Please note that this pertains to South African Labour Relations, Basic Conditions of Employment Act and Best Practice.
We haven’t visited with my favourite protagonists for some time now, so let’s re-introduce them.
We have George who is a Salesman at a retail store and Mike who owns the retail store.
Mike wants to do a year-end stock take after hours so as not to interfere with the daily turnover and he, therefore, asks all the staff to make themselves available to work overtime on the Sunday afternoon, after hours to do the stocktake.
George has decided that he will not work overtime. Mike is furious and wants to discipline George.
We’ve all been there I am sure.
Here’s the thing though – you cannot force a staff member to work overtime unless there is a documented and signed agreement in place and this is in accordance with the BCEA (Basic Conditions of Employment Act) Section 10(1)(a).
When reading the BCEA, you will note that they have made provision for a certain number of hours of overtime. The Bargaining Councils have also made this provision but that doesn’t mean that you can force someone to work overtime. You still have to get the consent of the employees.
So how do you get around this problem, I mean realistically speaking, no one wants to have to rush around to all the staff with Letters of Consent, every time that you want them to work overtime.
It’s actually quite simple – you put a clause in the Letter of Appointment/Contract that stipulates that they agree to work overtime from time to time. If this clause is not in your Letter of Appointment/Contract, as a standard requirement, what you will have in fact is a workforce who will have a lot of leverage over you.
Why do I say that – well here is another scenario. Let’s go back to George and Mike. Let’s take the same setting. Now all the staff see that George has refused to work overtime and they now know that they are not obliged to work overtime and they also know that being yearend, Mike has no option but to do the stocktake, for the year-end figures. If Mike does the stock take during working hours it will impact his turnover as well as his year-end figures and if he doesn’t do the stocktake by close of business on the last working day of the year, this will also impact his figures.
What do they do, well George and his fellow workers go into “demand” mode? They demand additional overtime pay, they demand a food allowance, they demand an additional travel allowance and they also demand time off for time worked.
Mike is in no position to do anything but agrees to their conditions because the reality of the situation is that it would cost him more in the long run if he didn’t do the stock take on time. There would be costs on time lost as well as the time it took to adjust figures and a whole bunch of other issues to be taken into account.
So putting this clause as a standard into your Letter of Appointment/Contract could save you a huge amount of headache and money in the long run.
Make no mistake, staff can still “refuse” to work the overtime but then it becomes “Breach of Contract” and the matter can then be dealt with as such.
As always, if you are not sure about what to do, contact a reputable Labour Attorney to assist you.