adminLabour Matters Ndumiso Davies Sibanda
THERE are many reported cases of collective job action by workers whose origin is poor management of overtime and many employers have made huge unplanned-for payments to workers as a result of unlawful management of overtime.In Zimbabwe, management of overtime is legislated for in the Labour Act only as far as working during public holidays where it is mandatory to pay a worker who works on a public holiday his normal pay for the day even if the employee does not come to work. Where the employee works on a public holiday, he or she shall be paid at double the rate for working on a public holiday in addition to his normal pay for the day.
All other forms of overtime are regulated differently by various National Employment Councils (NECs). This calls for the employers to be familiar to appropriate overtime management procedures for employees covered by the particular NEC. Most NECs will regulate the amount of overtime worked by an employee as guided by safety of the worker, health implications and also take into account family responsibilities of employees.
Many employers ignore the importance of family responsibility of an employee when putting together overtime programmes. Legally, workers can object to working overtime that is structured in a manner that is sensitive to workers family responsibility. Overtime for employees not covered by NECs is governed by the employment contract.
What guides parties in how many hours one should work before clocking overtime is the contractual normal working hours. Contractual working hours are usually given in the contract of employment, employee handbook or policies and procedures manual.
A common question is who qualifies to get overtime? In terms of the law, all employees qualif if they work hours beyond the normal working hours. However, for managerial employees, the nature of work and organizational culture could be such that managerial employees get certain benefits in lieu of overtime.
Even if it is so there are instances where courts can order the employer to pay managerial employees overtime especially in cases where it is evident that the employer expressly or impliedly instructed managerial employees to work overtime and there is evidence of the employer benefiting from such overtime.
In most cases managerial employees raise allegations of unpaid overtime when they are dismissed and provide solid evidence that they worked overtime.
Another grey area is where employees work overtime and the employer gives time off in lieu of overtime. Legally, the employer should push cash for overtime work, however, where parties mutually agree employees are given time off. The time off should be of equal value as the overtime hours, for example an employee who works a day during a public holiday should be given two days off.
Employers need to recognise that employees are entitled to notice to work overtime as guided by the collective bargaining agreement for the particular industry. While it is true that certain urgent work can not allow for giving prescribed notice, the employer needs to avoid pushing workers to work in a manner that can be viewed as forced labour. To avoid problems, employers can negotiate and agree with workers on how to handle urgent work which has to be done immediately. This can be agreed at Works Council. Many organisations have these agreements to cover unforeseen eventualities such as breakdowns, power cuts and urgent orders.
Many employers wrongly think they can abuse workers and later refuse to pay overtime claiming the overtime was not approved. The legal test goes beyond written approval of overtime. The courts will also look at whether the employer benefited from the overtime, whether the employer knew workers were working overtime, whether employer provided materials, tools, equipment and facilities to work overtime. All these by implication mean that overtime was approved and workers have to be paid. There is however an exception to this, where an employee is trusted to work alone, is in a responsible position like a supervisor or manager there is no likelihood for courts to approve self-authorised overtime. The employer will however have to prove that the employee was in a trusted position where he or she works alone thus there is no reasonable expectation to create overtime without authorisation.
As mentioned in one of my earlier articles on overtime, there is overtime that will have to be approved after it has been worked because it was reasonable for the worker to continue working in the interest of the business, for example, a shift worker might continue working at changeover of shifts because the replacement individual has not arrived.
Can workers be disciplined for working unauthorised overtime? It is possible to discipline workers who create unauthorised overtime but there must be evidence that workers created the overtime and that the overtime was not reasonable action by reasonable employees. Further, there must be evidence that the employer expressly barred overtime and workers action was a money making scheme. The employer’s conduct should not have impliedly approved the overtime.
In conclusion, employers need to have detailed overtime policies and have managers and supervisors fully trained on the management of overtime.
Davies Ndumiso Sibanda can be contacted on
e: [email protected] c: 0772 375 235
Online Reporter