Construction workers covered by ESIC and EPF Act

On the basis of licenses obtained by various contractors of Delhi Metro Rail Corporation (DMRC) and Commonwealth Games sites, the total number of construction workers engaged for Delhi Metro and Commonwealth Games sites are 20,364 and 11,089 respectively.



As per estimates of National Sample Survey (2004-2005) about 25.71 million building and other construction workers are estimated in India. The construction workers who are employed in an establishment covered under the EPF & MP Act, 1952 and eligible for membership are covered.



The construction workers working at construction site are not covered under the ESI Act, 1948. However, construction workers working within a factory covered under the Act are eligible for cover for the limited period when they are working in that factory. The power to extend the Scheme to any other establishments (other than factories) lies with the concerned State Governments. None of the State Governments have, so far, extended the Scheme to construction workers.



The main reason for non-coverage of these workers is that they are mostly migratory and move on to some other site as the construction project is completed. One of the pre-condition for extending ESI Act to any area is provision of infrastructure for medical care and if a dispensary is set-up at an area where construction work is going on and workers move out from that area after the project is completed, the infrastructure will become unutilized and infructuous.



This information was given by the Minister of State for Labour and Employment, Shri Harish Rawat in a written reply in the Rajya Sabha today.

Employment Law Questions & Answers

Is a worker an Employee or Self-Employed ?

The difference between being an employee or self-employed will affect that person's employment rights. In deciding this question the law says that the following has to be looked at:

a) Does the employer control what work is done ?

b) Does the employer control where, when and how the work is done ?

c) Does the employer provide holiday and sickness pay ?

d) Is the employer taking the financial risk ?

e) Is the employer responsible for paying Tax & National Insurance Contributions ?

If the answers to the above are yes then that person is likely to be employed, rather than self-employed, no matter what the employment contract says.

What information must an Employer give to an Employee when they start ?

The employer by law has to give an employee a "statement" of employment, within 2 months of the employee starting work.

This covers what would normally be in a Contract of Employment, however this is not a contract between the employer and the employee.

If there is a dispute and the employer has not given the employee a contract, the court may use the terms in the statement to decide the terms of employment.

If no statement has been given within 2 months, an employee can apply to an Employment Tribunal at any time after the 2 month period, (or within 3 months of termination of the employment) for the tribunal to determine what should have been in the statement.

What should be in an employment statement ?

The employer must include the following terms in an employment statement:

1. Names of the Employer & Employee.

2. Date the employment started, including any periods of continuous employment with a previous employer, where the previous employer was taken over by the new employer.

3. Pay, including the employee's scale of pay and how it is calculated.

4. When the employee will be paid (weekly, fortnightly or monthly).

5. Hours of work and terms related to the employee's hours (for example if the employee works shifts or overtime).

6. Holidays (how much, when and whether the employee will get holiday pay).

7. Sickness procedure and entitlements.

8. Pension Scheme details.

9. Notice period.

10. Job Title and description of job.

11. Where the employee is expected to work.

12. Any collective agreements which directly affect the terms and conditions of employment.

13. Details of work abroad, if it is for longer than 1 month.

14. The length of the contract, if the employee has been employed on a fixed term contract.

15. Disciplinary Rules and Complaints Procedure.

What happens if the employer decides to change the employment statement ?

The employer must tell the employee of any changes as soon as possible.

The law states that this must be within 1 month of the change.

Should an employer give an employee a written contract ?

An employer does not have to give the employee a written contract or if they do it may not necessarily cover all the details of their employment.

However, an employee is entitled to an employment statement.

What obligations/duties does the employee owe to their employer ?

These may be explained in the contract of employment, but the law also says that there are certain obligations and duties owed by an employee to their employer, even if the contract does not mention them.

These include:

1. To do what a reasonable employee would do in any situation.

2. Duty to be honest.

3. Not to disrupt business, for example, taking part in industrial action.

4. Disclose wrongdoing (does not include "spent" convictions). But, the employee must disclose wrongdoing by other employees, even if this will incriminate them.

