As South African mines get older, employers may have to adjust shift systems to ensure maximum productivity while avoiding contravening the Basic Conditions of Employment Act (BCEA) and other regulations.

Travel time to and from change houses (on mines) to the workplace has increased significantly, especially down ever-deepening mineshafts, with some employees travelling approximately three hours per day before starting to work.

The regulation of working time is one of the oldest concerns in labour legislation.  Working hours are regulated by the BCEA, which does not cater for practical circumstances and arrangements faced by the mining industry. For example, the BCEA does not provide for and/or regulate travelling time to and from one's place of work.  Ordinarily, travelling to and from work is not considered in measuring working hours for purposes of the BCEA.  However, industry-specific directives inform how the provisions in the BCEA apply to the mining sector. Mine Health and Safety regulations provide that no employee may work in or at a mine for more than 48 hours in any consecutive seven days, excluding the time taken in getting to and from the place where the work is performed. The exclusion of travel time is qualified by these regulations in that any travel in excess of 60 minutes to reach the employee's place of work is included in the employee's working hours.

Employees work greater hours of overtime (overtime too, still being subject to BCEA limitations) to meet production and mine viability metrics to counteract the loss of production occasioned by inter alia increased travel time to the workplace.  Employers facing this sector-specific challenge should carefully analyse the time it takes their employees to get to the workplace, especially when once at work it still takes employees a long time to reach their places of work. Employers should monitor whether travel or preparation is intimately linked with the job an employee is required to do, for the purposes of calculating and complying with the ordinary hours of work to be performed by employees.  In this regard, employers may elect to reconfigure shift systems to lessen the number of days employees are required to work in order to increase their daily hours of work with the effect of extending face time and still remaining within the confines of the law. 

The most effective legal mechanism to make provision for extended working hours is, in our view, for employers to: (1) conclude collective agreements with labour in respect of clearly delineating the calculation of working time and/or (2) to apply to the Minister for an exemption from various sections of the BCEA in respect of working hours. These options, however, are still confined to the limitations placed on the parties by the BCEA.

Written by Lizle Louw, Kenneth Coster & Mehnaaz Bux, Partners at Webber Wentzel