Labour Law

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Private Ryan

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Query relating to SA Labour Law.

My girlfriend works at a well known clothing and food store in the mall (no names mentioned) as a visual merchandiser. I have two problems relating to what I think is unfair pay:

1) Overtime

Bi-annually for a two week period, the store launches its summer and winter ranges and therefore has to change the whole store around. Her and her colleagues are required to work overtime during this period. By overtime, I mean 9am-12am (15 hour shifts) per day for the first 3 days, and thereafter 12pm - 12 am (11 hour shifts) for the rest of the two week period (Including weekends).

I have read the labour law, and to my understanding, it is against the law to work over 3 hours overtime per day, and not more than 10 hours overtime per week!

They do not get paid for the overtime worked, however they do get time off for overtime worked! Is there someway that they could be in the right? Maybe some sort of clause in her employment contract that makes this legal? If so, I thought that the BCEA would overrule all contracts?

2) Work on public holidays

As the store is open 7 days a week, occasionally (almost always) she works on a public holiday. Are they able to force her to work on a public holiday? She also occasionally works on the Sundays? are they able to force her to work on Sundays?

Any input/ suggestions as to whether she would have a case would be appreciated.

Thanks
 
Time off in lieu of overtime worked is a standard practice specially in the retail sector. Working on weekends and public holidays are also SOP. When your GF signed her employment contract all this would have been in there. BCoE does protect the worked from being exploited but if you sign a contract certain clauses allow the employment contract to supersede the BCoE. Aslong as she gets time off for hours worked outside of her normal hours you have no recourse

I don't see a way out for your GF short of leaving the retail industry.
 
"If an employee is covered by the BCEA, terms and conditions of employment in the BCEA override those in any contract of employment which are less favourable to the employee than those in the BCEA. In other words the contract cannot be less favourable to the employee than the conditions laid down in the law" - http://www.paralegaladvice.org.za/docs/chap06/02.html
 
Basic Condition of Employment Act

The Basic Conditions of Employment Act applies to all employers and workers, but not members of the -

National Defence Force,
National Intelligence Agency, or
South African Secret Service; or
unpaid volunteers working for charity.
The section of the Act that regulate working hours does not apply to:

workers in senior management
sales staff who travel and regulate their own working hours
workers who work less than 24 hours in a month
workers who earn more than R115 572 per year
workers engaged in emergency work are excluded from certain provisions
Click to expand...
 
bex.cpt said:
Basic Condition of Employment Act
Click to expand...

The Basic Conditions of Employment Act applies to all employers and workers, but not members of the -

National Defence Force,
National Intelligence Agency, or
South African Secret Service; or
unpaid volunteers working for charity.
The section of the Act that regulate working hours does not apply to:

workers in senior management
sales staff who travel and regulate their own working hours
workers who work less than 24 hours in a month
workers who earn more than R115 572 per year
workers engaged in emergency work are excluded from certain provisions.

She does not earn more than that, and therefore the section that applies to regulating working hours, applies to her!......
 
bex.cpt said:
Time off in lieu of overtime worked is a standard practice specially in the retail sector. Working on weekends and public holidays are also SOP. When your GF signed her employment contract all this would have been in there. BCoE does protect the worked from being exploited but if you sign a contract certain clauses allow the employment contract to supersede the BCoE. Aslong as she gets time off for hours worked outside of her normal hours you have no recourse

I don't see a way out for your GF short of leaving the retail industry.
Click to expand...

http://www.labourguide.co.za/conditions-of-employment/working-hours-and-overtime-763

"We receive many enquiries on this subject, particularly from employers and employees in the hospitality industry, the IT industry, call centres and so on. The reason and that these inquiries come through to us is because, for some unknown reason, employers and employees in the these industries – known as the "24/7" industries - have somehow developed the notion that they are "different" from any other industry"

"No employee may work more than 45 hours per week normal time and the no employee may work more than 10 hours per week overtime. This applies irrespective of what industry you are in, because the act does not differentiate between different types of industry or employment environment. The only document that may bring about a different condition would be a sectoral determination, or perhaps a Main agreement or collective agreement."
 
No clause in an employment contract supersedes the BCEA! There is even a clause in the BCEA that states that!
 
Edduck said:
also I think working on sundays/public holidays amounts to double pay!
Click to expand...

This is a misunderstood area because the law says that you get paid a minimum of 5hours for anywork you do on Public Holidays - so if you work for 30 minutes or 5 hours you get paid the same daily wage. The reality is I would like to see this happen in the real world. I actually plan to study labour law so I can stand up for my rights.
 
