Overtime

[marco79]

The standard working hours per week at our company is 40 hours. I am site based and there is a general rule of thumb that you work Contractors hours. For the inconvenience of working outside on the road and longer hours we get a site allowance. I am currently getting a 8% site allowance.

Since I started working on this project I have been working anything between 50 and 55 hours per week. Now this I'm not to worried about but a junior colleague that's on contract with the company is starting to complain about the working hours.

Because the construction contractor is behind on the project, and the fact that winter is around the corner, the contractor wants speed up progress. He is proposing to work 12 to 13 hours week days and 10 hours Saturdays and Sundays. This will push our work hours up to 80 hours per week.

Would it be reasonable for me to ask for extra compensation from our company for this additional time? Or does the 8% allowance cover for all additional time worked?

 

[Uraeus]

I wouldn't be shy to ask my boss for more, c'mon you are helping them achieve their goals
at the expense of your leisure time.

Compensation is definitely in order, either now or down the line when the project pays off.
Alot of people put in hectic hours into projects for months with the hopes of getting a nice big bonus at the end..
there is alot of risk with that as you may never get that bonus.

In my industry any work over 40 hours per week is credited onto the leave balance, so after working a few long weeks,
you can take paid leave at the end.

It can depend on your contract though and will need to be negotiated with your employer.

 

[marco79]

I'm a permanent staff member and my junior colleague is on contract. I will have a glance over my contract over the weekend to see just what is mentioned about overtime.

I always thought he you earn under R120000 per annum you could claim overtime and you get no overtime if yet earn over R120000 per annum.

 

[Uraeus]

Overtime
All overtime is voluntary and may only be worked by agreement between employer and employee. Maximum permissible overtime is 3 hours on anyone day or 10 hours in any 1 week. Remuneration must be at 1, 5 times the normal wage rate except for Sunday work and work on public holidays, which must be remunerated at twice the normal wage rate. Time off, calculated on the same formula, may be granted instead of payment, but only by agreement with the employee.

Employees who earn in excess of the present threshold amount are not subject to the provisions of section 10 (overtime) of The Basic Conditions of Employment Act. This means that such employees cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off in view of payment.

However, contrary to popular belief, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation. All forced labour is prohibited in terms of section 48 of the BCEA, and should the employer require such employees to work overtime then the hours to be worked and the basis of compensation must be negotiated with the employee. Should the employer refuse to compensate for overtime worked in the case of an "over the threshold" employee, then the employee is entitled to refuse to work the overtime.

Link

The above is interesting. Generally I have no objection to working overtime, but when it is for an extended period
of time it is natural to object. Especially without compensation. It seems you cant demand more pay as well as your employer cant demand you work overtime.. but if is it stipulated in your contract that overtime is expected of you, then I am not sure what will happen.

They cannot dismiss you on grounds of not wanting to work over time as legally you are not meant to work more than 50 hours per week.

 

[Gory51]

There is an overtime earning threshold, but some companies do pay overtime even if you are above that threshold. You need to check you contract. You can however negotiate compensation of some sort with your employer if you are above that earning threshold. You cannot be forced to work overtime without some form of compensation, but you can voluntarily agree to do so. You can refuse to work overtime( unwise sometimes) unless it is vital work that needs to be performed. Working 160 hrs overtime is questionable though, as 40 hours per month is the maximum specified under the OHS Act. 160 hours overtime per month will get the Department of Labour on your heels very quickly

Also your site Agent/Contract Manager should get a klap in their head for wanting to push so much overtime. In construction, overtime work means you make way less profit on productivities and with an extra 160 hrs of overtime per month being requested, it would make more sense to bring in extra resources to work at normal daytime rates of pay.

Unfortunately in Construction, I have yet to see a company in the Private sector pay me a cent above my salary for extra hours worked. Anything from Junior Foreman upwards normally seem to be on Salary Staff, and don't normally get overtime. ( Not a law/rule, but what I have experienced)

EDIT: Aha I see I was beaten to this while typing my long story, lol

 

[marco79]

I work for the consultant and not for the contractor.

 

[guest2013-1]

I work for the consultant and not for the contractor.