5. Carry out and follow orders of the employer, (as long as they are legal).

6. Not to disclose the employer's confidential information.

7. Work with reasonable care and skill.

8. Look after the employer's property if using it.

9. Not to compete in business against the employer while still working for them as an employee.

10. Not to take bribes.

11. Be prepared to change when the job changes, for example, if computers or other machinery are introduced to help the employee do their job.

12. Give any inventions to employer if these are developed by the employee during their employment.

What obligations/duties does the employer owe to the employee ?

An employer owes their employee the following duties, which again can be implied by the law or may be found in the employment contract.

1. Duty to pay the employee the agreed amount if the employee arrives for work and is able to work.

2. Provide the employee with work to do, (this is limited). However, for example, if the employee is paid by commission and the employer does not give the employee any work or if not working could damage the employee's reputation, for example if you are a senior executive in a company. Then the employer may have broken their duty to the employee.

3. Observe Health & Safety Regulations.

4. Give employees correct information about rights under their contract.

5. Give employees reasonable opportunity to have their complaints looked at.

6. There is no duty to provide references to an employee. (except where the reference is required by the Financial Service Authority.) However, if a reference is provided the employer owes a duty to the employee to make sure the reference is completed with reasonable skill and care and is true, accurate and fair. The employer also owes a duty to the receiver of the reference not to make any negligent statements about the employee.

7. The employer and employee also owe each other a duty of "Mutual Trust & Confidence", basically they must show respect for each other.

Examples of breaches:

Harassing or victimising employees, particularly in front of other employees who are less senior than the victim.

Physical violence by employer or employee.

Theft by employee.

There is no duty to pay Contractual Sick Pay.

There is an obligation on an employer to pay statutory sick pay for the first 28 weeks an employee is absent due to sickness in any period of 3 years. If an employee is eligible.

They will be entitled to at least 4 weeks holiday in any one year period.

What are the employee's rights to notice before dismissal ?

This will usually be explained in the contract.
If it is not or if the employee does not have a contract the law says that:

a) An employee is entitled to a minimum of 1 weeks' notice of dismissal if they have worked continuously for 1 month, but less than 2 years.

b) After 2 years' employment a further 1 weeks' notice is required for each whole year of continuous employment.

This carries on with 1 weeks' notice for every year up to 12 years. This is the maximum under employment law, no matter how many years an employee works over 12 years this is what the law states is the maximum notice period.

It is important to remember that this is the minimum protection only, the employee's contract might allow a longer period of notice

What is Unfair Dismissal ?

Unfair Dismissal is when the following happens:

1. An employee is dismissed and they qualify for the right to bring an Unfair Dismissal claim. See Answer 13

2. The employer did not have a fair reason to dismiss the employee.

3. Or, the employer did have a fair reason, but the matter was dealt with unfairly.

Unfair dismissal is a statutory right as it is covered by an Act of Parliament.

What is Wrongful Dismissal ?

Wrongful Dismissal is where an employee has been dismissed without notice or an employee has not been given the right amount of notice, or the employment is terminated contrary to the contract. Wrongful Dismissal is based upon the actual contract between the employer and the employee and so breaches of that contract by the employer could give the employee the right to sue for Wrongful Dismissal.

There is no requirement to have been employed for at least one year in order to bring a claim.

The more senior an employee, the better their contract terms are likely to be.
Therefore a senior employee may be better off bringing a claim for Wrongful Dismissal, rather than Unfair Dismissal where maximum levels may be set on the compensation payable.

Can an employee bring a claim for both ?

Yes.
However, there will be an overlap in some of the compensation. Usually the compensation under Wrongful Dismissal will cancel out the Unfair Dismissal compensation.

How does an employee qualify for the right to bring an Unfair Dismissal Claim ?

To qualify for Unfair Dismissal protection an employee must have the following:

1. The employee must be working full or part-time, the actual amount of hours worked per week is irrelevant. Self-employed workers are excluded.

