A frequently asked question by employers relates to the legalities of work and payment requirements for public holidays. A public holiday is deemed a day of rest, and as such payment for work performed on this day differs from payment for work done on an ordinary day. As legislation prescribes, payment for work conducted on a public holiday is always higher than an ordinary day’s wage, due to the fact that a public holiday is a day of rest and that employees working on this day should benefit from being deprived of the legislated day off.
Below I will be discussing two legal aspects, one being work conducted on a public holiday, and the other being payment for work conducted on a public holiday.
Working on a public holiday:
The Basic Conditions of the Employment Act (Section 18) states:
1. An employer may not require an employee to work on a public holiday expect in accordance with an agreement.
From the above it is clear that an agreement must be in place for an employee to work on a public holiday, it is advisable that the agreement be in writing to avoid risk and to serve as proof of what the agreement was. It is advisable to have a clause within the employment contract governing work on a public holiday; a written policy stipulating the rule regarding work on a public holidays; or a signed addendum added to the employment contract governing work on a public holiday.
The Basic Conditions of Employment Act further stipulates that in terms of section 2
(2) of the Public Holidays Act (36 of 1994), a public holiday is exchangeable for any other day which is fixed by agreement or agreed to between the employer and the employee.
Therefore, the employer and employees may agree to work on the public holiday for ordinary wages and move the public holiday to an alternate day. For example; this generally occurs in an instance where the public holiday falls on a Thursday/Tuesday and the employees and employer due to operational needs and requirements elect to work on the Thursday/Tuesday holiday and move the public holiday to the Friday/Monday, to create a long weekend.
Payment for work on a public holiday:
Section 18 of the Basic Conditions of the Employment Act states the following:
(2)If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay –
(a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;
(b) an employee who does work on the public holiday--
(i) at least double the amount referred to in paragraph (a); or (ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.
(3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to--
(a) the employee's ordinary daily wage; plus (b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.
Examples for the above:
The employee will earn their ordinary salary for the day plus the hours worked on the actual day over and above the ordinary salary.
(4) An employer must pay an employee for a public holiday on the employee's usual pay day.
(5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked 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.
As seen above, an employee who works over a public holiday benefits financially due to the higher wage earned.
It is the company’s discretion whether operations will continue over the public holidays or not. This will be based on the operational needs and requirements of the company.
In conclusion, work on a public holiday cannot be enforced without an agreement and disciplinary action cannot be instituted against an employee not willing to perform work over a public holiday in the absence of an agreement. It is important for companies belonging to a bargaining council to familiarise themselves with the relevant main agreement as the terms and conditions in respective of public holidays may differ to that of the Basic Conditions of Employment Act.
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