The contractor should then approach the consultant with the proposal of overtime and they both need to come into an agreement regarding remuneration for overtime since you're paid by the consultant and not the contractor.

I believe you should approach your boss with the information and ask them to negotiate everyone's rate for working that much overtime. The 8% covers on-site work (meaning, not in the office) and has nothing to do with the actual overtime you'd be putting in.

 

[marco79]

The contractor will be presenting the proposal to my company next week. I just want to get a feeling of what to say to my boss if he discusses this proposal with us.

 

[Voicy]

I work for the consultant and not for the contractor.

When I was working at consultants I put in 120hrs overtime the one month to cover my boss's ass on meeting a project's design deadlines.

We didn't get paid overtime rates. Since then I've put in +- 100hrs overtime for another of his projects without compensation. At the end of the project, they split up the "bonus profit" equally between all the staff regardless of overtime put in. So those who had kids etc. went home at 6pm while I stayed on until 11pm-1am every night incl weekends. Never again. If it was my own project that was lagging it would be a different story.

 

[noxibox]

I always thought he you earn under R120000 per annum you could claim overtime and you get no overtime if yet earn over R120000 per annum.

No, the presumption is that those who earn over the specified amount are in a position to negotiate their own overtime. Companies like to misinterpret the intent of that part of the law and tell employees they're not entitled to overtime.

This means that such employees cannot demand to be paid for overtime worked, nor can they demand to be granted paid time off in view of payment.

However, contrary to popular belief, the employer also cannot force such employees to work overtime and cannot demand that they work overtime without compensation.

You can demand to be paid for overtime. That is essentially what refusing to work overtime if your employer won't pay you means.

 

[xrapidx]

You'll be long gone and forgotten by then in a few years... so ask now.

 

[noxibox]

If you're a valuable asset and can easily find other employment, then don't take nonsense from your employer. Get every cent out of them that you can because they'll pay you as little as they can get away with.

 

[ponder]

The standard working hours per week at our company is 40 hours. I am site based and there is a general rule of thumb that you work Contractors hours. For the inconvenience of working outside on the road and longer hours we get a site allowance. I am currently getting a 8% site allowance.

Since I started working on this project I have been working anything between 50 and 55 hours per week. Now this I'm not to worried about but a junior colleague that's on contract with the company is starting to complain about the working hours.

Because the construction contractor is behind on the project, and the fact that winter is around the corner, the contractor wants speed up progress. He is proposing to work 12 to 13 hours week days and 10 hours Saturdays and Sundays. This will push our work hours up to 80 hours per week.

Would it be reasonable for me to ask for extra compensation from our company for this additional time? Or does the 8% allowance cover for all additional time worked?

Screw that and look at labour law, there is no such thing as contractors hours. You work overtime you get paid the legal requirement and you are only allowed to work X hours per day/week.

When I was working at consultants I put in 120hrs overtime the one month to cover my boss's ass on meeting a project's design deadlines.

We didn't get paid overtime rates. Since then I've put in +- 100hrs overtime for another of his projects without compensation. At the end of the project, they split up the "bonus profit" equally between all the staff regardless of overtime put in. So those who had kids etc. went home at 6pm while I stayed on until 11pm-1am every night incl weekends. Never again. If it was my own project that was lagging it would be a different story.

And that is discrimination. I recall when I started working and they always picked the single guys to do the overtime. Well I spoke my mind saying marriage & kids is a choice and you cant discriminate against a person based on their marital status but that's how it worked in the old days. I was not popular but I did not give a fsck, you get paid you pull your weight end of story.

 

[Other Pineapple Smurf]

No, the presumption is that those who earn over the specified amount are in a position to negotiate their own overtime. Companies like to misinterpret the intent of that part of the law and tell employees they're not entitled to overtime..

Department of Labour also says that if you earn above a certain threshold and hold a senior position, then you should be expected to work longer hours as it goes with job & income. The threshold is now in the region of R200K pm. But its one of those grey-areas.

