15 Dec 2023


by Chuma Vabaza, Partner, Durban,
Practice Area(s): Employment |

If recent media publications are accurate, South African municipalities are facing a significant crisis in respect of the amount of overtime being claimed by municipal employees. Last month News24 reported that Emfuleni Local Municipality had spent over half a billion Rands on employees’ overtime pay in the past 5 years. Last year, eThekwini Metro resorted to introducing a new overtime policy to curb the crisis after the metro had reportedly spent over R3.6 billion Rands in overtime payments in 5 years. In 2022, the Mercury reported that the human settlements and infrastructure services committee of eThekwini approved an additional R67 million to fund overtime pay in the water and sanitation unit. This was done after workers had gone on strike lamenting cuts on overtime pay. Earlier this year, a former employee of Msunduzi Municipality was convicted of overtime fraud.

Something drastic needs to be done to bring things back to normality. The writer does not for a moment claim to have all the solutions to this crisis as it is clear there is an array of causes. One of the causes is a misunderstanding of what constitutes overtime work at municipal level. This article, therefore, aims to explain the correct legal position on overtime. In KwaZulu-Natal, there are three governing prescripts to consider, namely: the Basic Conditions of Employment Act (“the BCEA”), the SALGA KZN Conditions of Service Collective Agreement and any policy on overtime that a particular municipality may have.

The first issue to address is who is entitled to overtime pay. Chapter 2 of the BCEA deals with the regulation of working time. In terms of section 6(a), the whole of Chapter 2, with the exception of section 7, does not apply to senior managerial employees. The net effect of this is that senior managers cannot claim overtime pay, unless a specific municipality has its own policy that entitles such senior managers to same (which is highly improbable).

On the matter of when time worked constitutes overtime, section 9 (1) of the BCEA stipulates that an employer may not require an employee to work more than:

  1. 45 hours per week;
  2. 9 hours in a day (if that employee works 5 days per week or less); or
  3. 8 hours in any day (if that employee works on more than 5 days in a week).

This means that any time worked by an employee beyond these parameters will constitute overtime. The provisions of section 9, however, can be adjusted by collective agreement in respect of emergency workers. This shall be addressed below in greater detail. In addition, a normal employee’s ordinary hours of work in terms of subsection 9 (1) may by agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.

Ordinary municipal employees, with the exception of emergency workers, usually complete their work day between 16h30 – 17h00 in the afternoon. This means that subject to the provisions of section 9 of the BCEA, any time worked beyond these hours usually constitutes overtime.

In terms of section 10 of the BCEA, overtime can only be conducted by an employee if there is an agreement in place between such an employee and the employer. Furthermore, such agreement cannot require an employee to work more than 10 hours of overtime in a week or more than 12 hours’ work on any day. Employees must be compensated for overtime, by either paying them at a rate of one and one half of their usual remuneration rate or by giving them time off work.

The matter of work conducted on Sundays and on public holidays deserves special attention, as there also seems to be a common error being made by some municipalities in terms of how they remunerate workers for conducting work on these days. Firstly, with regards to Sunday work, the BCEA caters for two categories of employees; namely: employees who ordinarily work on Sundays and those who do not ordinarily work on Sundays. In respect of employees who ordinarily work on Sundays, section 10 stipulates that they must be paid at a rate of one and one half of their usual remuneration rate. On the other hand, employees that do not ordinarily work on a Sunday must be paid at a rate of double their usual remuneration rate.

The reason for this distinction is because employees that ordinarily work on Sundays are normally shift work employees or employees who work on a roster. Consequently, shift workers are entitled to be compensated through a shift allowance or a night work allowance, in accordance with section 17 of the BCEA. Therefore, whether an employee ordinarily works on a Sunday or not, time worked on a Sunday ought not to be classified as overtime.

Furthermore, employees who work shifts and are often required to work between 18h00 – 06h00 are not entitled to claim overtime pay for such work. This is because they get compensated through either the shift allowance or a night work allowance. I hasten to add that such employees are entitled to these allowances every month, irrespective of whether they were required to work at night in a given month. The entitlement is on the basis of them being on a shift roster.

In respect of work on public holiday, section 18 of the BCEA creates a similar distinction in respect of workers that would ordinarily work on a public holiday and those that would ordinarily not work on a public holiday. Workers that would ordinarily not work on a public holiday must be paid their usual daily wage plus the amount earned by such an employee for working on a public holiday, whether calculated by reference to time worked or any other method. With regards to workers that would ordinarily work on a public holiday, a municipality must pay such an employee at least double their usual rate for having worked on a public holiday.

Whilst the term “emergency workers” does not appear in the BCEA, it is generally accepted that such workers are those that work in shifts or at night and render emergency services, as referred to in section 17 of the BCEA. This would include workers such as firefighters, traffic officers, electricity unit employees, police officers, disaster and risk management employees, ambulance workers, etc.  On this score, the SALGA KZN Conditions of Service Collective Agreement stipulates at clause 9 that emergency workers are not limited by the overtime restrictions and ordinary hours limitations outlined in the BCEA. This means that an emergency worker shall only be entitled to claim overtime once they have reached their quota of an average of 45 hours per week, irrespective of the time of day that such work is conducted.

In order to clear up any confusion that may have existed from the provisions of the Conditions of Service, on 5 December 2018, SALGA KZN published Circular 62 of 2018 as an implementation guideline. Clause 9 of the Circular makes the overtime position for emergency workers abundantly clear. In terms of the circular, “these employees will only be paid overtime if they work beyond 45 hours per week and subject to any agreements to average the hours at municipal level over a period of 4 months in terms of the BCEA provisions. They may then work more than 45 hours in some months and less in other months, subject to these employees not working more than 45 hours over the agreed average period. They will only be paid overtime if they exceed 45 hours over the agreed period.”

In conclusion, it must be emphasized that the answer to curbing the overtime crisis at municipal level does not only lie in understanding the legal prescripts outlined above. There needs to be significant willpower from management at municipal level to implement proper oversight measures in respect of overtime claims. Understanding the correct legal position, though, is a good start. Ultimately, it is hoped that over time the municipalities will get it right. We choose to be part of the solution as opposed to being distant armchair critics. We, therefore, hope that this article is a small yet significant step in the solutions direction. The basic goal of local government is service delivery, hence the government’s slogan “Batho pele”, meaning “the people first”. If billions of Rands continue to be spent on overtime claims, it is the people that suffer.