Employment law update – Q&A

February 1st, 2018
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Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Question:

I am a stock controller/driver. I would like to ask a question about my work and how they calculate their time. I have to work a total of 196 hours a month. When I have only worked, for example, 180 hours, may my employer take my overtime hours work and ‘fill up’ the 16 hours that is short?

I feel that it is wrong because I get paid double time for overtime and then they just take my overtime hours to fill my normal hours, so I do not really get paid for overtime at all.

How many hours am I supposed to work per month? Can they add my overtime to normal hours?

Answer:

Assuming you fall under the jurisdiction of the Basic Conditions of Employment Act 75 of 1997 (BCEA), s 9 of the BCEA is instructive to your query.

Under the heading ‘Ordinary hours of work’ the relevant portion of s 9 reads:

‘(1) Subject to this Chapter, an employer may not require or permit an employee to work more than –

(a) 45 hours in any week; and

(b) nine hours in any day if the employee works for five days or fewer in a week; or

(c) eight hours in any day if the employee works on more than five days in a week.’

While the BCEA does not stipulate how many hours an employee should work in a month, this figure can be calculated by taking the weekly ordinary hours and multiplying it by 4.333 to get a monthly quota of 195 hours.

Any work performed outside ordinary hours of work is considered overtime.

In terms of s 10(1)(a) of the BCEA, overtime work can only be performed through an agreement between an employer and employee. This section reads;

‘Subject to this Chapter, an employer may not require or permit an employee to work –

(a) overtime except in accordance with an agreement.’

An ‘agreement’ referred to in the section can be entered into verbally each time the employer requests the employee to work overtime, alternatively the agreement can be contained in an employment contract or collective agreement which binds the employee and employer.

Let us assume an employee, who works a five-day week and nine hours a day, agrees to work two hours extra on a particular day. Irrespective of whether that employee works the remainder of the week or not, the employee has worked two hours overtime and is legally entitled to being remunerated at the overtime rate for those two hours. Put differently and to answer the second part of your query; if an employee works overtime they must be remunerated at the overtime rate.

The overtime rate is one and one-half the rate of an employee’s normal rate of pay as per s 10(2) of the BCEA.

An employee who works overtime, but who is not remunerated in accordance with the prescribed overtime rate, has recourse by approaching the Department of Labour and lodging a complaint with a labour inspector.

A labour inspector has the authority to ensure employers comply with the provisions of the BCEA and does this either by securing an agreement with the employer to abide by the prevailing laws and/or to issue a compliance order, which if not adhered to, can be made an order of court.

An employee, who falls under the scope and jurisdiction of a bargaining council and who faces the same or similar difficulty as described above, can approach the bargaining council to lay a compliant. The council will send its agents to investigate the complaint who, like an inspector from the Department of Labour, has the authority to issue compliance orders. Should an employer disregard a compliance order, the council can schedule an enforcement arbitration in terms s 33A of the Labour Relations Act 66 of 1995, the relevant portions of which reads:

‘33A Enforcement of collective agreements by bargaining councils –

(1) Despite any other provision in this Act, a bargaining council may monitor and enforce compliance with its collective agreements in terms of this section or a collective agreement concluded by the parties to the council.

(2) For the purposes of this section, a collective agreement is deemed to include –

(a) any basic condition of employment which in terms of section 49(1) of the Basic Conditions of Employment Act constitutes a term of employment of any employee covered by the collective agreement …

(3) A collective agreement in terms of this section may authorise a designated agent appointed in terms of section 33 to issue a compliance order requiring any person bound by that collective agreement to comply with the collective agreement within a specified period.

(4)(a) The council may refer any unresolved dispute concerning compliance with any provision of a collective agreement to arbitration by an arbitrator appointed by the council.’

This article was first published in De Rebus in 2018 (Jan/Feb) DR 50.

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