The normal shift pattern at a Port Elizabeth factory, which turned out to be in contradiction with legal requirements, was recently changed by management.

Our reader says the new shift pattern will only allow workers a maximum of three weekends off per year.

He says in the past they only used to work on weekdays, unless circumstances necessitated working over weekends. In these instances, he says, they were approached by management (who requested the overtime) and remunerated accordingly.

He is a member of the Food Allied Workers Union (Fawu) and says the new shift pattern was implemented without any input from the employees.

His question is whether management may force them to work over weekends and if they are allowed to alter the shift pattern unilaterally.

If the previous shift pattern was indeed in contravention of the Basic Conditions of Employment Act (BCEA), management would have had no alternative other than to bring it in line with its requirements.

According to the BCEA, employees are allowed to work a maximum of 45 ordinary working hours and up to a maximum of five overtime hours per week at the prescribed remuneration.

Unless an employee is given 30 minutes off for each hour worked overtime at his normal rate or 90 minutes off in lieu of any overtime payment, the overtime rate is one and a half times the normal wage.

Time off instead of overtime payment must be taken within a month, unless the employee reaches an agreement with the employer – in writing – to extend this period up to a maximum of 12 months.

The BCEA does not affect the employer’s right to ask workers to work overtime, even though overtime is voluntary.

The act further prescribes mandatory daily and weekly rest periods. An employer must grant an employee a daily rest of at least 12 consecutive hours between ending work and starting the next day and a weekly rest of at least thirty-six consecutive hours which, unless otherwise agreed, must include a Sunday.

Shift workers may be required to work over weekends, but the shifts must alternate in such a manner that weekend work is rotated. This could for example be achieved through rotating, two-group, six-day, twelve-hour shifts.

For instance, the one group works from Monday to Wednesday and the other from Thursday to Saturday. The groups can then swap every month, term or six months to give everyone equal opportunity to have weekends off.

Where shifts do not apply, but workers are required to work on weekends – for example in the banking industry – employees will usually work alternating weekends. However, employees must get advance notice of their schedule.

If normal working hours – as stipulated in a contract of employment – include weekend work, the employee is contractually bound to it.

Unless our reader’s company’s initial shift pattern contradicted the stipulations of the act, the company would have had to negotiate with the applicable trade union to implement any changes.

If a collective agreement is reached between a company and trade union, members have to accept the outcome – even if they are not consulted on the matter. In essence, they empower the union to act on their behalf.

Therefore members will have to adhere to such agreements, even if they disagree with it or resign from the union.

Section 23 of the Labour Relations Act (LRA) states that any agreement reached between an employer and trade union is binding and that an individual may not repudiate such a decision.

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Booysen & Rossouw Attorneys in Port Elizabeth specialises in the fields of labour relations and injuries on duty. The firm also deals with all other legal matters.

Issued by:

Full Stop Communications

Coetzee Gouws
041 368 4992
082 575 7991

On behalf of:

Booysen & Rossouw Attorneys