Public Holidays: Useful Information

Public holidays – Section 18 – Basic Conditions of Employments Act

2023/08

Updated by Jan du Toit

As per section 18 of the Basic Conditions of Employment Act, work on a public holiday is subject to the following:

(1) An employer may not require an employee to work on a public holiday except in accordance with an agreement.

(2) If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay –
(a) an employee who does not work on the public holiday, at least the wage that the employee would ordinarily … have received for work on that day;
(b) an employee who does work on the public holiday–
(i) at least double the amount referred to in paragraph (a); or
(ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.

(3) If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to–
(a) the employee’s ordinary daily wage; plus
(b) the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.

(4) An employer must pay an employee for a public holiday on the employee’s usual pay day.

(5) If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.

Explanation

It must always be remembered that work on a public holiday is by agreement only. If an employee contractually agreed to work on a public holiday, the employee must comply therewith. In the absence of an agreement, contractually or otherwise, the employee will have the right to refuse to work on that day.

If an employee is required to work on a public holiday on which he would normally have worked, the employee is entitled to be paid a minimum of double his normal wage rate for the day. If he does work on the public holiday, and his normal wage rate plus his wage for the time worked totals more than double his normal wage rate, then he must be paid the higher of the two, if he does not work on that public holiday, he is entitled to be paid his normal wage rate for the day.

If the employee does work on the public holiday, and it is not a day on which he would normally work, the employer must pay that employee a minimum of his ordinary daily wage rate, plus the amount earned by the employee for the work done on that day. Any payment for public holiday work must be made on the employee’s usual payday.

With night shift workers, part of the work may be done on an ordinary day and part on a public holiday (after midnight). In such cases the whole shift will be deemed to have been worked on the public holiday, except if the hours worked before midnight are greater than the hours worked after midnight.

The conditions in section 18 applies to ALL employees – namely permanent employees, temporary employees, fixed term contract employees, project-employed employees, employees on basic salary, employees on basic salary plus commission and employees earning commission only.

The only exception to the above is found in section 18(3) of the Act. Section 6(3) states that an employee earning above the earnings threshold, as published and annually increased by the Minister of Employment and Labour, are excluded from the requirements of that section. Section 18 (3) deals only with the amount to be paid to employees who earn under the threshold amount and that work on a public holiday that would have been a normal working day if it was not a public holiday.

Exchange the public holiday for another day

It is permissible for an employee and employer to agree to exchange of a public holiday for another day. This permission to exchange is not regulated in the BCEA. It is regulated in the Public Holidays Act, and therefore has nothing to do with the payment for the public holiday. The Public Holidays Act states that, by agreement with the employee, a public holiday may be exchanged for another day. As an example, let us take Easter Monday. This is a public holiday, but the employer requires its employees to work on that day. Should the employees agree, they will be required to work on that public holiday at their normal pay rate but will be entitled to the benefit of a paid public holiday on the alternatively agreed day. If they do not work on that day, they will be paid for the day as if they were at work. Such agreements must preferably be reduced to writing.

Readers are reminded that Bargaining Council Main Agreements may provide for different employment conditions pertaining to work on a public holiday, specifically for employees identified in such collective agreements. This article is aligned to the Basic Conditions of Employment Act. 

This article does not constitute legal advice and is based on the author’s interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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