#BTColumn – Can I be forced by my employer to work overtime without pay?

Now that the Xmas season is here the owner of the store where I work has changed its opening hours and now insists that we work from 9am to 7pm during the week and from 9 am to 5pm on Saturdays. We were told that the business is now recovering given COVID 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). However, the business is guided by the Shop Act 2015-30 and there are certain rules regulations that must be followed.

First let us define who would be considered a shop assistant (as it appears this is your role) and what a shop is. 

Under the Shop Act 2015-30 (“the Act”) any person who is employed in a place which sells or hire articles or in connection with the trade or business of a shop, including clerical or other office work, falls under the definition of 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 7.00 a.m. on Mondays continuously (without closing) until 10.00 p.m. on Sundays except on “closed days”. Closed days are Good Friday, Easter Sunday, Independence Day and Christmas Day. Additionally, businesses which intend to remain open between 11:00 p.m. and 7:00 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 4 ½ hours of work is 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 meal times. This means that as a shop assistant, you should not work for more than 8 hours a day exclusive of your mealtime on any given work day. Further you are not required to work more than 5 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. That is, while your co-operation is expected, it is not compulsory for you to work extended shifts.

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 $50,000.00 or to imprisonment for 3 years or to both. 

About Lifeline Labour Solutions: Lifeline Labour Solutions is a boutique partnership providing people 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, Labour Relations and Human Resource Management between them. Email: info@ lifelinelabour.