She should be covered by the Sectoral Determination for the Retail Industry - this is bascially an industry-specifc BCEA. It overrides the BCEA, unless the determination itself is "silent" on a matter.

Check it out here:
http://www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-9-wholesale-and-retail-sector-1

If she is working for a retailer, (specifically an "established" one), then they should have their bases covered in the employment contract. For instance, the 15 hours overtime is permissible ito the SD, but only by agreement, and it may only be applied for 2 months within any 12 month period. So, if it is not written into her contract, or not applied as above, she may have a case.

As for time off in lieu of overtime this is a permissible practice - provided she receives 90 minutes paid time off for every hour o/t worked. This is by agreement and as I understand it, may only be valid for 12 months at a time. Again, check the contract and also the application thereof.

They can, (and if she is in retail, will), expect that she works on Sundays. Public holidays are by agreement, so again, her contract should cover this. Be mindful of the payment requirements as per the SD for time worked on Sundays/public holidays.

In essence, if her contract has covered the above issues and they are applied as per the SD, I'm afraid there is not much she can do about it.
 
I mentioned that she worked 7 days in the week overtime. on the first two days from 9am - 12am (15 hour day) and the other 5 days 12 - 12 (12 hour day). Lets assume a normal work week is 45 hours. Total time worked for the "week" is 87 hours. Total overtime worked for the week is 42 hours!! not 15 hours!! Do you think she will have a case? What would her steps be...

Any suggestions?
 
Private Ryan said:
I mentioned that she worked 7 days in the week overtime. on the first two days from 9am - 12am (15 hour day) and the other 5 days 12 - 12 (12 hour day). Lets assume a normal work week is 45 hours. Total time worked for the "week" is 87 hours. Total overtime worked for the week is 42 hours!! not 15 hours!! Do you think she will have a case? What would her steps be...

Any suggestions?
Click to expand...

Sorry, I should have read your orginal post properly! It seems they are interpreting the 15 hours as what she can work per day as opposed to week! I don't see anything in the SD that makes that acceptable - other than her position, ie she is not a member of management, if she was, the normal requirements ito hours/ot would not apply, - the only other instance where these hours could be permissable is in the event of what the SD refers to as "emergency work" - which this clearly is not based on the fact that it is a pre-planned/scheduled activity.

She could either refer the matter to the Labour Department or lodge a dispute for an unfair labour practice at the CCMA . In my opinion, it is best to try and resolve things internally first - but this is not always possible for obvious reasons. They could make life difficult for her or view her as a "trouble-maker". It really depends on the environment and the people she is working with. Either way, if she chooses to talk to them about it first, she should avoid a confrontational approach and simply put it to them that she "doesn't understand" the policy of o/t and quesiton whether it is legit - if they respond by saying it is a legit practice, she should refer to the relevant sections of the act to support her "argument" - she could/should also try to get something from the company in writing explaining its "overtime" policy. If she does approach them first, ensure that all communicaitons are reduced to wrtiting - (including her intial querying of the matter) - this (and the responses, if any), could prove to be useful/vital information further down the track.
 
One last thing. Any idea on how the dispute will work? Would she need to get a lawyer? What would the fees be (ballpark figure). I'm just picturing her and her lawyer against a major organisation and all of their lawyers...
 
Private Ryan said:
One last thing. Any idea on how the dispute will work? Would she need to get a lawyer? What would the fees be (ballpark figure). I'm just picturing her and her lawyer against a major organisation and all of their lawyers...
Click to expand...

If she gets the DOL to investigate, then there would not be any fees - she would also not have to pay anything to refer the matter to CCMA. There are regulations about legal representation at the CCMA - you may want to enquire directly by them about this. From what I recall, I doubt whether the CCMA would allow legal representation for a matter such as this unless both parties agree to it. (I could be wrong though - so best double check)

I'm assuming she is not keen on taking it up with them directly prior to lodging a dispute?
 
To everybody whether employee or employer; please buy this book.

http://www.loot.co.za/shop/main.jsp?page=detail&id=swng-774-g180

The Juta store in Hatfield might be a bit cheaper.

They even quote John Grogan in court cases, and its easy to read. You will thank me one day for this.

ps. BCEA is busy changing so just take note of this as the book might be outdated regarding the new BCEA amendments.
 
cbrunsdonza said:
Actually that figure is now closer to R200K (it was R186K last year).
Click to expand...

In terms of a ministerial determination as permitted by section 6(3) of this Act: employees earning in excess of R 149 763-00 per annum are excluded from section 6 to 17 and 18(3).
 
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