A reader wants to know if it's legal, in their new position, not to earn double pay for working on Sundays and public holidays. They write:
I'm in the process of accepting a job offer. The employer informed me that due to it being a management role, I would not be entitled to double pay for working on Sundays and public holidays.
I also won't be paid for working overtime.
Is this legally correct?
Jan Truter, Managing Director at Labourwise responds:
Yes, but only if the manager can be regarded as a "senior managerial employee", or if the manager earns over the relevant threshold determined by the Minister of Labour from time to time (currently R211 596 per annum, or R17 633 per month).
This may, however, be superseded by a contract of employment that provides for additional pay in these instances.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 Basic Conditions of Employment Act (BCEA) excludes "senior managerial employees", as well as employees earning in excess of the relevant threshold (we shall refer to these categories collectively as "senior" employees), 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, work on public holidays and night work. Senior employees do not enjoy all these rights.
One exception is pay for a public holiday that falls on a day on which the employee would normally work – here senior employees enjoy the same rights as other employees; but such rights do not apply in the case of work on public holidays on which the employee would not normally work.
Technically speaking, there is no such thing as 'overtime' where senior managers are concerned, since it is the BCEA that has introduced concepts such as normal working hours and overtime.
It is easy to determine who earns above the threshold, 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".
The hours of work and payment terms that apply to "senior" employees are matters for negotiation between the employer and the employee.
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.
Questions may be edited for brevity and clarity.
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