What to expect when your employee’s expecting… Life is full of firsts, and this might be your first time as employer having an employee who is pregnant. Naturally, you may wonder, “What should I expect and what is expected of me as an employer?” That’s where the “Code of Good Practice on the Protection of Employees During Pregnancy and After the Birth of a Child” provides essential guidelines for employers to support and protect pregnant or breastfeeding employees. It outlines the employer’s general responsibilities, including risk assessments, reasonable accommodations, and maternity leave provisions. Note, however, that the Code may be reasonably adapted depending on the specific business’s workplace circumstances and occupational health requirements.

Legal requirement #1: Non-discrimination

Employers are legally prohibited from discriminating against, or dismissing employees due to reasons relating to pregnancy, a protection which is reinforced by both the Labour Relations Act and the Employment Equity Act.

Take note: Employees who are unfairly dismissed on this ground can refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) or applicable Bargaining Council. Such a dismissal would be considered automatically unfair and would put the onus on the employer to prove the contrary. The compensation awarded in such a case can be up to 24 months’ worth of the employee’s salary.

Legal requirement #2: Safe work environment

Employers are obligated to maintain a workplace free from health risks, including those affecting reproductive health. Key responsibilities include:

• Conducting thorough risk assessments to identify and mitigate hazards specific to pregnant and breastfeeding employees.
• Implementing measures to limit or eliminate identified risks, ensuring ongoing safety. This might involve modifying workstations, adjusting work schedules, or providing special equipment.
• Providing comprehensive information and training on health and safety risks and protective measures.
• Involving worker health and safety representatives in risk assessments and controls.
• Ensuring employees take reasonable steps to safeguard their own and colleagues’ health and safety.

Legal requirement #3: Protecting the health of pregnant and breastfeeding employees

Employers must prioritize the health and safety of pregnant and breastfeeding employees under Section 26 of the BCEA, which prohibits hazardous work. Key responsibilities include:

• Risk assessment: Identifying workplace risks specific to pregnant or breastfeeding employees and implementing necessary protective measures and adjustments to mitigate these risks effectively.
• Alternative employment: Offering suitable alternative roles if current work poses health risks during pregnancy or breastfeeding, ensuring terms are fair.
• Notification and evaluation: Encouraging early pregnancy notification to promptly assess workplace risks, including evaluating physical conditions and job tasks to determine appropriate accommodations.
• Risk mitigation: Informing employees of identified risks, consulting on preventative measures, providing necessary training, and considering occupational health consultations for uncertain adjustments.
• Health monitoring: Maintaining ongoing risk assessments throughout pregnancy and breastfeeding, supporting clinic attendance and necessary breaks for breastfeeding employees.
• Aspects of pregnancy affecting work: Both employers and employees should consider these common aspects of pregnancy impacting work:
  • Morning sickness: Employees may struggle with early shifts and heightened sensitivity to strong smells exacerbating nausea.
  • Physical strain: Prolonged standing or sitting can lead to backache and varicose veins, while manual handling tasks can also contribute to discomfort.
  • Increased toilet needs: Ensuring access to suitable toilet facilities is crucial, especially considering challenges in leaving work unattended.
  • Fatigue: Tiredness may limit overtime and evening work capability, necessitating consideration of rest periods for adequate recovery.

This article is intended as a brief and general overview of some of the considerations that employers need to consider. The code contains more detailed information and schedule of hazard examples and best practices to mitigate risks effectively. For advice and a copy of the code please contact the LWO on 0861 101 828.

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The availability of safe public transportation for employees working beyond ordinary working hours, is a critical aspect of ensuring workplace safety and compliance with regulatory frameworks.   This is just one of the many principles we take away when looking at the Labour Appeal Court (LAC) judgment of TFD Network Africa (Pty) Ltd v Singh NO & Others [2017] 4 BLLR 377 (LAC). In this judgement the LAC sheds light on the obligations of employers regarding transportation for employees required to work overtime or night shifts.

Basic Conditions of Employment Act

Under the Basic Conditions of Employment Act (BCEA), specifically Section 17(2)(b), employers can only allow and/or require employees to work night work if transport is available between the workplace and an employee’s place of residence. Night work in terms of the BCEA is work which extends beyond 18h00 and concludes before 06h00 the following day. This provision is not limited to regular night shift workers but extends to any employee required to work beyond these hours, including overtime.

The BCEA also makes provision for the Code of Good Practice on the Arrangement of Working Time, which further provides that employers who engage employees on night work should ensure, among others, that employees are able to obtain safe, affordable transportation between their places of residence and their workplace.

