BCEA – Public holidays

The relevant section is section 18 of the Basic Conditions of Employment Act (BCEA).

1. An employer may not require an employee to work on a public holiday except in accordance with an agreement (this means – an employee only works on a public holiday if he agrees to work it).
2. If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay –
   1. 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;
   2. 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. In other words, If the public holiday happens to be the employee’s normal shift, then that the employee is entitled to be paid a minimum of double his normal wage rate for the day. If he does not work on that public holiday, he is entitled to be paid his normal wage rate for the 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 –
   1. the employee’s ordinary daily wage; plus
   2. the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.
   3. 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. 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.
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.

With night shift workers, part of the work may be done on an ordinary day and part on a public holiday (after midnight). The whole shift will be deemed to be worked on the public holiday, except if the hours worked before midnight are greater than the hours worked after midnight.

Explanations:

The conditions in section 18 apply to ALL employees – namely permanent employees, temporary employees, fixed term contract employees, the so-called “independent contractor” employee, project-employed employees, employees on basic salary, employees on basic salary plus commission and employees earning commission only. There is absolutely nothing whatsoever in section 18 which excludes any class of employee.

The earnings threshold per annum determined by the Minister, states that employees earning over that amount are excluded from section 18 (3) only – the remainder of the section still applies to that class of employee.

Section 18 (3) deals only with the amount to be paid to employees who earn under the threshold amount, if the employee works on a public holiday on which he would not ordinarily work. Thus, all employees, whether earnings are above or below the threshold amount, are entitled to public holidays.

The entitlement is to have the day off on full pay. The employee does not require the employer’s consent to have the day off on full pay – the law states that he can have the day off on full pay.

If the public holiday falls on the day on which an employee would normally work – like the day after Easter is a Monday, and is a public holiday, Monday is a day which most employees would normally work if it wasn’t a public holiday – the employer is bound by section 18 (2) (a) to pay that employee his normal wage for the day if the employee does not work on that day.

If the employee works on that Monday or any other public holiday, the employer must pay in at least double his normal wage rate for the day (section 18(b) (1)), or, if it is greater, his normal wage rate for the day plus the amount earned by the employee for the time worked on that day. This can happen with hourly paid workers.

If an employee works on a public holiday on which he would not normally work – for example, he works in a restaurant and they are normally closed on a Monday, or the public holiday happens to not be his normal shift – then the employer must pay that employee his ordinary daily wage, plus the amount earned by the employee for the work performed on that day. This may be an additional day’s wages, or it may be calculated by time in the case of an hourly paid employee.

Any payment for work done on public holidays must be paid to the employee on his usual payday. It should also be noted (regarding night shift workers) that if the shift worked by the employee falls on a public holiday and another day (such as night shift on Easter Monday – the shift is partly Easter Monday, and partly Tuesday which is not a public holiday) then if the greater part of the shift was worked on the public holiday, the whole shift is deemed to have been worked on the public holiday.

If the greater part of the shift falls on the other day, then the whole shift is deemed to have been worked on the other day.

What about the exchange of a public holiday for another day, by agreement with the employee?

The permission to exchange is not regulated in the BCEA. It is regulated in the Public Holidays Act, and therefore has nothing to do with the payment for the public holiday. The Public Holidays Act states that, by agreement with the employee, a public holiday may be exchanged for another day.

As an example, let us take Easter Monday. This is a public holiday, but the employer requires his employees to work on Easter Monday.

If the employees take Easter Monday off, they are entitled only to be paid to their normal wage for the day.

Therefore, the employer can say to them that he would like them to work on Easter Monday, without receiving double pay for working on that day, and they can take another day off on full pay in substitution for Easter Monday.

If the employee works on Easter Monday without exchanging it for another day, he gets 2 days paid for working Easter Monday.

If the employee works on Easter Monday for a normal wage, and they take another day off on full pay, that also amounts to 2 day’s pay.

Therefore there is no loss to the employees, and there is no financial gain to the employer.

What happens when the public holiday is a Sunday, and the Monday is declared a holiday?

Case number JR 1218/05, held in the Labour Court, Johannesburg, between Randfontein Estates Ltd v National Union of Mineworkers:

The question was asked whether it was one public holiday or two public holidays?

The court ruled that the provisions of the Public Holidays Act are quite clear. The Public Holiday act states that “the days mentioned in schedule 1 shall be public holidays, and whenever any public holiday falls on a Sunday, the following Monday shall be a public holiday.”

The act goes further to define a public holiday as “the days mentioned in schedule 1 and any other day declared to be a public holiday under section 2K”.

From the above, the Court found that the Monday is a public holiday additional to the public holiday on the Sunday.

Thus the answer is: if a public holiday falls on a Sunday, then the following Monday is a public holiday, and there are thus 2 public holidays – namely the Sunday and Monday.