Question: Leave and overtime pay

Question:

Our company requires that our artisans work a standby and are paid overtime when called out for duty. Many of them earn above the threshold for overtime, but we still pay same to them. The standby is done on a rotational basis and they average one standby every 6 weeks.
The problem arises that when they take annual leave, which is taken without prejudicing their allocation for standby and resulting overtime, we still have to pay them BECA Leave pay for the “lost” overtime, although they work on the rotation system and are not prejudiced by taking their leave.
Given this situation do we still give them BCEA leave?

Answer
An employer is obliged to grant its employees at least 21 consecutive days annual leave on full remuneration in respect of each 12 months employment cycle.  Section 21 of the Basic Conditions of Employment Act, 1997 requires an employer to pay an employee at least equivalent to the remuneration that the employee would have received for working for a period equal to the period of annual leave.  This is calculated at the employee’s rate of remuneration at the time and if regard is had to Section 35 of the Act, it is only the ordinary hours of work, namely 45 hours per week that (leave) wages have to be calculated and paid at.  Anything paid over and above this is not a legal requirement but an ex gratia payment made by an employer.

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2 Responses to “Question: Leave and overtime pay”

  1. Hi
    I just started a job and i am currently on a 6 months’probation period. Xmas time is coming and I was wondering if I am entitled to paid annual leave since my probation period only ends in Feb 2010.
    Please advise
    Thanks
    Kind regards
    Vee

    • The leave provisions contained in the Basic Conditions of Employment Act, 1997 apply to you during your probation period. Section 20 of the BCEA, provides, inter alia, as follows:

      “An employer must grant an employee at least –

      (a) 21 consecutive days’ annual leave on full remuneration in respect of each annual leave cycle; or

      (b) By agreement, one day of annual leave on full remuneration for every 17 days on which the employee worked or was entitled to be paid;

      (c) By agreement, one hour of annual leave on full remuneration for every 17 hours on which the employee worked or was entitled to be paid.

      An annual leave cycle means the period of 12 months employment with the same employer immediately following an employee’s commencement of employment.”

      The Section also provides that an employer must grant annual leave not later than 6 months after the end of the annual leave cycle.

      It means therefore that you have an entitlement of 21 consecutive days’ annual leave after 12 months’ employment. It also means that you can agree with your employer to enjoy one day of annual leave on full remuneration for every 17 days on which you worked.

      It follows that unless you reach an agreement with your employer on the basis of taking leave over year end, you do not have a legal entitlement thereto at this stage.

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