South Africa

Global Compliance Guide

Labor Requirements

The Basic Conditions of Employment Act 75 of 1997 regulates working time, leave, termination of employment, recordkeeping, and prohibition of child labor in South Africa. The Labour Relations Act governs freedom of association, collective bargaining, strikes and lockouts, and other forms of industrial action.

Hours & Pay Regulations

Normal Working Hours

Day means a period of 24 hours measured from the time when the employee normally commences work. An employer may not require or permit an employee to work more than:

      • 45 hours in any week: and 
      • 9 hours in any day if the employee works for five days or fewer in a week; or 8 hours in any day if the employee works on more than five days a week. 

An employee’s ordinary hours of work 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.

 

Employees earning less than the threshold, who work for less than four hours on any day must be paid for at least a minimum of four hours on that day.

 

Reduction of Work Hours

The Act 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 8 ordinary hours of work per day through collective bargaining and the publication of sectoral determinations.

 

Compressed Working Week 

 An agreement in writing may require or permit an employee to work up to 12 hours a day, without receiving overtime pay. An agreement may not require or permit an employee to work:

        • More than 45 ordinary hours of work in any week; 
        • More than 10 hours’ overtime in any week: or 
        • on more than 5 days in any week. 

Averaging of Hours of Work

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. An employer may not require or permit an employee who is bound by a collective agreement to work more than an average of 45 ordinary hours of work in a week over the agreed period and an average of five hours’ overtime in a week over the agreed period. 

 

A collective agreement lapses after 12 months. Section8, 9, 11, 12 of the Employment Act as amended in 2020.

 

Record-Keeping Requirements

Every employer must keep a record containing at least the following information: 

          • The employee’s name and occupation; 
          • The time worked by each employee; 
          • The remuneration paid to each employee; 
          • The date of birth of any employee under 18 years of age: and 
          • Any other prescribed information. 

A record must be kept by the employer for a period of three years from the date of the last entry in the record. Section 31 of the Employment Act.

 

Calculation of Remuneration and Wages

An employee’s wage is calculated by reference to the number of hours the employee ordinarily works. In order to calculate the wage of an employee by hours worked an employee is deemed ordinarily to work:

            • 45 hours in a week unless the employee ordinarily works a lesser number of hours in a week; 
            • 9 hours in a day, or 7.5 hours in the case of an employee who works for more than five days a week, or the number of hours that an employee works in a day in terms of an agreement, unless the employee ordinarily works a lesser number of hours in a day.

An employee’s monthly remuneration or wage is four and one-third times the employee’s weekly remuneration or wage, respectively.

 

If an employee’s remuneration or wage is calculated, either wholly or in part, on a basis other than time or if an employee’s remuneration or wage fluctuates significantly from period to period, any payment to that employee must be calculated by reference to the employee’s remuneration or wage during:

            • the preceding 13 weeks; or
            • If the employee has been in employment for a shorter period, that period. 

Overtime

An employer may not require or permit an employee:

      • To work overtime except in accordance with an agreement; 
      • To work more than 10 hours’ overtime a week. 
      • To work more than 3 hours of overtime in a day.

An employer must pay an employee at least one and one-half times the employee’s wage for overtime worked or an employee may agree to receive paid time off.  A collective agreement may increase overtime to 15 hours per week for up to two months in any period of 12 months. An agreement may provide for an employer to:

        • 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 
        • Grant an employee at least 90 minutes’ paid time off for each hour of overtime worked.

An employer must grant paid time off within one month of the employee becoming entitled to it. An agreement in writing may increase the period contemplated to 12 months.  An agreement to work overtime lapses after one year.  Section 10 Employment Act as amended in 2020

Night Work

Night work means work performed after 18:00 and before 06:00 the next day. 

 

An employer may only require or permit an employee to perform night work, if so agreed, and if the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours. Transportation should be made available between the employee’s place of residence and the workplace at the beginning and end of the employee’s shift. 

 

An employer who requires an employee to perform work on a regular basis after 11 pm and before 6 am the next day must:

      • Inform the employee in writing, or orally 
      • Of any health and safety hazards associated with the work that the employee is required to perform; and 
      • Of the employee’s right to undergo a medical examination.

Employees who perform night work for a period longer than one hour after 11 pm and before 6 am at least five times per month and at least 50 times per year are considered to perform night work on a regular basis. Section 17 Employment Act.

Breaks

An employer must give an employee who works continuously for more than five hours a meal interval of at least 60 minutes. 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. An employee must be remunerated for:

      • a meal interval in which the employee is required to work and required to be available for work; and 
      • 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. 

