Should workers be paid cash for overtime work?

Labour Matters Davies Ndumiso Sibanda
Many workers and employers are not sure whether to pay workers cash for overtime work or the employer can decide to give workers time off in lieu of overtime.

My reading of the law is that every employment contract has normal working contractual hours and anything beyond those hours is overtime which every employee has a right to be compensated for depending on the terms guiding the working of overtime.

The Labour Act is silent on overtime work in general but makes it a legal requirement for the employer to pay overtime at double the normal rate for work done on public holiday. It does not give the employer a choice to pay overtime or give days off. It is prescriptive in that the employer shall pay and not give time off. Further, this provision applies to all employees whether managerial or non-managerial.

The challenge arises where the employer decides not to pay workers but instead gives time off in lieu of overtime and at times the calculation of time off is wrongly done resulting in having an unhappy workforce and litigation.

Employers and workers have to be careful in that they cannot read the provisions of the Labour Act on overtime in isolation. They must be read with the overtime provisions of the appropriate collective bargaining agreement and the organisation’s conditions of service provisions on overtime.

Whether the employer has a right to decide to pay overtime or give the workers time off depends on the NEC or workplace rules governing overtime compensation. Some NECs give the employer the power to choose methods of payment while others are express in that all overtime must be paid cash unless there is mutual agreement in the alternative and in some cases compensation method option is contractual.

Where the conditions of service are silent on whether overtime shall be paid in cash or employees can be given time off then at common law the workers have to be paid cash unless the employer negotiates and agrees with workers on time off.

Employers should desist from unilaterally deciding whether to pay overtime or to give time off where the collective agreement or conditions of service signed by the parties do not give the employer that right. Where the employer unilaterally makes the decisions workers are likely to successfully raise a case of unfair labour practice against the employer.

Some employers and workers have a standing arrangement on how workers are engaged to work for paid overtime or time off. In such cases there are no problems as the processes and tradition for working overtime are known and agreed.

The issue of overtime has many challenges because some workers prefer to be paid cash while others prefer time off to do private work. In some jobs, workers do not want overtime because the work is very hard and while in some cases workers rush for it as it is additional income or time off. Because of all these factors overtime management varies from organisation to organisation and industry to industry.

I am of the view that to solve the problem of whether workers should be paid overtime or they should take time off parties should agree on how employees will be asked to do overtime and how the method of compensation will be communicated. I am of the view that workers should be told what they are working for before they work and an agreement reached. It is unfair to deny an employee who expected to be paid cash the opportunity to get extra cash at the time of payment instead give time off. In such cases courts are likely to rule in favour of employees.

In conclusion, employers and workers leaders should ensure the management of overtime is guided by a clear policy or agreement so as to avoid related disputes.