2. At least 1 year's continuous employment. For exceptions see Answer 14

3. Below 65 or the normal retirement age for the job at the date of their dismissal. For exceptions to this see Answer 14

4. Not of an excluded category, eg. the armed forces, police and share fishermen.

What are the exceptions to the 1 year rule under Unfair Dismissal ?

Normally an employee has to have 1 year's continuous employment with an employer to bring a claim for Unfair Dismissal.

The exceptions to this are:

a) If the dismissal is connected to the employee's Trade Union activities, carried out at an appropriate time, (This is usually out of work hours or during work with the employer's permission. This does not include strikes or working to rule).

b) The employee is dismissed for belonging to a Trade Union.

c) The employee is dismissed for refusing to join a Trade Union.

d) Dismissal was connected with the employee's pregnancy and maternity rights.

e) Dismissal of shop workers or those who work in the betting industry who object to working on Sundays.

f) Dismissal relating to a worker asserting their rights under employment laws.

g) Dismissal of an employee observing health & safety rules.

h) Dismissal of a worker elected as a representative for collective redundancy or transfer consultation purposes.

i) Dismissal of an employee for making a protected disclosure - "whistle-blowers".

Also if an employee is dismissed just before the 1 year period, for example 1 week before, an Employment Tribunal can add on the minimum notice period that the employee is entitled to (1 week) to give the employee the necessary 1 year.

This is done because Employment Tribunals realise that some employer's try to dismiss employees just before they qualify or threaten to do so to gain an advantage in for example pay talks.

This extension will not be given if an employee is dismissed for a serious reason, for example theft.

Is there a time limit for bringing an Unfair Dismissal Claim ?

An employee must bring an Unfair Dismissal claim within 3 monthsof being dismissed.

Extensions of this time are very rare, if an employee does not bring a claim within this time the employee will lose the right to claim.

Under the Employment Act 2002 it will be a requirement to raise a grievance first with the employer, before making a claim to a tribunal.

An employee should seek legal advice as soon as they are dismissed, giving their solicitor time to investigate the case and apply for an extension to the time limit to bring a tribunal claim, if necessary.

In the meantime an employee can still go through the company procedure.

Can an employee get Public Funding to bring a claim against an employer ?

Public Funding / Community Legal Services Funding is not available for bringing a claim.

However, if an employee is on a low income or benefits the employee will qualify for a certain amount of free advice under what is called the "Legal Help Scheme", (formerly advice & assistance scheme). SeePublic Funding section.

Most solicitors provide Legal Help advice.

An employee can however get Public Funding if appealing against an Employment Tribunal decision by taking the case to the Employment Appeal Tribunal (EAT).

What are an employee's maternity rights ?

As already stated in Answer 14 an employer cannot dismiss an employee because she is pregnant, it does not matter if the employee does not have 1 year's continuous employment with the employer. The dismissal will be automatically unfair.

1. A pregnant employee is entitled to Maternity Leave without having worked for 1 year. Ordinary maternity leave is 26 weeks.

They also have a right to Additional Maternity Leave. This starts at the end of the Ordinary Maternity Leave period and lasts for 26 weeks.

2. A pregnant employee also has the right to Maternity Pay, if she has worked for 26 weeks or more.

The 26 weeks is counted from 15 weeks before the week the baby is due.

So take the week that the baby is due and count back 15 weeks.

If an employee has worked for 26 weeks at that stage the employee can claim Maternity Pay, this is paid for 39 weeks. Please see the maternity section of the Employment Factsheet for details.

3. Right to same contractual terms whilst off work (except same pay).

4. Right to paid leave for ante-natal care.

5. Right to return to work under the same contractual conditions after ordinary maternity leave and a comparable position after additional maternity leave.

6. The employee should be offered alternative work (if it is available), if the pregnancy means they cannot do the work they are normally employed to do.

What are an employee's rights under Sex and Race Discrimination law ?

