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OVERTIME PAY FOR MANAGERS
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 This may, however, be superseded by a contract of employment that provides for additional pay in these instances.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.
Comments
Good day, I have a question my boyfriend works 7 days a week and only gets 1 weekend off a month if he is lucky his average work day is from 6:00 am till about 8-9 pm. He does not get paid over time, he is in a managing position but his salary is only R10 000 a month, and when he get home most of the time is is expected to go out on call outs at odd hours and he also doesn’t get paid for that he is also on standby 27/7 . Is it legal for his to work these hours and not get paid for it. Also a lot of time’s he works longer hours than what I stated above.
The key question is whether he is a “senior managerial employee” as defined by the BCEA, i.e., “someone who has the authority to hire, discipline and dismiss employees, and to represent the employer internally and externally”. If not, he should be paid the relevant premiums for overtime work and work on Sundays and public holidays.
Can a manager who earns a salary of R211425, who can not hire or fire, claim overtime for time worked without prior approval
No, the exclusion applies not only to senior managerial employees, but also employees that earn above the applicable earnings threshold.
Hi i am just a Supervisor of a Factory shop i can hire or fire. I work +-11 hour per day Monday to Friday and Saturday from 7h30 to 12h00 do get lunch but never take it because i can leave the shop alone i get maybe 2 week end off a month if i fight hard enough and someone can stand in for me, i earn R22463.90 before deductions after deductions i get out R18262.56.Please advise me is this correct or not
The limitations and premiums payable in respect of working time would not apply to you. Given the seniority of your position, I suggest you engage with the employer about ways to improve your working conditions.
I work 61 hours a week one day off and no lunch break. I am a senior manager . Is this right. All the another managers get two day off
This does not seem right – even senior managers have the right to fair labour practices. However, we don’t have all the facts. We suggest that you engage with your employer in an attempt to resolve the matter, failing which we recommend that you seek legal advice.
Currently I earn basic of R15051 a month.if you add in Sunday’s and overtime it fluctuates to R19000 and over depending on how many sundays and overtime i work.My question the current threshold is R205000 give or take.Do I FALL into this threshold limit or not
Payments for overtime worked are not regarded as remuneration for the purpose of determining the threshold.
Can an employer force you to act in a higher post without remuneration
No, any changes to terms and conditions of employment have to be agreed.
I currently work from 8am to 11 pm at night I get less than an hour break a day as I need to get back on the floor I only get 1 day off a week I get a basic of R12000 per month I am not a senior manager I don’t get any extra pay for Sundays or public holidays and when we speak to the general manager we get told if you don’t like it there is the door. I never see my wife or son as when I get home they are sleeping. Please what can I do.
This sounds excessive. You could approach the Department of Labour, however. considering your specific circuntances I suggest you approach an attorney who specialises in labour and employment law for advice on how to approach the matter.
Senior Superviser,earning obove the threshold,do not have the power to hire and fire,but Traveling 35 hours at a time on a shift without a 12 hour rest period and not receiving overtime for traveling.Is this allowed as there is no clause saying traveling is nit paid
You need to determine what industry your company falls under. It sounds like you may be working in the Road Freight Industry. If that is so, then the provisions of the Road Freight Industry Bargaining Council would regulate working time, standby time, rest periods, etc.
I am a branch manager at a security company for the past 4 months. I work close to 400 hours a month (one weekend off per month)and earn a salary of R7500 (R4000 basic + R3500 allowance), no extra payment for hours worked. I hire and fire, and apart from finances, is responsible for everything in the company.
Please help with an answer to follow up to get what I rightfully deserves.
Reply to Peter: Your hours seem excessive. Based on the information provided, it seems like you could be regarded as a “senior managerial employee” (even though you do not earn in excess of the relevant threshold). I suggest that you approach the employer to negotiate reduced hours and increased pay for the extra hours.
Good day, I have a question my boyfriend works 7 days a week and only gets 1 weekend off a month if he is lucky his average work day is from 6:00 am till about 8-9 pm. He does not get paid over time, he is in a managing position but his salary is only R10 000 a month, and when he get home most of the time is is expected to go out on call outs at odd hours and he also doesn’t get paid for that he is also on standby 27/7 . Is it legal for his to work these hours and not get paid for it. Also a lot of time’s he works longer hours than what I stated above.
Need help with sorting out my over time Sunday pay public holidays
. I work on average 280 hours a month. 4-5 days off a month. Most days I open at 8 30am and close 10-11 I never take a full 2 hours break. They say I’m senior management yet my pay bracket is very low.
Reply to Astin: If you earn below the threshold and you are not a ‘senior managerial employee’ as defined, you should engage with your employer. If you fail to reach an understanding you could seek legal assistance or approach the Department of Labour.
