Question: May a manager be required to work overtime, on Sundays and public holidays without receiving additional pay?
Answer: Yes, but only if the manager can be regarded as a “senior managerial employee” or if the manager earns in excess of the relevant threshold determined by the Minister of Labour (currently R180 000). This may, however, be superseded by a contract of employment that provides for additional pay in these instances.
Brief explanation: Section 6(1)(a) of the BCEA excludes “senior managerial employees”, as well as and employees earning in excess of the relevant threshold, from the limitations and entitlements that other employees enjoy in relation to working time. For example, generally employees’ normal time is limited to 45 hours per week and overtime to 10 hours per week. They are also entitled to overtime pay and extra pay for work on Sundays and public holidays. Senior managerial employees and employees earning in excess of the relevant threshold do not have these rights.
The hours of work and payment terms that apply to these “senior” employees remain matters for negotiation between the employer an the employee.
But what is a “senior managerial employee”? The definition section in the BCEA describes it as “someone who has the authority to hire, discipline and dismiss employees, and to represent the employer internally and externally”.
Notwithstanding the above, the hours of work must not be so excessive that it is prejudicial to the manager’s health, need for rest and a reasonable family life (section 7 of the BCEA). Furthermore, if the contract of employment contains more favourable terms than what the manager would otherwise be entitled to (e.g. provides that the manager is entitled to overtime pay or extra pay for work on Sundays and public holidays) the more favourable terms will prevail.
Note: These snippets of information are based on frequently asked questions and will be circulated to subscribers on a regular basis. Labourwise subscribers are invited to submit questions on matters that they believe would be of general interest to employers.
Disclaimer: The material above is provided for general information purposes only and does not constitute legal or professional advice. Neither the author nor the publisher accepts responsibility for any loss or damage that may arise from reliance on information contained in this article.
16 Comments
Reply to Heinz: An employee is entitled to a minimum of 21 consecutive calendar days leave per year (i.e. for a five day/wee worker that is 15 working days; for a six day/week worker it is 18 working days). If your contract or past practice is such that she has more days’ leave, then you cannot simply change it unilaterally. You can renegotiate and this could result in several possible outcomes. As far as the question about whether you could require her to work on public holidays without additional compensation, we would require more information about her role and income before being able to comment..
Can someone help please. I have a lady working in a plant nursery mondays to thursdays. If her annual leave is 12 working days and given in december her total leave period is nearly 5 weeks. Can this be right? And secondly, if she is running the nursery and doing the ordering is she not part of senior management and I can thereby have her working on public holidays?
It appears that the contract is somewhat vague on the issue (what is “normally” and what would be considered special circumstances). You would need to get clarity on the matter from your employer about this.
I am generally regarded as being part of ‘middle Management” earning in excess of the threshold and my employment contract says, “overtime will not normally be required”. Can the employer force me to work overtime without any form of compensation?
Employees that earn more than the current threshold (R172 000/annum) or employees that earn less than the threshold but are considered senior managerial employees in terms of the definition of the Act are excluded from the section of the BCEA that regulates overtime. The employer can thus require an employee to work overtime (this should preferably be clarified in the employment contract) without any compensation in the form of overtime pay or time off in lieu of overtime worked.
If an employee earns above the threshold, are they required to work overtime with no compensation or if not paid overtime will they still be compensated with timeoff in leiu of time worked?
Reply to Helna: The working hours of employees earing above the threshold is determined by their contracts of employment. If the contract says that the employee may be required to work on the weekend, then the employer may reasonably require the employee to do so. The employer and employee should negotiate about the details for the sake of clarity.
Reply to David: If you earn above the theshold, the “time and a half” premium (whether paid or time off in lieu of payment)does not apply, unless it has been agreed in the contract of employment.
Are managers who earn above the threshold and who work overtime in lieu of allowed to claim such time as time and a half or do we just get the time we worked back.
Can it be expected of employees earning above the threshold to work on more than 5 days a week? Weekends are not their normal working days and they work more than 48 hrs during the week.
Response to Russell: The underlying reason that senior managers and employees earning above the threshold do not enjoy the same protections and benefits in respect of working time, is that they should have the bargaining power to negotiate their terms and conditions of employment with their employers.
As a Safety Officer / Advisor who contracts and earns above the threshold,do we have to work every weekend when told.Can we negotiate before signing the contract, knowing that we will be required to work longer hour and weekends.
Response to Helna: Working hours for employees earning in excess of the threshold are not regulated. Therefore they can be expected to work more than the normal working days and hours. There is no specified limit to the hours they may be required to work.
Is there an upper limit for the amount of hours that an employee who earns in excess of the threshold, can be expected to work?
May it be expected of such employees to work on more than 5 days a week?
One would have to look at what the contract of employment says. If the manager is in breach, then disciplinary action can be taken. If there is nothing in the contract to go on, it may be a matter of operational requirements, i.e. if there is the need for the manager to work overtime but he/she cannot or is unwilling to do so, the employer may be justified to embark on a procedure that could lead to termination of employment due to operational requirements (retrenchment).
re: overtime for senior managers
what if the senior manager refuse to work overtime? and they are currently working 8hrs a day incl lunch i.e. 7working hours.