An employer is not allowed to discriminate on the following grounds:

1. Sex of employee or prospective employee.

2. Marital status of employee or prospective employee.

3. If an employee intends to undergo, is undergoing or has undergone gender reassignment.

4. Race, (this means colour, race, nationality or ethnic origins) of employee or prospective employee.

5. Also an employer cannot victimise an employee for bringing a complaint for discrimination or giving evidence in a complaint brought by another employee.

However, following the introduction of the Human Rights Act 1998 an Employment Tribunal has decided that the Sexual Discrimination 1975 does include sexual orientation, Ministry of Defence v. Macdonald. However, the Human Rights Act 1998 does not deal with compensation for discrimination.

DISCIPLINARY NOTICE

DISCIPLINARY NOTICE

Employee name_______________________________________________________________

Supervisor name_______________________________________________________________

Documentation of _____ Written warning or _____ Verbal warning

Statement of the problem:______________________________________

_______________________________________________________________________

_______________________________________________________________________

Has the employee received prior warnings on this subject? Yes No

Was the employee's activity in violation of Company policy? Yes No

If yes, describe how: ______________________________________________________

_______________________________________________________________________

Describe the corrective action to be taken by the Company and/or employee: _______________________________________________________________________

_______________________________________________________________________

Consequences of failure to improve performance or correct behavior: _______________________________________________________________________

_______________________________________________________________________

Employee Statement: _____________________________________________________

_______________________________________________________________________

_______________________________________________________________________

Employee Signature: ___________________________________ Date_____________

Supervisor Signature: __________________________________ Date_____________

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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EMPLOYEE NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT

EMPLOYEE NON-DISCLOSURE AND

CONFIDENTIALITY AGREEMENT

FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby acknowledged by ___________________________(Company), the undersigned employee hereby agrees and

acknowledges:

That during the course of my employ there may be disclosed to me certain of Company's trade secrets consisting but not limited to: technical information including methods, processes, formulae, compositions, systems, techniques, inventions, machines, computer programs and research projects, and business information including customer lists, pricing data, sources of supply, financial data and marketing, production, or merchandising systems or plans.

I agree that I shall not during, or at any time after the termination of my employment with the Company, disclose or divulge to others including future employers, any trade secrets, confidential information, or any other proprietary data of the Company in violation of this agreement.

That upon the termination of my employment from the Company: I shall return to the Company all documents and property of the Company, including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer lists, computer programs, and all other materials and all copies thereof relating in any way to the Company's business, or in any way obtained by me during the course of employ.

I further agree that I shall not retain copies, notes or abstracts of the foregoing.

The Company may notify any future or prospective employer or third party of the existence of this agreement, and shall be entitled to full injunctive relief, and any other legal remedies available for any breach.

This agreement shall be binding upon me and my personal representatives and successors in interest, and shall inure to the benefit of the Company, its successors and assigns.

Signed this _____ day of ____________________, 19____.

______________________________ _______________________________

Company Employee

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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EMPLOYMENT AGREEMENT

EMPLOYMENT AGREEMENT

This Agreement for Employment is made on this _____ day of _______, ___, by and between _________________________, "Employer"and ________________________________, "Employee.

The Employer shall employ Employee subject to the following terms and conditions.

1. Employment for the above Employee shall commence on ___________ (Date).

2. The following duties and responsibilities shall be competently performed by the Employee:

In addition to the duties stated above, the Employee shall perform such further and other duties required by the Employer.

3. The Employee shall work _______ through _______ from ____ A.M. to ____ P.M. and such additional hours as are required by the Employer for the Employee to competently perform the duties of his position. The Employee shall use his or her best efforts on behalf of the Employer.

4. The Employee shall comply with all stated standards of performance, policies, rules, and regulations. A company manual containing a more complete explanation of many of these standards has been given to the Employee. At this time, Employee acknowledges receipt of the company manual. The Employee shall also comply with such future Employer policies, rules, regulations, performance standards and manuals as may be published or amended from time to time.

