The Employment Act, the Labour Institutions Act 2007 and Wage Regulations constitute minimum statutory standards. An Employer cannot offer, and an Employee cannot legally accept, and be bound by an offer, of terms and conditions of service, below the statutory minimum standards.
Section 26 of the Employment Act provides that where the terms and conditions of a contract of service are regulated by any regulations, as agreed in any collective agreement or contract between the parties or enacted by any other written law, decreed by any judgment award or order of the Industrial Court are more favourable to an employee than the terms provided in Part V and Part VI of the Act, then such favourable terms and conditions of service shall apply.
- Working hours
Section 27 of the Employment Act provides that an employer shall regulate the working hours of each employee in accordance with the provisions of the Act and any other written law. Notwithstanding the foregoing an employee shall be entitled to at least one rest day in every period of seven days.
The Employment Act does not specifically set out a maximum limit on working hours. Limits on working hours are instead regulated on an industry-by-industry basis (i.e. general workers, agricultural etc.), and are set out in the various regulation of wages orders (the Wage Orders). A number of wages orders have been gazetted that regulate different working hour requirements for different industries. Flexible arrangements on working hours are possible provided the maximum number of hours is not surpassed.
Order 5 (1) (2) of the Regulation of Wages (General) Order (the General Order), which regulates general workers (who are a majority of the workforce), provides that the normal working hours should not be more than 52 hours spread over six days a week, and not more than 60 hours of work per week for a person employed on night work.
Order 5 (3) of the General Order further provides that no person under the age of 16 years is required to work for more than six hours in any day. Additionally, persons under the age of 18 years can only work as interns for training purposes. Where an employee works for more than the maximum number of hours, payment of overtime is required to be made.
Order 7 of the General Order provides that every employee shall be entitled to one whole rest day in each week. An employer and his employee may, by mutual consent, agree to the deferment of the employee’s rest day and the rest day so deferred may be taken by the employee on a subsequent day or may, subject to a maximum accumulation of fourteen such rest days at any one time, be accumulated and taken, as leave with full pay in addition to the employee’s entitlement to annual leave with full pay.
The weekly rest day of a person under the age of sixteen years shall not be so deferred.
There are no specific working hours or other terms specifically required for part-time workers. Other than their hours of work, all other rights and obligations of the employee that apply to full-time contracts apply to them.
Overtime is regulated in the same way that the maximum number of hours is regulated: on an industry-by-industry basis. Order 5 (1) (2) of the General Order limits normal working hours to 52 hours per week for day workers and 60 hours a week for night workers, meaning that any time worked beyond these limits will amount to overtime. There is, however, a limit to overtime. Overtime worked, together with the normal working hours per week, should not exceed 144 hours for employees engaged in night work. Overtime for all other adult employees in any period of two consecutive weeks should not exceed 116 hours.
Order 6 (1) (a) (b) of the General Order provides that overtime is payable at the following rates: for time worked in excess of the normal number of hours per week, 1.5 times the normal hourly rate, and for time worked on the employee’s normal rest day or public holiday, twice the normal hourly rate.
The Order provides that in calculating payments for overtime, the basic hourly rate shall, where the employees are not employed by the hour, be deemed to be not less than 1/225 of the employee’s basic minimum monthly wage.
- Keeping records
Section 48(1) as read with section 53(1) of the Labour Institutions Act require employers to keep records for 3 years after the date of last entry thereof with respect to minimum rates of remuneration or conditions of employment established in a wages order.
Section 48(1)(b) of the Labour Institutions Act states where a contract of employment provides for less remuneration than the statutory minimum remuneration, remuneration and conditions of employment established by the Wages Order shall be inserted in the contract, in substitution of those terms.
Order 10 provides for Acting allowance where an employee is required to work for a period of not less than one month in an occupation or grade for which the basic minimum wage prescribed under paragraph 3 is higher than the basic wage normally earned by the employee. The employee shall be paid an acting allowance at a rate not less than the difference between that higher basic minimum wage and his basic wage.
Order 14 provides for Safari allowance for an employee who is required to work away from his principal area of employment. The subsistence and accommodation allowance payable shall cease to be payable to an employee after thirty consecutive days’ absence on duty from his principal area of employment and thereafter the employee shall be treated as permanently transferred.