adminLabour Matters Davis Ndumiso Sibanda
MANY employers think that workers should not be paid while away from work during public holidays and end up on the wrong side of the law.
In terms of Zimbabwe’s labour laws all employees should be paid their salaries during all public holidays even if they will not have been at work. For example, during Easter holidays workers are not required to be at work on Good Friday and Easter Monday in those organisations that work Monday to Friday, however the workers are entitled to their salaries for the two days.
Section 14C(2) of the Labour Act reads, “ . . . an employee shall be granted leave of absence during every public holiday, and shall be paid his current remuneration for that day if it occurs on a day which he would otherwise have been required to work”. The act makes it mandatory for the employer to grant leave and it also makes it mandatory for the employer to pay even if the worker will not have worked.
There are employers who demand that workers work on another day for no pay to compensate for the fact that they did not work on a public holiday but they were paid. Such action by employers is illegal and can lead to embarrassing litigation for the employer. There are however instances where workers will be required to work during public holidays, such working is guided by section 4C (3) of the Labour Act which reads, “where an employee consents to work on a public holiday, he shall be paid not less than twice his remuneration for the day, whether or not that day is one on which he would otherwise have been required to work.” This clause is loaded and shall look at all the pieces that make it, firstly the employee must consent to work on a public holiday. If the employee refuses to work there is nothing the employer can legally do.
However, workers need to be careful about the term “consent” as most of them consented when they signed contracts of employment or conditions of service. For workers in industries that normally work during public holidays such as mines, the consent issue does not arise as it is covered as part of the Collective Bargaining Agreement or conditions of service. The only thing the employer is obliged to do is to pay workers at double the rate.
Where a worker has worked on a public holiday, it is mandatory for the employer to pay the normal pay paid to all workers who did not come to work plus pay at double the rate for hours worked during a public holiday. For example if Mary earns $10 a day and is called to work during a public holiday, her total pay for the day will be $30. These legal provisions cover both managerial and non-managerial employees.
The law does not provide for giving workers time off in lieu of overtime worked during a public holiday, however parties may mutually agree to compensate holiday work with time off.
This means that where an employee worked during a public holiday and is given time off, he is entitled to two days off for each day worked. To avoid unnecessary conflict employers need to be clear with workers on what they are working for, that is cash or time off before the workers work. Where a dispute arises over time off versus payment, the arbitrators look at when workers were told of the compensation option.
It is however a different case where a worker requests to work during a public holiday so as to take time off on another day. In such a case, this becomes a common law agreement not governed by section 14C provision meaning that a day can count for a day.
In conclusion, employers need to have clear policies on overtime and ensure that these policies are in line with the laws of the land and are clearly communicated to supervisors and workers. Further, where the Collective Bargaining Agreement or conditions of service do not cover working during public holidays, parties can negotiate an agreement at Works Council level.
Online Reporter