Annual leave under the BCEA

This guide explains the minimum set by the Basic Conditions of Employment Act 75 of 1997. It is general information, not legal advice. A contract, collective agreement, bargaining council agreement or sectoral determination can change the position for a particular employee, so check those before acting.

Who the rules cover

The leave chapter of the Act applies to most employees. It does not apply to an employee who works fewer than 24 hours a month for an employer.

The Act sets a minimum, not a maximum. If an employer gives more leave than the Act requires, the extra leave is governed by the contract or policy that grants it, unless an agreement says otherwise.

How much annual leave

Section 20 gives an employee at least 21 consecutive days of annual leave on full remuneration in each annual leave cycle.

The Act counts consecutive days, not working days. Twenty-one consecutive days is three calendar weeks, which is why the entitlement is usually stated as:

• 15 working days for an employee who works a five-day week
• 18 working days for an employee who works a six-day week

By agreement, the entitlement can instead be worked out as one day of annual leave for every 17 days the employee worked or was entitled to be paid, or one hour for every 17 hours.

You can work out the figures for a particular working week with the BCEA annual leave calculator.

The leave cycle

An annual leave cycle is a period of 12 months’ employment with the same employer. The first cycle starts on the day the employee begins work, and each later cycle starts when the previous one ends.

This means each employee has their own cycle. It does not follow the calendar year or the company’s financial year. Two people who started in different months are in different cycles.

How leave builds up

The Act states the entitlement for the full cycle. Most employers spread it evenly, so that leave builds up month by month:

• 1.25 working days a month on a five-day week (15 ÷ 12)
• 1.5 working days a month on a six-day week (18 ÷ 12)

Where the parties have agreed to the one-in-17 method, leave builds up with the days or hours actually worked instead.

When leave is taken

Annual leave is taken at a time agreed between the employer and the employee. If they cannot agree, the employer decides when it is taken.

The employer must grant the leave no later than six months after the end of the leave cycle in which it was earned. An employee is entitled to take the leave built up in a cycle on consecutive days.

Public holidays and other leave

If a public holiday falls on a day during an employee’s annual leave on which they would ordinarily have worked, they get an additional day of paid leave. The public holiday is not used up as a leave day.

An employer may not require or allow an employee to take annual leave during:

• any other period of leave the employee is entitled to under the same chapter of the Act, such as sick leave
• any period of notice of termination of employment

Pay during leave

Section 21 requires annual leave to be paid at no less than the remuneration the employee would have received for working over the same period, calculated at the rate in force immediately before the leave starts.

The pay is due before the leave begins, or on the employee’s usual pay day if the employer and employee agree to that.

Paying leave out

An employer may not pay an employee instead of granting annual leave while the employment continues. The statutory minimum has to be taken as time off.

The exception is when employment ends. Under section 40, the employer must then pay for annual leave that was earned and not taken, including a pro rata amount for the incomplete cycle where the employee has worked for longer than four months.

Records

Employers must keep records of their employees, including time worked and remuneration, for three years from the date of the last entry. A leave record that shows what was earned, what was taken and when is the simplest way to answer a later dispute about a balance or a final pay.

How HRify handles it

HRify keeps a leave balance for every employee, in line with the Act. Leave accrues monthly, carried-over leave expires when the Act says it does, and you cannot pay out more leave than section 20(11) allows. Every South African public holiday is in the calendar and is used in the leave calculation.

An employee is warned before they submit a request if they do not have enough leave, and the balance is checked again before the final approval. See leave management in HRify, or request a demo.