Work is continuous unless it is interrupted by an interval of at least 60 minutes. An agreement in writing may reduce the meal interval to not less than 30 minutes. An agreement can remove a meal interval for an employee who works fewer than six hours a day.  Section 14 of the Employment Act.

 

Breastfeeding Break

For the first six months after the birth of a child, employees who are breast-feeding should have two 30-minute breaks each workday to breast-feed or express milk. While this is non-binding, courts and tribunals consider them in labor law disputes.

Work On Rest Days

Daily Rest Period

An employer must allow an employee a daily rest period of at least 12 consecutive hours between ending and recommencing work.  The daily rest period may by written agreement be reduced to 10 hours for an employee who lives on the premises at which the workplace is situated and whose meal interval lasts for at least three hours. Section 15 of the Employment Act.

 

Weekly Rest Period

An employer must allow an employee a weekly rest period of at least 36 consecutive hours which. unless otherwise agreed, must include Sunday.

 

An agreement in writing may provide for a rest period of at least 60 consecutive hours every two weeks, or 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. Section 15 of the Employment Act.

Sunday Work

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. 

 

If an employee works less than the employee’s ordinary shift on a Sunday and the payment that the employee is entitled to be less than the employee’s ordinary daily wage, the employer must pay the employee the employee’s ordinary daily wage.

 

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 but is taken into account in calculating the maximum number of daily and weekly overtime ( 3 and 10 respectively) hours worked by the employee.

 

If a shift worked by an employee falls on a Sunday and another day the whole shift is deemed to have been working on 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.

 

Time off in Lieu

Compensation for Sunday work may also be given in the form of paid time off work, in lieu of cash payment. Sunday time, for an employee who does not ordinarily work on a Sunday, does not form part of his ordinary hours of work, or in terms of his employment contract. In other words, if an employee is contracted to work 45 hours per week, but he has only worked 40 hours for the week for whatever reason, the employer cannot demand that he must work 5 hours on Sunday to make up his normal time. Section 16 Employment Act.

Public Holidays

There are 12 paid holidays under the Public Holidays Act. South Africa’s public holidays are:

      • New Year’s Day – January 1
      • Human Rights Day – March 21
      • Good Friday – The Friday before Easter Sunday
      • Family Day – The day after Easter Sunday
      • Freedom Day – April 27
      • Workers’ Day – May 1
      • Youth Day – June 16
      • National Women’s Day – August 9
      • Heritage Day – September 24
      • Day of Reconciliation – December 16
      • Christmas Day – December 25
      • Day of Goodwill – December 26
      • and any other day declared to be a public holiday

* The dates on which Good Friday and Easter Sunday fall are determined according to the ecclesiastical moon. That varies each year but they fall at some point between late March and late April.

 

An employer may not require an employee to work on a public holiday except in accordance with an agreement. If a public holiday falls on a regular working day and he does not work on that public holiday, he is entitled to be paid his normal wage rate for the day.

 

Pay for Work on Holiday

If the public holiday falls on a regular working day and the employee is working on that particular day then he is entitled to be paid a minimum of double his normal wage rate for the day. If he does work on the public holiday, and his normal wage rate plus his wage for the time worked totals more than double his normal wage rate, then he must be paid the higher of the two.

 

If the employee does work on the public holiday, and it is not a day on which he would normally work, the employer must pay that employee a minimum of his ordinary daily wage rate, plus the amount earned by the employee for the work done on that day. Any payment for public holiday work must be made on the employee’s usual payday.

 

Paid time off in return for working on a Holiday may be agreed upon by agreement.  A public holiday can be exchanged for another day off if the employer and the employee agree.

 

If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been working 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. Whenever a holiday falls on a Sunday, the following Monday is considered a public holiday.  Section 2, 3, and 5 of the Public Holiday Act, Section 18 of Employment Act as amended in 2020.

Annual Leave

The annual leave cycle means the period of 12 months’ employment with the same employer immediately following an employee’s commencement of employment or the completion of that employee’s prior leave cycle. 

      • The employer must grant an employee at least 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or
      • If the employee and the employer agree, the worker can take one day of leave for every 17 days worked or one hour of leave for every 17 hours worked.

An employee is entitled to take leave accumulated in an annual leave cycle on consecutive days. An employer must grant annual leave not later than six months after the end of the annual leave cycle.

 

Eligibility

Employees who work 24 hours or more per month are entitled to 21 consecutive days of paid annual leave during every 12-month period they are with the same employer.

