LABOUR LAW – COMPLIANCE ORDERS – COMPETENCY THEREOF WHEN COLLECTIVE AGREEMENT REGULATES DISPUTE RESOLUTION BETWEEN THE PARTIES 

LABOUR LAW – COMPLIANCE ORDERS – COMPETENCY THEREOF WHEN COLLECTIVE AGREEMENT REGULATES DISPUTE RESOLUTION BETWEEN THE PARTIES 

Reasons for Ex Tempore judgment delivered on 21 October 2022

This was an unopposed appeal against a compliance order granted in terms of section 126(1) of the Labour Act, 11 of 2007 by the first respondent, the Labour Inspector, against the appellant to the effect that the appellant must pay 0.5 of an hourly rate overtime to all employees working from Monday to Friday, for any work performed on a Saturday, for which they did not receive 1.5 of their basic wage for each hour worked on such Saturday.

The appellant, a road construction company was undertaking rehabilitation and construction of the road between Keetmanshoop and Mariental. The construction site was situated in remote areas, making it impractical for employees to travel to and from work on a daily basis, thus it was a requirement of the occupation that employees work and stay on-site from Monday to Friday. Employees travelled to their place of residence later Friday, or Saturday afternoon and returned to site on Sunday evenings. As per the collective agreement, normal working hours were from 07h30 to 12h00 and 13h00 to 17h30, with a lunch interval of one hour from 12h00 to 13h00, every Monday to Friday. There was an exception to this working schedule of nine hours per day and five days per week.

It was agreed on the request of employees and after consultation that employees would work nine ordinary hours for two (2) Saturdays every month at a normal wage rate, in exchange for which the employees would receive both the Friday and Monday off during a pay week.

The first respondent conducted a site visit and concluded that the employees were required to work 6 days per week, and thereby exceed the 45 ordinary hours per week limit, and he issued the compliance order which was the bone of contention in this application.

CHRISTIAAN AJ considered the appeal and held that:

1. The order issued by the first respondent would mean that all employees who did not receive 0.5 percent of their salary for work done on a Saturday, were to receive back pay. This would mean that employees would receive wages that they did not work for.
2. The first respondent misinterpreted the provisions of section 16 (1)(a) of the Act and provisions of the agreement relating to maximum number of hours of work and the compliance order stands to be set aside on this ground.
3. The appellant and the second respondent concluded a Recognition and Procedural Agreement to regulate any disputes which might arise between them.
4. The first Respondent assumed jurisdiction over issues which are regulated through a contract between the appellant, the second respondent, and its employees under a collective agreement.

As a result, the appellant’s application succeeded.

China Henan Int Cooperation Group (Pty) Ltd v Tjipepa (HC-MD-LAB-APP-ACO-2022-00046) [2022] NALCMD 63 (21 October 2022)