WHO IS ENTITLED TO OVERTIME PAYMENT? by Alwyn Annandale

 The Basic Conditions of Employment Act (75 of 1997), read with Sectoral Determination 13 (Agricultural Sector), lays down the minimum requirements upon which an employer must agree with his/her employees. The Act provides, inter alia, that certain employees must be excluded from Chapter 2, which regulates working hours. A distinction is therefore drawn between employees who work normal working hours, senior management and management and employees who work less than 24 (twenty-four) hours per month. An important difference between these employees, as laid down in the Act, is the determination of how overtime is worked and remunerated.

EMPLOYEES BELOW THE INCOME THRESHOLD

Only employees who are earning less than the income threshold are entitled to overtime payment. The income threshold is laid down by the Minister of Employment and Labour. The income threshold currently stands at R211 596,30.

The Basic Conditions of Employment Act provides that an employer may only require an employee to work overtime if they have an agreement in this regard. The determination of overtime is also only valid for twelve (12) months and must be renewed annually. It is, therefore, important to insert a clause in an employee’s service contract that deals with the working of overtime.

HOW DOES PAYMENT FOR OVERTIME WORK?

The employee must receive 1,5 times his normal hourly rate for any hours worked in excess of his normal daily or weekly hours. If the additional financial remuneration is not affordable, the employer has two alternatives, namely:

• To give the employee time off on the principle that for every one (1) hour of overtime worked the employee must be given one (1) hour and thirty (30) minutes off, or
• the employer could pay the normal hourly rate for one (1) hour and only give time off for the remaining thirty (30) minutes.

A maximum of fifteen (15) hours per month of overtime may be worked in the agricultural sector.

EMPLOYEES WHO ARE OVER THE INCOME THRESHOLD

There is no legal obligation to remunerate an employee who earns over the income threshold of R211 596,30 in any way for overtime worked. The remuneration rate of 1,5 times the normal hourly rate is not applicable in the case of such an employee either. It is advisable, however, that an agreement should be reached with an employee on the terms and conditions with regard to overtime that will be applicable to employees in this category.