 

An employee must generally complete the 12-month leave cycle before taking the leave, although employers have the discretion to change this. Employers cannot pay workers in lieu of taking annual leave, although, on termination of employment, they must pay them for unused leave. Absent an agreement between the employer and employee, the employer can mandate when leave must be taken.  An employer must grant an employee an additional day of paid leave if a public holiday falls on a day during an employee’s annual leave.

 

Pay for Annual Leave

An employer must pay an employee leave pay at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave, calculated at the employee’s rate of remuneration immediately before the beginning of the period of annual leave: and in accordance with the regular rate of pay. For the purposes of calculating an employee’s annual leave pay or severance pay an employee’s remuneration:

        • includes the cash value of any payment in kind that forms part of the employee’s remuneration unless the employee receives that payment in kind; but 
        • Excludes (i) gratuities: (ii) allowances paid to an employee for the purposes of enabling an employee to work; and (iii) any discretionary payments not related to the employee’s hours of work or work performance.

Section 20, 21& 35  of Employment Act

Minimum Wage

Effective Jan. 1, 2020, the national minimum wage will be 20.76 rands per hour.

The above information on minimum wages might not be up to date & subject to change. Kindly access the link for the current rates.

Special Leave

Maternity Leave

Female employees are eligible for 4 consecutive months of maternity leave of which benefits are paid by the Unemployment Insurance Fund. Pregnant employees are entitled to start the leave within four weeks of the due date, or on a date from which a medical practitioner certifies that it is necessary for the employee’s health or that of her unborn child. 

 

Women are not permitted to work for six weeks after giving birth unless certified by a doctor. An employee who suffers a miscarriage during the third trimester of pregnancy or who gives birth to a stillborn child receives six weeks’ leave after the loss, regardless of whether maternity leave had begun.

 

Employees also can receive paid maternity benefits based on a collective agreement or employment contract in which the employer agrees to provide payment above its contribution to the Unemployment Insurance Fund. Employers cannot require or allow pregnant or nursing employees to perform work that is hazardous to their health or that of their children and must if possible provide alternative work. Section 25 & 26 of Employment Act.

Commissioning Parental Leave

An employee, who is a commissioning parent in a surrogate motherhood agreement is entitled to at least ten weeks consecutive commissioning parental leave; or ten consecutive days parental leave when his/her child is born as a result of a surrogate motherhood agreement. Section 25C of Employment Act.

Paternal Leave

An employee, who is a parent of a child, is entitled to at least 10 unpaid consecutive days of parental leave. An employee may commence parental leave on the day that the employee’s child is born; or the date that the adoption order is granted; or that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child, whichever date occurs first.

 

An employee must notify an employer in writing, unless the employee is unable to do so, of the date on which the employee intends to commence parental leave; and return to work after parental leave. The payment of parental benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001). Section 25A of Employment Act.

Adoption Leave

An employee, who is an adoptive parent of a child who is below the age of two, is entitled to adoption leave of at least ten weeks consecutively; or the parental leave referred to in section 25A.  An employee may commence adoption leave on the date 

      • that the adoption order is granted; or 
      • that a child is placed in the care of a prospective adoptive parent by a competent court, pending the finalization of an adoption order in respect of that child, whichever date occurs first.

If there are two adoptive parents, one of the employees is entitled to adoption leave and the other employee is entitled to parental leave. The payment of adoption benefits will be determined by the Minister, subject to the provisions of the Unemployment Insurance Act, 2001. Section 25C of Employment Act

Sick Leave

An employee is entitled to six weeks’ paid sick leave in a period of 36 months. During the first six months, an employee is entitled to one day’s paid sick leave for every 26 days worked. An employer may require a medical certificate before paying an employee who is absent for more than two consecutive days or who is frequently absent.  Section 22-24 of the Employment Act as amended in 2020.

Family Responsibility Leave

Full-time employees who have been in employment with an employer for longer than four months; and who works for at least four days a week for that employer are entitled to 3  days paid family responsibility leave per year, on request, when the employee’s child is born or sick, or in the event of the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. Family responsibility leave time might differ in a collective agreement.

 

An employee may take family responsibility leave in respect of the whole or a part of a day.  An employee’s unused entitlement to leave lapses at the end of the annual leave cycle in which it accrues. Section 27 of the Employment Act.

Voting Leave

During election years, a 13th annual paid public holiday is usually declared to allow workers to vote in local government elections.

Last updated on: September 4th, 2020