The Employment Act outlines the minimum rights every employee is entitled to. This is to say, an employer can choose to provide more than what the Act prescribes and that would be amazing. The only problem comes with providing less than what is set as the minimum.
The Act does one better by singling out some industries which may require specialised laws, meaning the standard laws are tweaked to suit their operations and this can be found under the Regulations of Wages.
The general misconception is that the difference in the operations grants employers in such industries free will to do as they please in order to meet demands. Unfortunately, that is not the case and the law is supreme. Failing to adhere would have dire consequences.
The focus of this article is to establish whether the retail sector employers are permitted to deny their employees rest periods so as to meet the demands. In simpler terms, can the employer get away with placing employees on continuous long hours of work without rest? Let us explain.ย
The law
According to section 93(1) of the Employment Act โEvery employee shall be granted by the employer in every period of seven consecutive days a rest period comprising at least 24 consecutive hours, which period shall ordinarily be or include a Sunday: Provided that, where the employee is engaged on shift work, he shall be granted a rest period comprising any period of 30 consecutive hours.โ
Section 93(3) of the same Act goes on to state that โWhere the rest periods of an employee are or include days other than a Sunday, the employer shall prepare or cause to be prepared a roster in respect of every month specifying the employee’s rest periods within that month and shall display the roster in a conspicuous place readily accessible to the employee not less than seven days immediately before the commencement of the month in question.โ
It is evident from the sections above, every employee is entitled to a rest period every week, unless otherwise permitted by the Commissioner (section 93(2)). Moving closer to home, paragraph 5 of the Regulation of Wages (Wholesale and Retail Distributive Trades) Order of the Employment Act reads โAn employee shall earn a rest period at the rate of not less than 24 consecutive hours in the course of each week at the employerโs discretion to determine when this period shall be takenโ. Since the Regulations also confirm the rest periods, where do the misconceptions emanate from? Read on!
The misconception
As already alluded to above, everything stems from the fact that the retail sector has high demands therefore, employers are allowed to manipulate things. By things, I mean overtime. Employees are placed on endless overtime to meet these demands. The overtime would lead to no rest periods, usually directed at managers/supervisors. Furthermore, assuming that since overtime is highlighted on employment contracts then the employer is permitted to take away rest periods and replace it with overtime pay/allowance.ย ย
The correct stance
According to section 37 of the above Act โWhere a contract of employment, whether made before or after the commencement of this Act, provides for conditions of employment less favourable to the employee than the conditions of employment prescribed by this Act, the contract shall be null and void to the extent that it so provides.โย ย Any term that goes against the Act will not be enforceable and this applies to matters of rest periods. To help unblur the lines, engage your HR department or better yet an HR consultant to put things into perspective, so that you avoid unnecessary costs due to employment law violations. Contact us on the details below to consult.ย ย ย
Contacts
If you want to join our free HR WhatsApp group or to consult, contact us on +267 75 54 67 84, +267 393 9435 or info@aupracontax.co.bw.ย ย ย ย
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