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How do public holidays work for shift workers? Can you be forced to work? Can your employer deduct annual leave for this day? These questions came up recently in Scorpion Legal Protection’s Live Q&A. We take a look at what the law says.
Section 18 of the BCEA says that employers may not require any employee to work on a public holiday, unless the employee agrees to it. It’s important to note that ‘employee’ does not apply to -
Employers are not allowed to deduct annual leave for a public holiday. If a public holiday falls on a day on which you would normally work, and you do not work, your employer must still pay you what you would normally be paid for that day. If you work on the public holiday, you must get paid at least double your daily wage. The BCEA also says that you must get paid for this public holiday work on your usual pay day.
Lastly, if you work a shift and it falls on the public holiday as well as part of another day, and the majority of your shift was on the public holiday, the whole shift counts as public holiday work and you must be paid accordingly. If most of your shift falls on the other day, and not the public holiday, then the whole shift counts as regular work, not public holiday work.
The legislation that applies to the question of shift work and public holidays falls under the Basic Conditions of Employment Act (BCEA), but it is important to note that the industry you work in, and the sectoral determinations for that industry, could affect how the legislation applies to you. Different sectors have different sectoral determinations. For example, both Sectoral Determination 9: Wholesale and Retail Sector and Sectoral Determination 13: Farm Worker Sector agree with the BCEA, whereas Sectoral Determination 14: Hospitality Sector adds that “In accordance with section 2(2) of the Public Holidays Act, 1994 the parties may exchange a public holiday for any other day.” So in order to get the most accurate answer, you will need to check if you fall under a sectoral determination (not everyone does) and if this affects your basic conditions of employment.
Employees who have problems in this regard should make use of the employer’s internal processes first, and lodge a pay/leave query. If this fails, you can lodge a case of unfair labour practice at the Department of Labour and they will investigate the matter.
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If you have a query, ask Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 6 April 2021
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