Employers often assume that their employees should be working 45 hours per week. Subsequently, they implement new contracts and use the phrase “but the law states you should be working 45 hours per week”. This is a common misconception in the workplace.
While the Basic Conditions of Employment Act (BCEA) has certain prescriptions for working hours, it cannot be enforced blindly for all employees.
Here’s why
The BCEA’s specified working hours are NOT applicable to:
- Employees earning more than the determined threshold of R20 5433.30 per year
- Specific sectors governed by bargaining councils with different working hours
- Specific sectors governed by sectoral determinations with different working hours
The BCEA provides the following in terms of working hours:
The maximum normal working hours allowed are 45 hours weekly (excluding overtime).
This usually amounts to 9 hours per day (excluding lunch break) if the employee works a 5-day week, and 8 hours per day (excluding lunch break) if the employee works more than 5 days per week.
It should be noted that this does not mean that the employee must automatically work 45 hours per week normal time.
The amount of normal time worked is determined by the contractual agreement entered into between employer and employee at the conception of the employment relationship.
Some employees may for example, only work a 40 hour week as per their contract, or as per common practice (terms and conditions established by a specific practice which has become consistent over time). The statutory limitation of 45 hours per week means that the employee may not work more than 45 hours per week normal time.
A lunch break is unpaid time and is the employee’s own time – they leave the premises or do as they please.
Therefore, an employee who works a 5 day week and who receives a lunch break of 1 hour daily will actually be at the workplace for 50 hours weekly (45 hours normal working time plus 5 hours daily lunch breaks.).
Should an employer implement a new employment contract amending the above, it would amount to a unilateral change in the employment terms and conditions thus allowing the employees to embark on a strike action in terms of Section 64 of the Labour Relations Act. It may even be viewed as a termination of the original employment contract in totality, thus amounting to unfair dismissal in specific cases.
ABOUT THE AUTHOR
Dyllan Jankielsohn is a SEESA Labour Legal Advisor at our Bloemfontein office. He obtained his LLB degree from the University of the Free State. He is an admitted attorney of the High Court of South Africa and has over 3 years experience in the field of labour law.
