The current working environment within South Africa may appear to be desperate as finding employment is a rare and sought-after opportunity. According to Statistics South Africa, the current rate of unemployment within the country sits at 34.5% within the first quarter of 2022. However, although this may be an improvement from the previous quarter, it does not at all alleviate the burden on South African households. The South African workforce is under constant pressure, be it from employers to keep costs low and maximise profit or from the cost of living. Employers may feel the need to encourage employees to put in overtime and work beyond their contractual obligations, however, they should be warned that such expectations may place them in a potentially liable situation in terms of the Basic Conditions of Employment Act No. 75 of 1997 (BCEA). Despite the constricting workforce in the country, South Africa has quite well-developed labour legislation in place to protect the interests of employees.
South Africa’s labour law legislation is made up of the Basic Conditions of Employment Act No. 75 of 1997 (BCEA); the Employment Equity Act No. 55 of 1998 (EEA) as well as the Labour Relations Act No. 66 of 1995 (LRA). These acts cover several aspects relating to labour law, however, for the purpose of this article, the Basic Conditions of Employment Act No. 75 of 1997 (BCEA) is the piece of legislation which interests us. Section 9 of the BCEA sets out the ordinary working hours of an employee. The BCEA states that: “an employer may not require or permit an employee to work more than (a) 45 hours in any week; (b) nine hours in any day if the employee works for five days or fewer in a week; or (c) eight hours in any day if the employee works on more than five days in a week”. The Act sets out clear boundaries for the working hours of employees and ensures that work hours which exceed such hours are reflected in an employment contract may not be legally enforceable. One should always bear in mind that it is not possible to contract out of the law. This means that a contract be it an employment contract or contract of another nature may not seek to include terms which are contrary to the law.
The law however is not applied in a vacuum and section 9 of the BCEA does indeed make room for exceptions thereto. The South African workforce is under significant strain. Employers and employees should be mindful of this when negotiating the terms of their employment contracts. It is advisable to retain legal assistance when attending to the drafting of these contracts to ensure that all parties are protected.
Should you require any assistance in any labour-related matter or any other aspect of the law, contact us and we will gladly assist.
Saeedah Salie
saeedah@bbplaw.attorney
Associate
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