5. The Employer shall make payment to the Employee a set amount as compensation for services rendered. The Employee agrees to accept the sum of __________ ($______) per year, payable ________________ in the amount of ___________ ($______). In addition to the above compensation, the Employee will be entitled to the following "fringe benefits":

6. This contract of employment may terminate upon the occurrence of any of the following events: (a) the death of the Employee; (b) the failure of the Employee to perform his duties satisfactorily after notice or warning thereof; (c) for just cause based upon nonperformance of duties by Employee; (d) economic reasons of the Employer which may arise during the term of this Agreement and which may be beyond the control of the Employer.

7. The Employee shall not, at any time during the period hereof, and for ____ years from the date of termination of this Agreement, directly or indirectly, within a geographic area of _____ miles, engage in, or become involved in any business competitive or similar to that of the Employer.

8. This Agreement may not be assigned without prior notice by either party. Such assignment is subject to the mutual consent and approval of any such assignment.

9. This Agreement constitutes the complete understanding between the parties, unless amended by a subsequent written instrument signed by the employer and employee. Any dispute under this contract shall be required to be resolved by binding arbitration of the parties hereto. Each party shall select one arbitrator and both arbitrators shall select a third. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

____________________________ ____________________________

Employer�s Signature Employee�s Signature

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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WARNING NOTICE

Date:

To:

Re: Warning Notice

Dear:

You and I met on the _____ day of ____________, 20__ to discuss your unsatisfactory performance. The following aspects of your performance were identified as being unsatisfactory:

In order to improve your performance, you should:

Your performance will be evaluated again on the _____ day of ____________, 20__. If your performance is not brought up to a satisfactory level by that time, further disciplinary or corrective action, including suspension or termination, may be taken.

Sincerely,

______________________________

Name, Title

I acknowledge that I have received a copy of this warning:

______________________________

Employee Signature

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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SALES REPRESENTATIVE AGREEMENT

SALES REPRESENTATIVE AGREEMENT

This agreement is made between _____________________________________________________ (Company) and _____________________________________________________(Sales Representative).

Sales Representative agrees to:

1. Represent and sell the Company's ______________________ products / services in the geographic area of _____________________________________________________.

2. Accurately represent and state Company policies to all potential and present customers.

3. Promptly mail in all leads and orders to the Company.

4. Inform the sales manager of all problems concerning Company customers within the sales territory.

5. Inform the sales manager if the Sales Representative is representing, or plans to represent any other business firm. In no event shall sales representative represent a competitive company or product line either within or outside the designated sales area.

6. Telephone the Company with reasonable frequency to discuss sales activity within the territory.

7. Provide company with 30-days notice should the Representative intend to terminate this agreement.

8. Return promptly all materials and samples provided by the Company to the Representative if either party terminates this agreement.

The Company Agrees to:

1. Pay the following commissions to the Sales Representative:

(a) _________ percent of all prepaid sales, except as stated in (4) below.

(b) _________ percent of all credit sales, except as stated in (4) below.

2. To negotiate in advance of sale the commission percentage to be paid on all orders that the Company allows a quantity discount or other trade concession.

3. Commissions on refunds to customers or merchandise returned by the customer in which a commission has already been paid to the Representative shall be deducted from future commissions to be paid to the Representative by the Company.

4. Except by special arrangement, the following shall not be commissioned: _____________________________________________________

5. To provide the Sales Representative with reasonable quantities of business cards, brochures, catalogs, and any product samples required for sales purposes.

6. To set minimum monthly quotas after consultation with the Sales Representative.

7. To grant Representative 30-days' notice should the Company wish to terminate this agreement.

8. To pay commissions to the Representative on sales from existing customers for a period of _______________ months after this agreement is terminated by either party.

This constitutes the entire agreement.

This agreement shall be binding upon the parties and their successors and assigns.

Signed this _____ day of _______________ , _____.

