and tribunals consider them in labor law disputes.

Daily Rest Period

An employer must allow an employee a daily rest period of at least 12 consecutive hours between ending and recommencing work.  The daily rest period may by written agreement be reduced to 10 hours for an employee who lives on the premises at which the workplace is situated and whose meal interval lasts for at least three hours. Section 15 of the Employment Act.

Weekly Rest Period

An employer must allow an employee a weekly rest period of at least 36 consecutive hours which. unless otherwise agreed, must include Sunday.

An agreement in writing may provide for a rest period of at least 60 consecutive hours every two weeks, or an employee’s weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently. Section 15 of the Employment Act.

An employer must pay an employee who works on a Sunday at double the employee’s wage for each hour worked unless the employee ordinarily works on a Sunday. In which case the employer must pay the employee at one and one-half times the employee’s wage for each hour worked.

If an employee works less than the employee’s ordinary shift on a Sunday and the payment that the employee is entitled to be less than the employee’s ordinary daily wage, the employer must pay the employee the employee’s ordinary daily wage.

Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee’s ordinary hours of work but is taken into account in calculating the maximum number of daily and weekly overtime ( 3 and 10 respectively) hours worked by the employee.

If a shift worked by an employee falls on a Sunday and another day the whole shift is deemed to have been working on Sunday. unless the greater portion of the shift was worked on the other day. in which case the whole shift is deemed to have been worked on the other day.

Time off in Lieu

Compensation for Sunday work may also be given in the form of paid time off work, in lieu of cash payment. Sunday time, for an employee who does not ordinarily work on a Sunday, does not form part of his ordinary hours of work, or in terms of his employment contract. In other words, if an employee is contracted to work 45 hours per week, but he has only worked 40 hours for the week for whatever reason, the employer cannot demand that he must work 5 hours on Sunday to make up his normal time. Section 16 Employment Act.