Davies Ndumiso Sibanda, Labour Matters
THERE are many disputes in organisations over workers who have worked overtime whether they should be paid money or be given time off.
The issue of overtime has many complex challenges and, in some instances, has resulted in collective job action with workers claiming that the calculation of overtime was wrong and others complaining over unpaid overtime.
The Labour Act Chapter 28:01 addresses the issue of overtime in section 14C where it makes it mandatory to pay an employee who works overtime during a public holiday at double his or her normal rate of pay.
The Labour Act Chapter 28:01 further makes it compulsory to have an employee to consent to work on a public holiday, therefore, it does not make it mandatory.
However, this provision must be read together with Collective Bargaining Agreements of various NECs where work on public holidays is made mandatory and the only legal requirement is paying employees at double the rate for work on public holidays. Best practice requires that overtime must only be worked after it has been authorised except in exceptional circumstances where it will be authorised after it has been worked.
For example, a messenger sent to pick stuff from the airport might have to wait for the delayed plane and create overtime before it has been authorised as it does not make sense to leave before arrival of the plane.
The overtime authorisation mechanism must be clear and easy to follow by employees. It must also be clear whether the employee is working for one and half times his normal rate of pay or double the rate of pay. The process must be clear on how the overtime will be received and paid.
There must be mechanisms to establish that all overtime due has been paid. Some NEC Collective Bargaining Agreements have reasonably detailed overtime management processes. However, in most organisations that follow best practices, there is an overtime management policy.
The problem with overtime in times of economic hardships is that it can be forced on the employer by workers in order to improve their monthly earnings and at the same time management will be looking at containing costs through minimising overtime. This usually results in conflict between workers and management.
Another area of serious conflict between workers and management has been notification on when overtime will be worked. Employers in most cases overlook the fact that workers have private lives and instruct workers to come for overtime at very short notice outside the provisions of the CBA.
It was in the Tecla Philemon vs OK Bazaars case where the employer was required to give 12 hours’ notice by the CBA but the employer ordered her to continue working but she objected arguing she had not been given the legal 12 hours’ notice.
Employers have to give workers reasonable notice and preferable notice as guided by the CBA. In most cases where relations between workers and the supervisor are good, workers will not mind short notice as long as those with urgent personal matters will be excused.
At law, overtime has to be paid. However, some CBAs and works council agreements allow for time off in lieu of overtime. Such changes should be done as guided by the agreement and must be fair. For example, every public holiday worked will count for two days where the employee is given days off instead of money.
Best practice requires that the organisation puts in place an overtime policy that addresses all these grey areas and many others that have not been covered in this article if overtime related disputes are to be kept to a minimum.
- Davies Ndumiso Sibanda can be contacted on:
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