Calls for ‘extra’ public holiday in December – what it means for wages and pay

The Federation of Unions of South Africa (Fedusa) has written to president Cyril Ramaphosa, requesting an additional paid Public Holiday in December 2022. This could lead to employers having to pay for up to three days of labour without any work being done.

The appeal for the additional holiday comes after the realisation that Christmas Day will fall on a Sunday this year – meaning that working South Africans will only enjoy 11 out of the 12 paid public holidays they are entitled to under the Public Holidays Act, 1994.

According to section 2(1) of the Act, “whenever a public holiday falls on a Sunday, the following Monday shall be a public holiday”.

However, Monday following the 25 December 2022 is already a public holiday (Day of Goodwill), meaning workers do not get the benefits of 12 public holidays this year as two days would fall on the same day.

According to law firm Bowmans, declarations of a public holiday rest entirely with the elected president at the time through proclamation in the Government Gazette (Gazette) in terms of section 2A.

This raises questions as to whether or not 27 December will be declared a public holiday, and if so, how it will affect employee remuneration.

Depending on how a given business structures its work days, the appeal by Fedusa could lead to a costly three days for employers in December 2022.

The Impact on employee remuneration

Bowmans noted that it is essential for businesses to consider the Basic Conditions of Employment Act 9 of 1997 (BCEA). The BCEA addresses how employers should pay wages for employees who work on Sundays and public holidays.

The law firm said that under the BCEA, employers must pay employees who work on Sundays double the wages for each hour worked – unless the employee ordinarily works on a Sunday – in which case the employee gets one and a half times the wages for each hour worked.

Additionally, the BCEA provides that an employer may not require an employee to work on a public holiday unless the employee has agreed to work. Where such an agreement is made, employees are usually affected in one of two ways:

• If the public holiday occurs on a day the employee is expected to work, then the employee is entitled to be paid a minimum of double the standard wages for the day or the standard daily wage plus the wage for the time worked on the holiday, whichever is higher; or

• If the employee is not ordinarily expected to work on that public holiday but is requested to do so, they must be paid their standard daily wage plus the wage for the time worked on the holiday.

In contrast, the Act states that employees who do not work on public holidays that fall on days they would ordinarily work are entitled only to their standard wage for the day without having the day allocated as annual leave, said Bowmans.

However, on occasions such as this year, where the public holiday falls on a Sunday, it may be challenging to determine employee wages as set out in the BCEA, as in the case of Randfontein Estates Limited v the National Union of Mineworkers (2008) 29 ILJ 998 (LAC).

According to Bowmans, in this case, Randfontein Estates agreed with its employees that Sundays should be treated as regular working days but that public holidays should not be treated as such. Here, the Workers’ Day public holiday fell on a Sunday and was observed on the following Monday.

Work ceased on Sunday and Monday, and the National Union of Mineworkers demanded that its members be paid for the Sunday and Monday holidays.

Consequently, the Labour Appeal Court held that if a public holiday falls on a Sunday, and a Sunday is a normal working day, then the employee who does not work on that Sunday and the following Monday will be entitled to receive standard pay for both days, said Bowmans.

However, the court added that if the employee worked on Sunday, Monday, or both days, then the employee would be entitled to at least double the standard rate for both days, added Bowmans.

This ruling by the Labour Appeal Court has set a precedent.

If 27 December 2022 was to be declared a public holiday, employers, at minimum, would have to pay employees two days of labour without any work being done (Monday and Tuesday) and three days if Sunday is considered a working day.

The remuneration costs would double if employers requested employees to work on these three days in December.

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