The LAC judgement

The LAC judgement of TFD Network Africa (Pty) Ltd v Singh NO & Others highlighted the importance thereof that an employer must ensure that transport is available, and that the employer must consider the safety of employees, especially in potentially hazardous situations such as commuting late at night. The LAC ruled that an employer cannot unreasonably expect an employee to find their own way home after working late, even if it involves overtime beyond normal working hours. The Court further also indicated that an employee is entitled to raise the absence of these measures as a defence to a charge of failing to perform night work, or disobeying an instruction to perform night work, where these measures are not in place.

In practical terms…

In practical terms, ensuring compliance involves several key steps for employers:

• Firstly, it requires a thorough review of existing policies to ensure they align with legal requirements under the BCEA/relevant Bargaining council’s collective agreement, regarding the provision of transportation.
• Secondly, conducting regular risk assessments is essential to evaluate the safety of transport options available to employees, especially in areas prone to security risks or lacking adequate public transport infrastructure.
• Thirdly, engaging in consultations with employees helps to understand their commuting challenges and preferences, which informs transportation arrangements that prioritize both safety and convenience.
• Finally, it is crucial to clearly document transport arrangements and communicate these effectively to employees to ensure transparency and understanding of their rights and entitlements.

Conclusion

This LAC judgment clarifies several important points:

• The obligation to ensure transport is available is universal and not contingent on an employee constantly working night shifts; it applies whenever work extends beyond 18:00, regardless of shift patterns or overtime agreements.
• Employers must thoroughly assess the safety of the transportation that is available, or which they provide, ensuring it adequately protects employees during their commute. This includes considering the geographic location, safety of routes and the specific circumstances of each employee.

By adhering to these obligations, employers not only uphold legal compliance but also prioritise the health, safety, and well-being of their workforce which promotes a supportive and compliant workplace environment.

This article is intended to be a brief and general overview of some of the complexities of modern work arrangements that employers need to consider when scheduling shifts and night work. For advice, please contact the LWO on 0861 101 828.

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In terms of the Basic Conditions of Employment Act (BCEA), an employee may only work overtime if there is such an agreement between the employer and employee. This agreement is only valid for a period of 12 months and must be renewed annually.

If an employee earns in excess of the income threshold, which is currently set at R254 371.67 per annum (R21 197.63 per month) effective as of 1 April 2024, the overtime clause in the BCEA, as detailed below, does not apply. This amount includes remuneration before any deductions (e.g. income tax, pension, medical aid, etc.), but excludes contributions by the employer in respect of pension and medical aid. Transport allowance, performance awards (bonuses) and payment for overtime worked will also not be included. If the employee therefore earns in excess of the income threshold, the parties must agree what the payment or arrangement for overtime will be, if any.

Overtime also does not apply to the following persons:

• Senior management
• Salespersons who travel to the premises of customers and who regulate their own working hours
• Employees who work less than 24 hours per month

Do I pay overtime after 45 hours worked?

Normal working hours may not exceed 45 hours per week and any hours worked in excess of the agreed normal working hours are considered to be overtime. Overtime must be calculated daily:

• If the employee usually works five days a week, the hours worked in excess of nine hours a day are considered overtime.
• If the employee usually works six days a week, the hours worked in excess of eight hours a day are considered overtime.

What are the maximum hours of overtime?

• Ten hours per week; and
• Three hours a day.

An employee may not work more than 12 hours on any day. This includes overtime. A written agreement may increase the maximum hours of overtime per week to 15 hours per week, but this may not be applied for more than two months in any 12 month period.

How much should I pay my employee?

The employer must pay one and a half times the employee’s normal rate for each hour of overtime worked. However, the parties may agree that the employer:

• Pay the normal wage for overtime worked and exempt the employee for 30 minutes with full pay for each hour of overtime worked; or
• Exempt the employee for 90 minutes with full pay for each hour of overtime worked.

When do I have to grant this time off?

This time off must be granted within one month of the employee working the overtime. There is an option to extend this agreement to 12 months if it is so agreed upon in writing between the parties.

Employers must ensure that overtime is only worked by agreement, so that employees do not submit unnecessary claims for overtime worked. As there are various sectors and applicable legislation, it is essential for an employer to be aware at all times under which sector and legislation they are classified. In doing this, employment contracts are drawn up with correct clauses to protect the employer. The employee is then also aware of what is expected of him/her.

This article applies to overtime for employers and employees who fall under the scope of the Basic Conditions of Employment Act (BCEA). To ensure that you as an employer are aware of the correct overtime applicable to your sector, contact the LWO on 086 110 1828.

Contact the LWO for any advice or assistance!

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What is a policy?

A policy informs employees of the rule/s in respect of a certain topic. The employer puts these rules in place in order to ensure the smooth and efficient running of his/her business operations. Policies are not underwritten by labour legislation, but define the employer’s own rules, which must be reasonable, for the workplace. We strongly advise employers to implement the following policies in the workplace:

Code of conduct

Smoking policy

Sick leave policy