Section 10 of the Basic Conditions of Employment Act (‘the BCEA’) provides that an employer may not require or permit an employee to work overtime unless there is an agreement to work overtime.
If there is such an agreement, a refusal to work agreed overtime amounts to misconduct.
Agreement to work overtime
· The agreement does not have to be in writing, but in order to avoid disputes it is advisable to record it in writing;
· The contract of employment may contain an agreement to work overtime if the need arises. If an employee refuses to work agreed overtime, it amounts to a breach of contract and disciplinary action can be taken against the employee;
· If employees collectively refuse to work agreed overtime it amounts to industrial action and the relevant provisions pertaining to strike law would apply. (Note: Some Bargaining Council Agreements may contain specific provisions that regulate overtime in a particular industry or sector);
· Section 6 of the BCEA provides that the normal requirement that overtime must be by agreement does not apply in cases where ‘work is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work’. If these circumstances exist and employees refuse to work overtime they may be subjected to disciplinary action.