Having to work after hours: Is it legal?

Many industries may sometimes require their employees to work irregular hours. Employers within these industries, also known as “24/7″ industries, have somehow developed the notion that they are “different” from any other industries.

The Basic Conditions of Employment Act, and The Code of Good Practice, explain the criteria for this important aspect of employment. It is vitally important that employers are familiar with the Act and know what its implications are.

What does the Act say?

According to the Act, no employee may work more than 45 hours per week during normal work times. Furthermore, no employee may work more than 10 hours per week overtime. This applies irrespective of what industry you are in, because the act does not differentiate between different types of industries or employment environments.

The only document that may bring about a different condition would be a sectoral determination, or perhaps a Main agreement or collective agreement.

• The idea of a “24/7” industry is irrelevant – the law remains the same. Furthermore, the Act provides for a daily rest period of 12 consecutive hours between finishing work and recommencing work.
• Employers who allow “days off” to compensate for additional hours worked must realise that these “days off” cannot be taken from the employee’s annual leave. 

Working on the weekend

If the employee’s normal shift falls on a Sunday, then he/she must be paid 1,5 times the normal wage rate for that work, and if the normal shift does not fall on a Sunday, but they are required to work that Sunday, then they must receive double the normal wage rate for the day.

Conclusion

It is clear that it is unlawful for an employer to force an employee to work a full shift of 9 hours, for example, and then have them be on “standby” for the next 12 hours – to do so would violate the condition regarding the daily rest period.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)

References:

The South African Labour Guide, http://www.labourguide.co.za/conditions-of-employment/763-working-hours-and-overtime