Work vs Family time

Maternity leave

Section 25(1) of the Basic Condition of Employment Act, No. 75 of 1997 provides that en employee is entitled to a minimum of four consecutive months’ maternity leave. No obligation to pay the employee’s salary during her maternity leave is created in the legislation.

Section 25 further provides that an employee may commence maternity leave four weeks before the expected birth and may not return to work for six weeks after the birth, unless certified fit to do so by a medical practitioner or nurse. An employee who miscarries during her third trimester is entitled to six weeks maternity leave after the miscarriage.

An employee must communicate in writing her maternity leave dates to her employer at least 4 weeks prior to commencement of maternity leave or as soon as reasonably possible.

Working hours and Overtime

The parties may agree on the working hours of the employee. Such agreement must be in accordance with statutory provisions such as section 10 of the Basic Conditions of Employment Act, No. 75 of 1999.

Section 10(1) states that an employer may not require or permit an employee to work overtime except in accordance with agreement. The parties may agree that the employee must work overtime. Where employees are only obliged to work overtime in special circumstances, such an arrangement must be strictly adhered to. Where no agreement about overtime is reached, an employee cannot be compelled to work overtime unless there is an emergency. If an employee’s contract provides for overtime and s/he refuses to work overtime, with justifiable reason, such refusal would not constitute sufficient grounds to dismiss him/her.

Section 10(1) also states that an employer may not require or permit an employee to work more than ten hours of overtime a week. It further provides that an employee may not be required to work for more than 12 hours on any day.

Section 10(2) provides that an employer must pay an employee a minimum of one and a half times the employee’s wage for overtime worked.

Section 10(3) stipulates that an agreement may provide for an employer to pay an employee his/her ordinary wage for overtime worked and grant the employee at least 30 minutes’ time off on full pay for every hour of overtime worked. Alternatively, an agreement may be reached that an employee should be granted at least 90 minutes’ paid time off for each hour of overtime worked.

Section 10(4) says that an employer must grant paid time off within one month of the employee becoming entitled to it. This provision may be altered by agreement to allow the employer one year to grant the paid time off.

Section 10(5) states that an agreement regarding overtime lapses after one year.

Section 10(6) provides that a collective agreement may increase the maximum permitted overtime to 15 hours a week. Such a collective agreement may not apply for more that two months in any year.

Application of this section:

Section 10 does not apply to:

• senior managerial employees;
• employees engaged as sales staff who travel to customers’ premises and regulate their own working hours;
• employees who work less than 24 hours a month for their employer.

Section 10 does not apply to work which has to be done immediately because of circumstances for which the employer could not reasonably have been expected to make provision. Furthermore, section 10 does not apply to work which cannot be performed by employees during their ordinary working hours.

On 14 March 2003, the Minister determined that all employees earning more than R115 572,00 annually must be excluded from section 10 of the Basic Conditions of Employment Act, No. 75 of 1999. This determination came into effect on 24 March 2003. [Note: ‘Earnings’ means gross pay before deductions such as income tax, pension and medical payments made by the employer in respect of the employee].