Working overtime: your rights

Are you being properly compensated for the extra hours you work? We investigate.

Between late nights and mountains of work, it sometimes seems that you never have time to unwind with friends and family. If this sounds familiar, it’s time to investigate your rights when it comes to working overtime. We chat to labour lawyer and partner at Bester and Rhoodie Attorneys Erika Bester about the legalities surrounding overtime.

Types of employees
“There are two types of employees, namely permanent employees and fixed-term employees,” explains Bester. “Fixed-term employees (employees contracted to a company for a specified term) are entitled to the same rights as permanent employees, which include overtime in suitable circumstances.” However, if you are an independent contractor, you are not considered an employee and therefore not entitled to overtime pay.

Can you claim overtime?
Your legal right to claim overtime pay is dependent on your annual salary. According to chapter two of the Basic Conditions of Employment Act (which regulates working hours), overtime pay is applicable to employees earning below the earnings threshold (currently R172 000 or R14 333 a month), says Bester. “Such employees’ working hours are limited to 45 hours per week, with a maximum of nine hours per day if an employee works five days a week or less, and eight hours per day if an employee works more than five days a week. Overtime is voluntary and may only be worked by agreement between employer and employee. Employees may not be required to work overtime for more than 10 hours a week and three hours a day.”
“These employees are entitled to payment of at least one and a half times their ordinary wage for overtime worked (on Sundays and public holidays they are entitled to twice their wage if they do not usually work on these days). An employee who is not being paid for overtime can approach the Department of Labour for assistance,” Bester says.

Employees above the earnings threshold are not entitled to overtime pay, unless they have entered into an agreement to work overtime and to be paid accordingly. “Where such an agreement exists but is not honoured, the employee can institute a civil lawsuit against the employer to claim overtime based on breach of the agreement,” says Bester. According to the South African Labour Guide, employees who earn above the threshold are also entitled to refuse to work overtime unless they have already agreed to do so or have negotiated some form of compensation. Nobody can be forced to work overtime.