UNDERSTANDING OVERTIME OBLIGATIONS OF THE EMPLOYER
- 21 hours ago
- 4 min read
Johan van Deventer, KZN, Regional Manager, Labournet
When an employee’s terms and conditions of employment are regulated by the Basic Conditions of Employment Act, 75 of 1997 (BCEA), overtime is an area that is often misunderstood and incorrectly applied.
This article focuses on key BCEA considerations relating to overtime. Bear in mind that a different position may apply where a sectoral determination or a bargaining council main agreement is applicable to the employer.
Applicability of Section 10 of the BCEA
Section 10 of the BCEA regulates overtime and applies only to employees who earn below the BCEA earnings threshold, which as of 1 May 2026 stands at R 269 600.90 per annum.
Where an employee earns above the earnings threshold, Section 10 must be ignored in its entirety.
This means, for example, that if such an employee agrees to work overtime, the employee is not entitled to statutory overtime compensation. Similarly, the statutory limits placed on the number of overtime hours that an employee may be required to work on a daily or weekly basis do not apply to employees earning above the threshold.
What constitutes overtime?
Common mistakes that employers make include believing that overtime is only payable once an employee has worked more than the statutory maximum of 45 ordinary hours per week, or that overtime can be avoided if the employee’s average working hours over a month do not exceed 45 ordinary hours per week (195 hours per month). This belief is incorrect.
While the BCEA provides that the maximum ordinary hours of work may not exceed 45 hours per week, an employee’s ordinary hours of work are determined by what the parties agreed to, up to that maximum.
For example, if an employee’s agreed ordinary working hours are 40 hours per week, and the employee is required to work an additional five hours, those five hours constitute overtime, even though the employee did not exceed 45 hours for the week. Overtime is defined as work performed outside the employee’s agreed ordinary hours, not only work in excess of 45 hours.
Overtime must therefore be assessed on a daily basis. If an employee is required to work beyond their agreed daily working hours, those additional hours are overtime and must be compensated accordingly.
Ordinary Hours Must Be Clearly Defined
Employers cannot intentionally leave working hours vague or fail to agree on ordinary hours in an attempt to create flexibility and avoid paying overtime. Section 29 of the BCEA requires employers to provide written particulars of employment, including the employee’s ordinary hours of work.
Having clearly defined ordinary hours ensures that there is certainty about when overtime begins, with any hours worked outside of the agreed ordinary hours then clearly constituting overtime.
When calculating ordinary hours, it is also important to remember that meal intervals and breaks do not constitute working time and must not be included when assessing compliance with statutory working hour limits.
Limits on Overtime Under Section 10
Where Section 10 applies (i.e. employees earning below the earnings threshold), it places clear limits on overtime:
An employer may not require an employee to work more than ten hours of overtime per week.
An employee may not work more than 12 hours in a day in total.
The 12-hour limit includes ordinary hours plus overtime. The number of overtime hours that an employee may work on a specific day therefore depends on how many ordinary hours the employee works on that day.
Consent to Work Overtime
Section 10 also requires an employee’s consent before overtime may be worked.
To avoid having to obtain consent on each occasion, employers often include a general overtime consent clause in the employment contract.
However, this comes with an important qualification: Where such a clause was agreed to within the first three months of employment, the consent will automatically lapse after 12 months. This is a once-off occurrence. Once the consent has lapsed, the parties may simply enter into a new overtime agreement, which will then remain valid indefinitely.
This limitation applies only to employees earning below the earnings threshold. For employees earning above the threshold, an overtime agreement never lapses.
Employers should therefore always ensure that a valid overtime agreement is in place before taking disciplinary action for refusing to work overtime. In the absence of a valid agreement, an employee is entitled to refuse. Even where consent exists, a refusal to work overtime may still be reasonable if the employee has a legitimate and reasonable explanation.
Compensation for Overtime
Section 10 provides three lawful methods for compensating employees for overtime:
Payment at 1.5 times the employee’s normal wage (this is the default position where the contract is silent).
Payment at the employee’s normal rate plus 30 minutes’ paid time off for every hour of overtime worked (this alternative must be agreed to in writing).
90 minutes’ paid time off for every hour of overtime worked, with no additional monetary payment (this alternative must be agreed to in writing).
Paid time off must be granted within one month of the employee becoming entitled to it, unless the parties agree in writing to extend this period to 12 months. If the employee’s employment terminates before taking the accrued paid time off, it must be paid out in the same manner as annual leave.
Special Rules for Small Businesses
Employers who employ fewer than ten employees must read the BCEA together with Ministerial Determination 1: Small Business Sector, which amends certain overtime provisions.
Key differences include:
Weekly overtime may be up to 15 hours, instead of the usual ten.
The employer may pay 1.3 times the normal wage for the first ten hours of overtime worked per week.
Overtime worked beyond ten hours (up to 15) must be paid at 1.5 times the normal wage.
There are exclusions, and the determination does not apply to domestic workers employed in private homes or where another law takes precedence. Small business employers are encouraged to familiarise themselves with this determination.
Practical Steps Forward
Overtime is one of the most frequently misapplied areas of the BCEA and exposes employers to risk if handled incorrectly. Employers should regularly review their overtime practices, employment contracts and policies to ensure legal compliance.
If you are unsure whether your overtime provisions are lawful, or whether the BCEA applies to your employees, taking advice from a qualified labour law practitioner is always the better course of action.
T: +27 (0)31 266 6570
M: +27 (0)82 786 7480
Comments