Chapter Two: Regulation of Working Time

6. Application of this Chapter

1. This Chapter, except section 7, does not apply to--

   1. senior managerial employees;
   2. employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work;
   3. employees who work less than 24 hours a month for an employer.



2. Sections 9, 10(1), 14(1), 15(1), 17(2) and 18(1) do not apply to work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work.

3. The Minister must, on the advice of the Commission, make a determination that excludes the application of this Chapter or any provision of it to any category of employees earning in excess of an amount stated in that determination.

4. Before the Minister issues a notice in terms of subsection (3), the Minister must--

   1. publish in the Gazette a draft of the proposed notice; and
   2. invite interested persons to submit written representations on the proposed notice within a reasonable period.

7. Regulation of working time

Every employer must regulate the working time of each employee--

1. in accordance with the provisions of any Act governing occupational health and safety;
2. with due regard to the health and safety of employees;
3. with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87(1)(a); and
4. with due regard to the family responsibilities of employees.

8. Interpretation of day

For the purposes of sections 9 to 16, "day" means a period of 24 hours measured from the time when the employee normally commences work, and `daily' has a corresponding meaning.

9. Ordinary hours of work

1. Subject to this Chapter, an employer may not require or permit an employee to work more than--

   1. 45 hours in any week; and
   2. nine hours in any day if the employee works for five days or fewer in a week;
   3. eight hours in any day if the employee works on more than five days in a week.



2. An employee's ordinary hours of work in terms of subsection (1) may by agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.

3. Schedule 1 establishes procedures for the progressive reduction of the maximum ordinary hours of work to a maximum of 40 ordinary hours of work per week and eight ordinary hours of work per day.

10. Overtime

1. Subject to this Chapter, an employer may not require or permit an employee--

   1. to work overtime except in accordance with an agreement;
   2. to work more than ten hours' overtime a week.

1. A) An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day.

2. An employer must pay an employee at least one and one-half times the employee's wage for overtime worked.

3. Despite subsection (2), an agreement may provide for an employer to--

   1. pay an employee not less than the employee's ordinary wage for overtime worked and grant the employee at least 30 minutes' time off on full pay for every hour of overtime worked; or
   2. grant an employee at least 90 minutes' paid time off for each hour of overtime worked.


4. 1. An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it.
   2. An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.



5. An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.

6. 1. A collective agreement may increase the maximum permitted overtime to 15 hours a week.
   2. A collective agreement contemplated in paragraph (a) may not apply for more than two months in any period of 12 months.

11. Compressed working week

1. An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of section 14, without receiving overtime pay.

2. An agreement in terms of subsection (1) may not require or permit an employee to work--

   1. more than 45 ordinary hours of work in any week;
   2. more than ten hours' overtime in any week; or
   3. on more than five days in any week.

12. Averaging of hours of work

1. Despite sections 9(1) and (2) and 10(1)(b), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement.

2. An employer may not require or permit an employee who is bound by a collective agreement in terms of subsection (1) to work more than--

   1. an average of 45 ordinary hours of work in a week over the agreed period;
   2. an average of five hours' overtime in a week over the agreed period.



3. A collective agreement in terms of subsection (1) lapses after 12 months.

4. Subsection (3) only applies to the first two collective agreements concluded in terms of subsection (1).

13. Determination of hours of work by Minister

1. Despite this Chapter, the Minister, on grounds of health and safety, may prescribe by regulation the maximum permitted hours of work, including overtime, that any category of employee may work--

   1. daily, weekly or during any other period specified in the regulation; and
   2. during a continuous period without a break.



2. A regulation in terms of subsection (1) may not prescribe maximum hours in excess of those permitted in sections 9 and 10.

3. A regulation in terms of subsection (1) may be made only--

   1. on the advice of the chief inspector appointed in terms of section 27 of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), or the chief inspector appointed in terms of section 48 of the Mine Health and Safety Act, 1996 (Act No. 29 of 1996); and
   2. after consulting the Commission.

14. Meal intervals

1. An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.

2. During a meal interval the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee.

3. An employee must be remunerated--

   1. for a meal interval in which the employee is required to work or is required to be available for work; and
   2. for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.



4. For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes.

5. An agreement in writing may--

   1. reduce the meal interval to not less than 30 minutes;
   2. dispense with a meal interval for an employee who works fewer than six hours on a day.

15. Daily and weekly rest period

1. An employer must allow an employee--

   1. a daily rest period of at least twelve consecutive hours between ending and recommencing work; and
   2. a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday.



2. A daily rest period in terms of subsection (1)(a) may, by written agreement, be reduced to 10 hours for an employee--

   1. who lives on the premises at which the workplace is situated; and
   2. whose meal interval lasts for at least three hours.



3. Despite subsection (1)(b), an agreement in writing may provide for--

   1. a rest period of at least 60 consecutive hours every two weeks; or
   2. an employee's weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently.

16. Pay for work on Sundays

1. An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one-half times the employee's wage for each hour worked.

2. If an employee works less than the employee's ordinary shift on a Sunday and the payment that the employee is entitled to in terms of subsection (1) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage.

3. Despite subsections (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subsections (1) and (2).

4. Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of section 9(1) and (2), but is taken into account in calculating the overtime worked by the employee in terms of section 10(1)(b).

5. If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day.

6. 1. An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it.
   2. An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

17. Night work

1. In this section, "night work" means work performed after 18:00 and before 06:00 the next day.

2. An employer may only require or permit an employee to perform night work, if so agreed, and if--

   1. the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and
   2. transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.



3. An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must--

4. 1. inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands--
   2. 
      
      1. of any health and safety hazards associated with the work that the employee is required to perform; and
      2. of the employee's right to undergo a medical examination in terms of paragraph (b),
   
   

   3. at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards--

      1. before the employee starts, or within a reasonable period of the employee starting, such work; and
      2. at appropriate intervals while the employee continues to perform such work; and
   
   

   4. transfer the employee to suitable day work within a reasonable time if--

      1. the employee suffers from a health condition associated with the performance of night work; and
      2. it is practicable for the employer to do so.
      '
   
   



5. For the purposes of subsection (3), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year.

6. The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations for employees who perform night work.

18. Public holidays

1. An employer may not require an employee to work on a public holiday except in accordance with an agreement.

2. If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay--

   1. an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;
   2. an employee who does work on the public holiday--
      
      
      1. at least double the amount referred to in paragraph (a); or
      2. if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.



3. If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to--

   1. the employee's ordinary daily wage; plus
   2. the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.



4. An employer must pay an employee for a public holiday on the employee's usual pay day.

5. If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.