Employees must be paid for their availability if they may be required to work any additional hours...

A recent Employment Court case considered whether an employer could require its employees to be available for work, over and above their usual hours of work.  The answer was, “Yes”, but only if the employees are paid to make themselves available. 

In this case the employee’s contract specified the employee’s usual hours of work, and also stated that employee may be required to work reasonable overtime.  The clause did not mention that employee would be paid for the additional hours. 

The Employment Relations Act makes it clear that employees may refuse any additional hours of work, without being treated adversely, if their contract does not contain a valid availability clause.  A valid availability clause must specify (amongst other things) how the employee will be paid for being available. 

One of the arguments that the employer made was that the employee’s salary already incorporated reasonable compensation for availability.

The Court disagreed, and said that the contract did not provide reasonable compensation for availability, merely because the employee was already being paid a salary.  Employees are therefore able to refuse additional hours of work.

Employers would be wise to ensure that if they require employees to be available, over and above their usual hours of work, the employment contact in place complies with the law. 

Employees who are required by their employers to work extra hours should check that there is a valid availability clause in their contract, or they may refuse to work extra hours, without being treated adversely. 

Jaenine Badenhorst

Employment Lawyer