The Portfolio Committee on Employment and Labour is considering amendments to South Africa’s public holiday pay regulations to clarify confusion that may disadvantage workers.<\/p>\n\n\n\n
During a committee meeting this week, members were presented with points of confusion in the Basic Conditions of Employment Act (BCEA) relating to wording on pay for workers on public holidays.<\/p>\n\n\n\n
Under the BCEA, workers who agree to work on a public holiday are entitled to higher earnings. <\/p>\n\n\n\n
In most interpretations of the law, earnings on public holidays are at least double<\/strong> the worker’s normal rate, but the Parliamentary Legal Service has flagged ambiguity in the wording.<\/p>\n\n\n\n Section 18 of the BCEA states that:<\/p>\n\n\n\n In practical terms, this section typically means that an employee working on a public holiday is either paid double their usual pay, or their base pay plus whatever they earn on the day, so long as it is more than double their usual pay.<\/strong><\/p>\n\n\n\n However, while 2(b)(i) makes it very clear that the pay should be at least double the worker’s normal pay, there is some ambiguity in 2(b)(ii), where it is not completely clear what ‘it’ or the ‘greater’ refers to.<\/p>\n\n\n\n Committee members argued that this could allow employers to interpret the laws unfavourably for workers, such as setting a scale that would prevent workers from earning as much as they could.<\/p>\n\n\n\n The committee noted that while there has been no litigation related to this, the syntactical issue does create “semantic ambiguity”. <\/p>\n\n\n\n Therefore, they called for an amendement to the wording to make it “crystal clear” that the law reflects that workers should be paid the greater of either double pay, or pay plus amounts earned that day (ie, double pay as a minimum).<\/p>\n\n\n\n Thembinkosi Mkalipi, the deputy director-general (DDG) for the Department of Employment and Labour, said the department had no objection to clarifying the wording to prevent potential future issues.<\/p>\n\n\n\n It was suggested that the committee accept the parliamentary legal committee’s presentation in principle and integrate it with the committee’s wider work in addressing any changes to the BCEA.<\/p>\n\n\n\n Another clarifying amendment needed relates to public holidays that fall on a Sunday.<\/p>\n\n\n\n Under the BCEA, workers who work on a Sunday should earn one and a half times (1.5x) their typical wage. Work on a public holiday should draw at least double (2x) the wage.<\/p>\n\n\n\n If a public holiday falls on a Sunday, the next Monday becomes the public holiday. However, it is unclear whether Sunday remains a public holiday.<\/p>\n\n\n\n The committee said this should be clarified as it has pay implications for employers.<\/p>\n\n\n\n It means the difference between an employee working on both these days getting paid 1.5x and 2x for the days, or 2x and 2x for the days.<\/p>\n\n\n\n Because these are not pressing problems leading to widespread litigation or confusion in the workplace, changes will likely come through a future, larger amendment to the BCEA.<\/p>\n\n\n\n\n
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Public holidays on Sundays<\/h2>\n\n\n\n