______________________________ Company

______________________________ Sales Representative

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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REQUEST FOR LEAVE OF ABSENCE WITHOUT PAY

REQUEST FOR LEAVE OF ABSENCE WITHOUT PAY

Name ____________________________________ S.S. # _____-_____-____

Address _____________________________________________________

Position ________________________________ Employment Date _______

Last Day to be Worked _______________ Return Date ______________

Request is made for leave of absence without pay for the following reason:

[ ] Disability [ ] Work Related Disability [ ] Educational Leave [ ] Military Leave

[ ] Personal Leave [ ] Pregnancy [ ] Other _____________________________________________________

Leave, if granted, may be used only for the purpose described above. I understand that the use of leave for any other purpose will be grounds for disciplinary action including termination of employment.

Employee Signature ___________________________ Date ____________

PHYSICIAN'S STATEMENT

If the request for leave is due to medical disability, please have your physician complete the following statement:

The above-named is a patient in my care, and is expected to be able to resume his usual occupation on or about __________________________.

Physicians Address _____________________________________________________

Phone Number ___________________________

Physician's Signature _______________________ Date _____________

Approval:

Department Manager: _______________________

[ ] Approved [ ] Denied Reason _______________________

Manager Signature ___________________________ Date _________

Personnel Manager __________________________

[ ] Approved [ ] Denied Reason ________________________

Manager Signature __________________________ Date __________

TO THE EMPLOYEE:

You are expected to return to work upon the date of expiration of your leave of absence.

Request for an extension of leave of absence must be made to the Personnel Department prior to the return date of your leave.

You have the responsibility for maintaining contact, i.e., the address and phone number of where you may be contacted.

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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NOTICE OF DISMISSAL

NOTICE OF DISMISSAL

Date: ________________________________

To: __________________________________

Cc: __________________________________

We regret to notify you that your employment with the firm shall be terminated on the ____ day of ____________, 20__, due to the following:

_______________________________________________________________________________.

You will receive severance pay in accordance with company policy. We will issue you a statement of accrued benefits within 30 days of termination. Your insurance benefits will continue in accordance with applicable law and/or provisions of our personnel policy.

Please contact ________________________________, at your earliest convenience, for an explanation of each of these items and to arrange for the return of any company property.

We sincerely regret this action is necessary.

Sincerely,

____________________________________

Warning:

These forms are provided AS IS. They may not be any good. Even if they are good in one jurisdiction, they may not work in another. And the facts of your situation may make these forms inappropriate for you. They are for informational purposes only, and you should consult an attorney before using them.

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What is Employment Law?

Employment law deals with the relationship between employers and employees. It covers a broad range of issues, including things like:

Wage and Hour-Employers are required to fairly compensate employees for time worked; this includes overtime pay for hourly employees who work over 40 hours in a week and providing wages that at least meet the minimum wage. If you have not received adequate pay for time worked, or have not received legally mandated time off for breaks, you may be able to take legal action against your employer.

Sexual Harassment-Employees have a right to work in an environment free from harassment. Sexual harassment can come in the form of sexual jokes or innuendos, unwanted sexual advances, inappropriate touching, and sexual favors in exchange for promotions or other job benefits. Employers must make sure they provide employees with a safe work environment. If you have been the victim of sexual harassment in the workplace by a superior or fellow employee, an employment law attorney can tell you what kind of legal recourse may be available to you.

Discrimination-Discrimination takes place whenever someone is not given a job, promotion or raise based on the color of their skin, age, national origin, religion, or sex. When job performance and experience are not the sole criteria for career advancement, discrimination may have taken place. If you suspect your employer of discriminatory hiring practices, contact an employment law attorney.

Whistleblowing-Whistleblowers are people who alert the authorities to the illegal or unethical practices of their employer. Oftentimes, whistleblowers lose their jobs or suffer other serious consequences for taking action against their employer. Such retaliatory action from an employer is generally prohibited in most cases of Whistleblowing. If you believe your employer is participating in illegal activity, it is important to speak with an employment law lawyer to make sure your rights are protected.

Wrongful Dismissal-Wrongful dismissal occurs when a person loses his or her job in a way that breaches the terms of his or her contract. This area of law can be tricky, so it is important to have an attorney on your side who understands employment law at both the state and federal level.