I may have an interesting question and hope to find the right answers. I am an officer of a company, manage no people, I don’t hire and fire people yet I am forced to work overtime and forced to work while on leave.
Surely there must be laws in place that limits this abuse or is it purely based on negotiating the terms with the employer which could end up in never ending arguments.
Reply to Nick: If you earn below the threshold and you are not a ‘senior managerial employee’ as defined, you should engage with your employer. If you fail to reach an understanding you could seek legal assistance or approach the Department of Labour.
I am a supervisor and are earning less than 180000 a month must the company pay me overtime
Reply to Brian: The relevant threshold now stands at R205433.30 per year. If you earn less and are not a senior managerial employee (i.e. you cannot hire and fire, and represent the compnay internally and externally), then you should be entitled to overtime pay.
We request the case study case law regarding the failure of the employer to pay overtime.
Reply to Mr Mokoena: The right thing to do would be to first approach the employer to discuss the matter, failing wich a complaint can be lodged with the Department of Labour.
We are fire fighters who earns above the threshold,but do night work without getting a night work allowance or time in luie
Reply to John: The right to a night work allowance does not apply to employees earning about the threshold. In the case of fire fighters, even those earning below the threshold could be excluded by virtue of section 6(2) of the BCEA.
Hi, I have an employee that earns a basic salary of R12 000.00 a month. She only works 2.5 days a week.How do I qualify her earnings in relation to the threshold. For example if she worked 5 days a week she would be over the threshold.
Reply to Stephen: The notice only refers to a threshold figure based on annual earnings, irrespective of the number of hours worked – no provision is made for assumed income based on full time employment.
I supervise 7 Child and Youth Care workers at a Youth Development Centre. My Employment Contract states I should be paid overtime and I am not near earning R180 000 per anum. My employer has not paid me a dime overtime since i started in 2010 and when i spoke to them in 2010, they said that i am Senior Management although my contract states i’m a supervisor and currently i earn R10900.00 p/m. I however pay rent for the house i live in. Medical aid, rent, electricity, pension (Perks) is what determines if I should get paid overtime.
Please advise
Edgar
Reply to Edgar: The working hours provisions in the BCEA also don’t apply to someone who is a “senior managerial employee” as defined in the BCEA. It is a factual question as to whether you are covered by the definition or not. We suggest you look at the definition and approach the Department of Labour if you are unable to come to an agreement with your employer.
Hi I’m working as an manager/salesman in an fit ment centre that’s open six days an week Mondays to Friday 08:00 to 17:00 clock and Sat from 08:00 to 13:00 clock.Ido earn R25’000 per month after working for 14years I do not get any over time is this rite……
Reply to Patrick: If you have a meal interval of 1 hour per day your total working hours would amount to 45 hours per week and there would be no overtime. As you earn above the threshold (currently R16000/month), you are not legally entitled to overtime pay in any event.
Hi I am told that I am a senior manager via my GM but on my contract states that I am only a restaurant manager,so does that mean I am not a senior manager?
I really dont know what to do about my hours I work 9-12 hours a day and only have one day of a week?(I work between 280-320 hours a moth)
Reply to Erick: For the purpose of deciding the whether the protections and limitations pertaining to working time apply, the title of your position is not important. What is important is the definition of a senior managerial employee, namely “…. and employee who has the authority to hire, discipline and dismiss employees and to represent the employer internally and externally”.
I worked 155 hours in one month. I am a manager. How many hours can i be forced to work
Reply to Thea: Senior managerial employees (i.e. those who the right to hire and fire and represent the employer internally and externally) or those who earn in excess of the threshold determined by the Minister of Labour do not enjoy the protections and right to be paid a premium in respect of working hours. It is left the employer and employee to negotiate these terms. I suggest you take it up with the employer.
I am in a senior managerial position employed as a Manager and Sales consultant, earning a basic salary as well as a commission also an incentive for achieving our monthly target. all of a sudden I get a letter, Oh brilliant you have had the highest growth in your region for the past financial year. and you will not be earning commission any longer. this after I refused to sign the first contract that excluded the comm as I felt I am being held accountable for making the target by doing both sales and management responsibilities in the first place, also I am being forced to work 15 or more days consecutively. How can that be considered as from time to time or reasonable.
Kind Regards
Patricia
Reply to Patricia: You camnot be “forced” to work 15 or more days consecutively. Also, the employer may not change your terms and conditions of employment unilaterally. We suggest that you see an expert in laobur law for further advice.
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?
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..
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?
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.
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?
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.
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.
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.
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.
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.
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 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.
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?
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.
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.
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).