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.