EDIT:
(From an old MyBB thread - the salary figure has changed though):

If a person is earning a gross salary of more than R115 572 per year (R9631 per month) then the following sections of the BCEA will not apply to them:

section 9: ordinary hours of work
section 10: overtime
ection 11: Compressed working week
section 12: Averaging of hours of work
section 14: meal intervals
section 15: daily and weekly rest period
section 16: pay for work on Sundays
section 17: night work
section 18(3): Public holidays (where an employee may work on a public holiday on which he/she would not have ordinarily worked)

 

[ponder]

Department of Labour also says that if you earn above a certain threshold and hold a senior position, then you should be expected to work longer hours as it goes with job & income. The threshold is now in the region of R200K pm. But its one of those grey-areas.

Got any legal references to that? Never really claimed overtime as I preferred time off

 

[Other Pineapple Smurf]

Got any legal references to that? Never really claimed overtime as I preferred time off

Its somewhere on the labour dot gov site, will bookmark it next time I see it. I guess when your earning a salary you generally do not really want to share such links.

 

[ponder]

Its somewhere on the labour dot gov site, will bookmark it next time I see it. I guess when your earning a salary you generally do not really want to share such links.

That makes absolutely no sense.

There is something in labour law about upper management but it does not come into play at those salary levels but it's been a while since I checked in all honesty.

 

[noxibox]

Got any legal references to that? Never really claimed overtime as I preferred time off

There has been at least one case where they ruled against the company's literal interpretation of no pay for overtime if you earn more than a certain amount. What the law intends to say is that the government has not set down the details of how overtime will be compensated for those who earn over the threshhold, leaving it up to the employee and employer to come to an agreement. The law does explicitly exclude certain types of employees from the working hours restrictions, but it's a short list and very specific. Senior management for example can involve extended hours, but someone in that position will usually be able to negotiate compensation that takes the hours into account.

However anyone who chooses to interpret those parts of the law literally and resign themselves to working long hours, Sundays, public holidays, for no pay is only screwing themselves. That's their choice. Anyone with any sense who has valuable skills will stand up and refuse to give up their time for free.

 

[diabolus]

Here's a nice answer from Solidarity on this topic, specifically if you earn above the threshold:

http://www.solidaritylegalservices.co.za/faq/overtime-2/

First, the reason why an employer cannot simply enforce overtime is contained in section 48 of the Act.
Section 48: Prohibition of forced labour
1. Subject to the Constitution, all forced labour is prohibited.
2. No person may for his or her own benefit or for the benefit of someone else cause, demand or impose forced labour in cobravention of subsection 1.
3. A person who contravenes subsection (1) or (2), commits an offence.

Secondly, as far as the arrangement of working hours is concerned, the employer is further compelled to take section 7 of the Act into consideration.

Section 7: Regulation of working time
Each employer must regulate the working time of each employee
1. In accordance with the provisions of any Act regulating occupational health and safety;
2. with due regard to the health and safety of employees;
3. with due regard to the Code of Good Practice on the Regulation of Working Time issued under section 87 (1)(a); and
4. with due regard to employees’ family responsibilities.

Although an employee can therefore not claim overtime in terms of section 10, an employee is entitled to negotiate. It is therefore important for an employer and employee to agree beforehand on the number of normal hours and the number of overtime hours that will be worked. They must also agree on the tariff for the hours overtime or work on Sundays and this can differ completely from the tariffs mentioned in the BCEA.

In the workplace contracts of service are generally drawn up very broadly and can be interpreted accordingly. Clauses such as: “The employee hereby agrees to work overtime from time to time, as well as on Sundays and public holidays”, or “…as the operational requirements demand ” occur regularly and should be approached with caution.

To summarise, the following:
• If an employee earns more than R172 000 a year, the provisions of sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) do not apply to his of her service contract. This means that both an employer and the employee cannot appeal to it or set demands in terms of these sections.
• The fact that an employee earns more than R172 000 a year, does not automatically compel him or her to work overtime, and vice versa it does not make an employer automatically entitled to overtime.
• The service contract that has been agreed upon will determine what the specific terms and conditions are and therefore it is important that it be drawn up clearly and specifically.
• Even if an employee earns more than R172 000 a year, an employer is still bound to sections 7 en 48 of the Basic Conditions of Service Act.

 

[marco79]

I will discuss this with my manager and see what he says. There are office-bound colleagues of mine that work overtime, but they generally just take the time off.