Dear HR – What are the rules for overtime and reduced days?

Question: Now that the Xmas season has started, the owner of the store where I work has changed its opening hours and now insists that we work from 9 a.m. to 7 p.m. during the week and from 9 a.m. to 5 p.m. on Saturdays.

We were told that the business is now recovering given COVID-19 times, therefore the extra hours will not be paid as overtime.
Can they do this? Can we refuse to work the extra hours? A business owner can change the opening hours of the business and can change your work hours with your consent. Overtime is due to you if you are required (rostered) to work more than 40 hours per week (excluding meal breaks).

First, let us define who would be considered a shop assistant and what a shop is.

Under the Shop Act 2015-30 (“the Act”) any person who is employed in a place that sells or allows the hire of articles or in connection with the trade or business of a shop, including clerical or other office work, falls under the definition of a shop assistant. Family members of the occupier of the business are not considered shop assistants.

The occupier is the owner of the business carried on in the shop and includes any person having immediate control over the shop at the time.

A shop is any premise or place where a person conducts, manages or carries on any retail or wholesale trade or business or conducts business by performing services for sale or hire of goods.
For example, a shop would be a clothing store, hardware, supermarket, etc.

All shops are allowed to open from 7 a.m. on Mondays continuously (without closing) until 10 p.m. on Sundays except on “closed days”. Closed days are Good Friday, Easter Sunday, Independence Day and Christmas Day.
Additionally, businesses that intend to remain open between 11 p.m. and 7 a.m. are required to obtain a certificate from the Chief Labour Officer.

Under the Act, the shop assistant is entitled to a one-hour meal break after four-and-a-half hours of work are completed. However, these meal breaks can be decided after consultation with the employee and taking operational demands into consideration.

A shop assistant’s working hours should not exceed 40 hours in a seven-day week exclusive of mealtimes. This means that as a shop assistant, you should not work for more than eight hours a day exclusive of your mealtime on any given workday. Further, you are not required to work more than five days per week. Work done by the shop assistant on a public holiday or a day off entitles him/her to be paid twice as much as his/ her ordinary rate, i.e., double time.

In this scenario, you will be working 52 hours in any given week. Any hours more than 40 will be considered overtime and must be paid at time and a half pay. If your employer wishes you to work overtime, this must be with your consent. Note that your consent is also required to work on the day you observe as the day of religious worship. This is where the employer and employee must be able to work together for the good of the business and where having good employee engagement becomes important.

If your employer dismisses or otherwise penalises you as a shop assistant for refusing to work overtime, he/she is guilty of an offence under the Act and he/she will be required to prove that your termination or penalty was unrelated to your refusal to work overtime. If they are unable to satisfy this requirement, he/she will be liable, on summary conviction, to a fine of $50, 000 or to imprisonment for three years or both.

Question: Due to the pandemic, my salary was cut, and I was still working the five days as opposed to the four days which my cut salary would be equal to. When I brought it to management’s attention about working the five days, I was told that I came to work at my own discretion and I would neither be compensated for the days which I worked nor given back the days. Is this right and can I get back my days or be compensated? During the pandemic, many businesses instituted across the board cuts to the salaries they paid, mostly with consent from employees as required. What is important to note, though, is that, in the case of salary cuts, while the payment the salaried employee receives for the work he/ she does is reduced, the number of days he/she is expected to work are not. Perhaps the best-known local example of a salary cut is that experienced by the public servants in the early 1990s.

Let us also make clear the distinction between a salary and a wage. A salary is a regular payment which, though paid monthly, is often expressed as an annual amount. For example, a person who earns $60, 000 per annum (year), when paid monthly, receives $5, 000. A person whose contract states that he/she will receive $3, 000 per month earns $36, 000 per annum.

A wage, on the other hand, is typically paid on a daily or weekly basis and represents payment for the number of hours worked during the period. A regular work week locally is 40 hours. A person who receives a wage of $340 per week is being paid $68 per day for eight hours’ work or $8.50 per hour for 40 hours’ work.

With the information which has been provided, and not knowing how the initiative was rolled out at your workplace, we cannot comment more definitively on what was said in your specific instance, except to say that your attendance at work is at your own discretion only if you can determine your own hours and times of work. If you are attending work as rostered or as required by your contract of employment, then you are not attending work at your own discretion.

As a salaried employee, you would not be entitled to compensation for the days which you worked (as this would defeat the reason the cuts were instituted in the first place) and you would not be entitled to days back.

About Lifeline Labour Solutions Lifeline Labour Solutions is a boutique partnership providing labour management solutions to workplace challenges.
Partners Carol-ann Jordan and Jacqueline Belgrave are established practitioners with a wealth of knowledge and experience in Employment Relations and Human Resource Management.