How much overtime can you really work?

Working overtime is something that many employment contracts make mention of. But how much overtime can you really work, and how does financial compensation factor into the equation?

Moneybags journalist Jessica Anne Wood, looks at the legalities of working overtime, and your rights when it comes to working overtime.

Following a recent incident where a young doctor reportedly caused an accident by falling asleep at the wheel of a car after being on call at least 24 hours, the spotlight has been focused on the working hours of medical staff, and particularly young doctors.

Madelein Taljaard, development manager at Sage HR & Payroll, notes that overtime is one of the most contentious issues in labour law, with many employers expecting their employees to be at their beck and call all hours of the day. Many workers, meanwhile, resent being asked to work after hours, especially for reasons that are beyond their control.

The law

The Basic Conditions of Employment Act 75 of 1997 deals with the regulations regarding working time. Chapter 2, section 10 of the Act makes special mention of overtime.

When it comes to ordinary working hours, the Act states that “no employer shall require or permit an employee to work more than – 45 hours in any week; nine hours in any day if an employee works for five days or less in a week; or eight hours in any day if an employee works on more than five days in a week.”

When it comes to working overtime, the Act emphasises that an employer cannot require or allow an employee to work overtime unless it is by agreement, and then no more than ten hours of overtime can be worked a week.

Additional hours of overtime can be worked, but there are conditions that need to be met. The Act states: “An agreement may not require or permit an employee to work more than 12 hours on any day. A collective agreement may increase overtime to fifteen hours per week for up to two months in any period of 12 months. Overtime must be paid at 1.5 times the employee’s normal wage or an employee may agree to receive paid time off.”

Your overtime questions answered

Taljaard answers some of the common questions relating to overtime:

  • Who must be paid overtime?

Taljaard highlights that according to the Ministry of Labour, all employees who earn less than R205 433.30 a year are entitled to be remunerated for any overtime worked. “In this case, earnings mean gross pay before deductions but excluding the employer’s contributions to, for example, the worker’s retirement fund or medical insurance,” explains Taljaard.

  • Who is excluded from being paid overtime?

All classes of employees don’t have to be remunerated when they work overtime at an employer’s request. The following categories of employees are not entitled to overtime pay, according to Taljaard:

  • Anyone earning more than R 205 433.30 a year
  • Senior managers
  • Sales representatives who travel to customers’ premises and who regulate their own hours of work
  • Employees who work less than 24 hours a month for you

“However, if you have agreed to pay your employees overtime in your employment contract, then you must do so or else you’ll be in breach of contract,” emphasises Taljaard.

  • How much must you pay for overtime hours?

Employees should be paid at least 1.5 times the usual rate of pay when working overtime. “Alternatively, with the employee’s agreement, you can trade overtime for paid time off on another day,” notes Taljaard.

When it comes to working on a public holiday, it is only with the worker’s agreement. Remuneration for this should be at least double the normal rate, alternatively the time worked can be traded for other paid days off by mutual agreement.

“It’s a good idea to write your rate of overtime pay or the agreement to trade overtime for paid leave into your employment contracts,” advises Taljaard.

  • How many hours of overtime can an employee work each week?

“You should not require – or even permit – workers to work more than three hours overtime a day or 10 hours overtime a week, according to South African labour law,” stresses Taljaard.

  • Can you force employees to work overtime?

Taljaard notes that while this is a tough question, the bottom line is that you cannot usually force an employee to work overtime, unless there is an agreement. “With an agreement in place, a refusal to work the agreed overtime amounts to misconduct. Put a clause about overtime into all of your employment contracts in case you will need it,” suggests Taljaard.

However, Taljaard reveals that the Act does offer employers some leeway when it comes to making employees work overtime.

“If you have work that must be done without delay as a result of circumstances you could not reasonably make provision for and which your team will not be able to complete in their usual hours of work, you can oblige employees to put in the overtime. If they refuse, that could be grounds for disciplinary action. If employees collectively refuse to work agreed overtime, it effectively amounts to industrial action,” adds Taljaard.