Conditions of Employment

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Night Work

By André Claassen

 

Basic Conditions of Employment Act

Section 17: Night work

 

(1.) In this section, “night work” means work performed after 18:00 and before 06:00 the next day.

 

(2.) An employer may only require or permit an employee to perform night work, if so agreed, and if—

 

(a.)  the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and

(b.)  transportation is available between the employee’s place of residence and the workplace at the commencement and conclusion of the employee’s shift.

 

(3.) An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must—

 

(a.) inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands—

 

(i) of any health and safety hazards associated with the work that the employee is required to perform; and

(ii) of the employee’s right to undergo a medical examination in terms of paragraph

 

(b.) at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards—

 

(i)  before the employee starts, or within a reasonable period of the employee starting, such work; and

(ii) at appropriate intervals while the employee continues to perform such work; and

 

(c.) transfer the employee to suitable day work within a reasonable time if—

 

(i) the employee suffers from a health condition associated with the performance of night work; and

(ii) it is practicable for the employer to do so.

 

(4.) For the purposes of subsection (3), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year.

 

(5.) The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations for employees who perform night work.  [Section 90 protects the confidentiality of any medical examination conducted in terms of this Act]

 

Commentary

 

It must be noted that in the first instance (paragraph (2) above, night work may only be performed by agreement.

 

Secondly, the employee must be compensated by the payment of an allowance, or a shift allowance, or if no allowances paid, a reduction of working hours must be instituted.

 

What this means is that, if no shift allowance is paid, then the working hours must be reduced - say from 9 hours to 7 hours, but the employee must be paid for 9 hours.

 

The act does not say how much the shift allowance must be, nor does it say by what method or formula it must be calculated, presumably then, that is left for the employer and the employee to negotiate.

 

Thirdly, overtime may only be worked if transport is available to transport the employee from his place of residence, to the workplace at the beginning of the shift, and from the workplace back to his residence at the end of the shift.

 

This can be public transport, taxi, bus, train, a lift club,  a lift with another employee, his wife or family member transport him, or whatever. If no such transport is available, then the employer will have to make arrangements for it - such arrangements could include paying the employee a transport allowance if the employee is agreeable to that.

 

The act seeks also to take care of the health of the employees working night shift.

 

It states that employees must be informed in writing, of any health or safety hazards associated with the work to be done, and that if necessary the employee has the right to undergo a medical examination, at the employer's expense, in order to determine his fitness or otherwise to carry out the required work in terms of the hazards existing.

 

Further, if the employee suffers any health hazards as a result of working night shift, the employer must transfer him to suitable day shift work if possible.

 

For more information please contact

 

 

 

 

 

 

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