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You and Your Rights

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You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Night Shift Employees Are Entitled To An Allowance

The Basic Conditions of Employment Act (BCEA) sets out to regulate the right to fair labour practices in terms of section 28 of the Constitution.

The BCEA accomplishes this by establishing and enforcing basic conditions of employment and by regulating the variation of basic conditions of employment.

 

In terms of section 17 of the BCEA, any work performed after 18:00 and before 06:00 the following day is considered night work. An agreement is required between the employer and employee in this regard. In one of its many judgments, the Labour Appeal Court held that an agreement specifically referring to working shifts at night is required. An agreement between an employer and an employee to generally work shifts would not meet the requirement of the BCEA unless such an agreement specifically makes mention of working night shifts and the employee is aware of such a requirement.

In terms of the BCEA the employee should be compensated by either an allowance which may be a shift allowance, or by a reduction of working hours. This is also applicable to employees who may not work the entire period mandated for in the BCEA but only work for a portion of the relevant night time period. The BCEA does not specify a minimum allowance that must be paid for night work. The amount payable in respect of a minimum allowance may be determined by collective bargaining or individual negotiation. Where an employee is required to work the maximum permitted hours of work and is not granted a reduction in working hours, then an allowance is compulsory. Labour broker employees are also to be paid a night work allowance by their labour broker employer and not the business for which they are working.

If an employee is required to perform night work, the employer must ensure that transportation is available between the employee's place of residence and the work-place at the commencement and conclusion of the employee's shift. However, an employer is not required to pay for the transport.

An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must inform the employee in writing, or orally if the employee is not able to understand written communication, in a language that the employee understands, of any health and safety hazards associated with the work that the employee is required to perform. The employee may request the employer to enable the employee to undergo a medical examination, for the account of the employer, concerning such hazards. The employer should also endeavour to transfer the employee to suitable day work within a reasonable time if either the employee suffers from a health condition associated with the performance of night work or it is practical to do so.

Submitted by Lavery Modise, deputy chairperson of Eversheds, and Nadeem Mahomed, a candidate attorney at Eversheds. www.eversheds.co.za

October 2010

Disclaimer :: You and Your Rights
Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.
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General Disclaimer: The content of Legal City does not constitute legal, tax or financial advice, nor does it necessarily reflect the views of our management, staff, shareholders, associates, contributors, authors or suppliers. Even though every endeavour has been made to ensure the accuracy of this information we cannot be held responsible for any errors and/or omissions. By using this web site you agree to accept and abide by our terms and conditions.
This web site and all its content is copyright © 2000-2014, Legal City CC • Web site managed with qPortal Content Management v 4.0.0 • This page loaded on September 30, 2014 at 3:48:22 pm, SA Standard Time.