Employment terms are governed by labor laws alongside the employment contract, which establishes agreed terms and conditions. According to Section 2 of the Employment Act, a contract of employment is โan agreement, whether oral or in writing, expressed or implied, whereby one person agrees for a wage or other benefit or both to let his labour to and to perform it under the orders of another person who agrees to hire it.โย
While this contract is mutually agreed upon, any provision that contravenes the Employment Act is deemed void to the extent of its inconsistency. The Act establishes minimum rights for employees, such as paid annual and sick leave, limitations on working hours, and entitlement to paid public holidays. However, questions often arise regarding public holidays, particularly regarding unpaid holidays. Are employees who work on unpaid public holidays entitled to compensation? Letโs break it down.
Public Holidays Defined
In Botswana, all public holidays are listed in the Public Holidays Act, but only the paid holidays are specified in the Employment Act. The eight paid public holidays include New Yearโs Day, Easter holidays, Labour Day, Presidentโs holidays, Independence Day, and Christmas Day. Section 99(5) of the Employment Act allows the Minister to amend this list by order in the Government Gazette, potentially adding additional paid holidays as needed.
The Law on Paid Public Holidays
Under Section 99(1) of the Employment Act, each paid public holiday specified in the Second Schedule must be compensated. Section 99(3) stipulates that an employee working on a paid holiday should receive double their regular wage or a paid day off within the next 10 days. This law mandates compensation only for work on the listed paid public holidays. Employers may treat all public holidays as paid, but this does not legally obligate them to offer additional pay for work on unpaid holidays unless specified in the contract.
Clarification
The compensation obligation outlined in Section 99(3) pertains solely to paid public holidays in the Second Schedule. If employees work on an unpaid holiday that the employer treats as a paid day off, they are not legally entitled to compensation. Employers who compensate employees on these days are acting out of goodwill rather than legal requirement.
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