SECTION 23 of our Constitution provides that everyone has the right to fair labour practices. In order to give effect to this right in the employment law context, the Basic Conditions of Employment Act 75 of 1997 (the BCEA) was passed to regulate the basic conditions of employment.
Among a number of other issues, the BCEA regulates issues such as ordinary hours of work, overtime work, Sunday work, meal intervals, night work, daily and weekly rest periods.
Subject to a few exceptions, the BCEA regulates these as follows:
Ordinary hours of work
An employer may not require or permit an employee to work more than 45 hours in any week. This translates into nine hours in any day if an employee works for five days or fewer a week. Alternatively, eight hours in any day if the employee works for more than five days a week.
An employee may not be required or permitted to work more than 10 hours overtime in a week. Overtime work is subject to an agreement between the employer and the employee. Such agreement may, however, not require an employee to work more than 12 hours a day.
An employee who works on a Sunday must be paid double his wage for each hour worked, unless such employee ordinarily works on a Sunday, in which case he must be paid one-and-half times his wage for each hour worked.
An employee who works continuously for more than five hours must be given a meal interval of at least one continuous hour.
Subject to an agreement between the employer and the employee, the meal interval may be reduced to a period not less than 30 minutes. The meal interval may by agreement be dispensed with if such employee works for fewer than six hours in a day. The meal intervals are included in the maximum ordinary hours of work.
Night work refers to work performed after 6pm and before 6am the next day.
The performance of night work is subject to an agreement between the employer and the employee. An employee may only be required to work night shift if he is compensated by payment of a shift allowance or reduction of working hours.
The requirement for the employee to perform night work must be made subject to the availability of transport between the employee's place of residence and the workplace at the commencement and conclusion of the night shift.
In terms of the Code of Good Practice on arrangement of working time, issued in terms of the Labour Relations Act, night shifts should be no longer than morning and afternoon shifts.
Daily and weekly rest period
An employer must allow an employee a daily rest period of at least 12 consecutive hours between ending and recommencing work and a weekly rest period of at least 36 consecutive hours.
The above mentioned conditions are, however, not applicable to employees earning in excess of R149736 per annum.
In Simba (Pty) Ltd v Fawu, the court stated that while the employer and the employee may agree on the regulation of their conditions of employment, to the extent that the terms of the agreement are in conflict with the provisions of the BCEA, such terms are unenforceable.
In the event that the employer is in breach of the above conditions, such breach must be reported to the Department of Labour. The department has the powers to investigate and take appropriate action against employers who are in breach of these conditions.
l Lavery Modise is deputy chairperson of Eversheds and Lebogang Kutumela is an associate at Eversheds