There are proposed changes to the Basic Conditions of Employment Act.
Lawmakers have scrutinised the Basic Conditions of Employment Act (BCEA), pointing out gaps in how it addresses compensation for public holiday work.
Officials from the Parliamentary Legal Services recently briefed the Portfolio Committee on Employment and Labour on possible shortcomings or gaps in the current law.
The BCEA is a labour law that governs employment matters, including leave, wages, working hours, overtime, and pay for work on public holidays.
Law on public holiday pay questioned
Parliamentary legal adviser Telana Halley-Starkey informed MPs that section 18(2)(b)(ii) of the BCEA contains “semantic ambiguity”.
This section states that if an employee works on a public holiday, they must be paid their normal daily wage plus extra pay for the hours they actually work that day – but only if this total is more than double their normal daily wage.
“So, the legal issue is the interpretation of that section is not clear. The confusion then lies in the pronoun ‘it’.
“A question that may arise is which noun is ‘it’ referring to. What is the ‘greater’ that the section refers to?” Halley-Starkey asked.
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She explained that although section 18(2)(b)(ii) is faulty in syntax, there has been no interpretation issues raised by legal experts or any court.
“The common interpretation, therefore, is that the employer either pays the employee double the normal wage or the normal wage plus any amount that is earned on the day, whichever is greater of the two.”
Halley-Starkey proposed removing the phrases “at least double” and “if it is greater” from the section, and instead including the wording “the higher amount of the following” to improve clarity.
MPs debate the need for legislative fix
ANC MP Sello Maeco questioned whether the ambiguity warranted a legislative amendment and whether it was essential.
“Is the use of the pronoun ‘it’ in the clause legally pragmatic or open to misinterpretation in its practise?” Maeco asked.
EFF MP Tebogo Mokwele expressed similar sentiments.
“Is it urgent to address the ambiguity or can it be included in a broader amendment bill to the Basic Conditions of Employment Act,” Mokwele said.
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However, DA MP Juliet Basson revealed that during an employment forum she attended two weeks ago, an employer argued that the law is unclear and allows them to choose how public holiday pay is calculated.
“The employer said it is my choice to decide on which scale I pay you because ‘it’ does not specify and I would be extremely happy if we can change this to specify better.
“I do believe that if you work on a public holiday, you are entitled to more income and you are entitled to the correct form of income because you are giving up free time with your family and loved ones,” Basson said.
She added that the current wording of the section seems to favour the employer.
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Monday and Sunday both public holidays?
Another DA MP, Michael Bagraim, expressed surprise that previous litigation had not exposed the issue, describing this as “weird”.
He also questioned whether the proposed amendment made the section “crystal clear”.
Bagraim further emphasised the need to clarify how public holidays are treated when they fall on a Sunday.
The DA MP pointed out the confusion around whether both the Sunday and the following Monday are regarded as public holidays, or just one of them.
He noted that employees who normally work on Sundays are entitled to time-and-a-half pay.
“If the public holiday is indeed to be on a Monday, then you are going to get double, or are they both public holidays?” Bagraim asked.
MK party MP Hazel Mbele supported Bagraim’s concerns.
“If people are working on a Sunday, is it regarded as overtime or as a public holiday to get double pay?” Mbele asked, adding that a legal amendment would bring clarity.
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