Workplace Safety-The Occupational Safety and Health Administration (OSHA) enforces workplace safety and health standards in businesses operating in the United States. When workplaces fail to comply with OSHA regulations and put employees at risk of undue harm, they may be held legally responsible for their willful or negligent disregard of the law.

Overtime work

In what circumstances can an employee be required to work overtime and what must you pay him or her?

Overtime work

In what circumstances can an employee be required to work overtime and what must you pay him or her?

Overtime and work on public holidays

In terms of The Basic Conditions of Employment Act 75 of 1997 (the Act) an employer may not oblige an employee to work overtime (the time that an employee works during a day or a week in excess of ordinary hours of work) on weekends or public holiday except in accordance with a signed agreement. Accordingly, if overtime work is required by business or operational requirements of the Company employees will be only be obliged to work on weekends or public holidays if they agree in writing to do so.

Calculation of overtime rates

These are the basic principals concerning overtime as contemplated by the Act:

· The Act does not apply to certain categories of employees such as members of the National Defence Force and will not apply to workers in senior management, sales staff who travel and regulate their own working hours and workers who work less than 24 hours in a month or who earn more than an amount gazetted from time to time;

· No employee will be remunerated for overtime work unless such overtime has been authorised by his or her manager or is required in terms of a work roster;

· Workers must receive 1.5 times their normal hourly pay or paid time off in exchange for overtime (or a combination of pay and time off);

· Workers may not work:

o overtime, unless by agreement

o more than 10 hours’ overtime a week (collective agreement may increase this to 15 hours per week for up to 2 months a year)

o more than 12 hours on any day

Remuneration for Overtime Work

Calculation of overtime pay based on a 5 day work week:

· Employees who work a five day work week are deemed to work 21.67 days per month;

· The working week consists of 45 ordinary hours per week;

· The working day is deemed to consist of 9 working hours for which the employee is paid, and a 1 hour meal break which is not paid time.

The formula for calculating the hourly rate of pay is:

Salary ÷ 21.67 (days per month) ÷ 9 (working hours) and 21.67 x 9 = Total working hours per month (195.03 hours)

Calculation of overtime pay based on a 6 day work week:

· Employees who work a six day work week are deemed to work 26 days per month;

· The working week consists of 45 ordinary hours per week;

· The working day is deemed to consist of 7½ working hours for which the employee is paid, and a 1 hour meal break which is notpaid time.

The formula for calculating the hourly rate of pay is:

Salary ÷ 26 (days per month) ÷ 7½ (working hours) and 26 x 7½ = Total working hours per month (195 hours)

Probationary employees

You are entitled to require a newly hired employee to serve a period of probation before confirmation of his or her appointment. But can you dismiss an employee at the end of his or her probationary period?

Probationary employees

You are entitled to require a newly hired employee to serve a period of probation before confirmation of his or her appointment. But can you dismiss an employee at the end of his or her probationary period?

These are the guidelines to follow when employing someone on probation and considering whether or not to dismiss him or her at the end of the probationary period:

· The period of probation must be reasonable with reference to the nature of the job, and the time that it takes to determine the employee’s suitability for employment, and must be determined in advance.

· During probation the employee’s performance should be assessed and, if s/he fails to meet the required standards, s/he must be informed of his or her shortcomings.

· To improve performance s/he should be afforded all reasonable assistance, guidance and training.

· At the end of the period you may dismiss an employee or extend the probationary period, but only after you afford the employee an opportunity to make representations. A union representative or fellow employee may assist an employee in these circumstances.

· You have a considerable degree of latitude in assessing a probationary employee’s suitability for permanent employment as long as you have fairly evaluated his or her performance and done your best to assist, guide and train the prospective employee but found him or her to be unsuitable. Of course, your assessment must have been a genuine one that was made in good faith and founded on ‘objectively ascertainable criteria that go beyond irrational or arbitrary whims, likes or dislikes of the particular employer …’