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WHAT HAPPENS WHEN A PUBLIC HOLIDAY FALLS ON A SUNDAY?

1 January 2003
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By Eva Mudely
 
When dealing with the effect of public holidays on your business, one must have regard to the Public Holiday Act, 1994 (“the Act”). The Act specifies twelve days as public holidays. In addition, the Act provides that whenever a public holiday falls on a Sunday, the following Monday is deemed to be a public holiday. If operations are conducted on a Sunday, but not on a public holiday, a dispute may arise in the event that a public holiday falls on the Sunday, as to whether employees are entitled to be paid for the public holiday on both the Sunday and the Monday.
 
This issue was dealt with by the Labour Appeal Court in the recent unreported decision of Randfontein Estates Ltd v NUM (case no. JA29/06 dated 15 November 2007). In this case the employer (the appellant), a mining company, conducted operations at four gold mining shafts. The employer entered into a “continuous operation agreement” (“the Agreement) with the union (the respondent) in terms of which production work operates continuously at certain shafts for seven days a week on all days of the year excluding public holidays. The Agreement provided further that Sundays are treated as normal working days but public holidays are not. On public holidays, unlike any other days of the year, production stops and all affected employees are entitled to a day’s paid leave. The Agreement defined “public holidays” as “those days declared as public holidays from time to time by the relevant authority in terms of the Act”.
 
One of the public holidays designated in Schedule 1 of the Act is Workers’ Day which occurs on 1 May of each year. In 2005, Workers’ Day fell on a Sunday. When Workers’ Day fell on a Sunday in 2005, the union contended that Sunday, 1 May 2005 was a public holiday. The consequence of this contention was that workers who would ordinarily have worked on Sunday, 1 May 2005 were not obliged to do so but were entitled to be paid for the day. In addition, the union further contended that workers were entitled to be paid for the following Monday as well, without having to work. The employer contended that where a public holiday falls on a Sunday, the following Monday is substituted as a public holiday and is not to be regarded as an additional public holiday. Accordingly employees were obliged to work on Sunday, 1 May 2005, but not on Monday, 2 May 2005. A dispute arose between the parties as to the correct interpretation of the Act. The employer approached the Labour Court for a declaratory order. The court a quo in Randfontein Estates Ltd v NUM [2006] 7 BLLR 683 (LC) reasoned that the public holidays specified in Schedule 1 of the Act do not cease to be public holidays when they fall on a Sunday, rather all that happens is that the Monday following the public holiday becomes an additional public holiday. Accordingly, the labour court dismissed the application. Subsequently, a dispute arose between the parties regarding the very same issue on 25 December 2005 and 1 January 2006, as both these public holidays fell on a Sunday.  As the cost to the employer in terms of lost production and additional wages had already run into millions of Rands the employer considered it important that the dispute be resolved, and accordingly took the matter on appeal to the Labour Appeal Court.
 
The court noted that the Act does not define Sundays as being public holidays. In terms of section 5(2) of the Act, if an employer and its employees agree that Sundays should be treated as a public holiday then, as between the parties, Sundays become public holidays. However this was not the position in this case, as in terms of the Agreement the parties agreed that Sundays are to be treated as normal working days. Although the Act does not, either expressly or impliedly, state that where a public holiday falls on a Sunday, that both the Sunday and the following Monday shall be public holidays, the court was of the view that the ordinary, literal, grammatical meaning favoured the contention of the union. However, the court was also of the view that the employer’s interpretation could be supported by the ordinary meaning of the Act. The court accordingly had to have regard to the intention of the Legislature. The court was of the view that when drafting the aforementioned sections of the Act the intentions of the legislature were to set aside days for commemoration and/or celebration by reason of their historical, social or religious significance; to ensure that employees do not lose remuneration thereby; to ensure that the majority of South Africans do not lose the additional benefits of a public holiday by reason of the accident of its holiday falling on a Sunday and to allow a measure of flexibility for employers and employees to enter into agreements varying the recognition of particular public holidays provided that the employees enjoyed at least twelve public holidays per calendar year as provided for in the Act.
 
The case turned on the issue of whether the legislature intended that the number of paid public holidays be limited to twelve and no more (this favours the employer), or whether there should be at least twelve public holidays in a calendar year (this favours the union). In determining the issue the court looked at the wording of various provisions of the Act and held that the legislature intended that the number of paid public holidays is not limited to twelve, and where a public holiday falls on a Sunday, the following Monday is an additional public holiday.
 
The court added though that not all employers are saddled with the burden borne by this employer in relation to the provisions of the Act. Rather much depends on what an employer negotiates and agrees with its employees. In this case although the parties had entered into a comprehensive agreement providing for production works under continuous operations, the agreement stated that such operations will take place seven days a week on all days of the year, excluding “public holidays”. The agreement defined “public holidays” as those days declared as public holidays in terms of the Act. The employer in this case clearly “hitched its agreement to the provisions of the Act”. The court noted that it was clear that the parties had not considered what would happen, in terms of the Agreement, when a public holiday fell on a Sunday. The appeal was accordingly dismissed.
 
The effect of the Labour Appeal Court’s decision for an employer who conducts continuous operations is as follows:

If a public holiday falls on a Sunday, and a Sunday is a normal working day, then an employee that does not work on that Sunday, and the following Monday will be entitled to receive normal pay for both those days.
If the employee works on the Sunday, or on the Monday, or on both days then the employee will be entitled to at least double her normal rate for both those days.   
The decision underlines the importance of parties who negotiate and conclude continuous operation agreements, to do so carefully and record their intentions in clear and precise terms. Further, employers should ensure that their collective agreements and shift policies cater for these situations.
 
Eva Mudely is an associate at Bowman Gilfillan Sandton