Conditions of Employment


We receive many enquiries on this subject, particularly from employers and employees in the hospitality industry, the IT industry, call centres and so on.  The reason and that these inquiries come through to us is because, for some unknown reason, employers and employees in the these industries – known as the "24/7" industries -  have somehow developed the notion that they are "different"  from any other industry.


The Basic Conditions of Employment Act, chapter 2, and The Code of Good Practice - On the Regulation Of Working Time - lay down the criteria for this all important aspect of employment. If you, as an employer, do not have in your position a copy of the Basic Conditions of Employment Act, and/or the above-mentioned Code of Good Practice, then I suggest you obtain both as a matter of urgency.


No employee may work more than 45 hours per week normal time and the 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 industry or employment environment. The only document that may bring about a different condition would be a sectoral determination, or perhaps a Main agreement or collective agreement.


Even though the industry you may be in is what is known as "24/7", this makes no difference. The maximum normal time remains at 45 hours weekly and the maximum overtime remains at 10 hours weekly. In addition, the Basic Conditions of Employment Act provides for a daily rest period of 12 consecutive hours between finishing work and recommencing work, and provides for a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include a Sunday.

 

Thus, it is obvious that, from the above, it is unlawful for an employer to force an employee to work a full shift of say 9 hours, and then be on "standby" for the next 12 hours - to do so would violate the condition regarding the daily rest period. Employees in the so-called "24/7" type of industry such as hospitality and IT, are still subject to the 45/10 rule.


Even on public holidays, such employees may not be forced to work on a public holiday except by agreement, and if they do work the public holiday they must get double pay for the day even if their normal shift falls on the public holiday. If they do not work the public holiday, then they are entitled to receive their normal wage for the day.


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.

 

Employers who allow  " days off" to compensate for additional hours worked (sometimes this is classed as the "averaging of working hours" or the "compressed working week") must be careful to note that these "days off" have  nothing whatsoever to do with the employee's annual leave, and the annual leave provision is over and above any days off that may be allowed. It has been reported that some employers deduct the days off from the annual leave entitlement. This is totally unlawful and employers would be wise not to indulge in such practices. Employees in the "24/7" industries are entitled to the normal sick leave and family responsibility leave benefits.

For further information, contact 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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