by Mar 8, 2023Employment

Overtime is regulated by section 10 of the Basic Conditions of Employment Act (“BCEA”) which provides that overtime is voluntary and an employer may not require or permit an employee to work overtime except in accordance with an agreement.

In the recent judgment of AMCU obo Mkhonto & Others v Andru Mining (Pty) Ltd & others, the Labour Court considered a review application to set aside an arbitration award in terms of which the applicant employees’ dismissal for a refusal to obey an instruction to work overtime was found to be substantively fair.

The applicants were charged and dismissed for gross insubordination after they refused an instruction from their site manager to work overtime in order to meet production targets.

At the arbitration, the primary issue in dispute was whether the applicants had agreed to work overtime. Andru Mining had to prove that the employees had agreed to work overtime in order to validate the instruction. It contended that the applicants were bound by their contracts of employment which included an overtime clause. On the other hand, AMCU argued that the applicants were not guilty of gross insubordination as the instruction to work overtime was unlawful.

Relying on the provisions of section 10(5) of the BCEA, the Labour Court found that the overtime clause in the applicants’ contracts of employment had lapsed. Section 10(5) of the BCEA provides as follows:

“An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.” (our emphasis)

There was no agreement to work overtime, other than in the case of one employee who had agreed in his contract of employment to work overtime and he was employed for less than a year at the time when the instruction was issued.

Consequently, the Labour Court found that the applicants’ dismissals were substantively unfair and awarded retrospective reinstatement.

Employers are cautioned to ensure that agreements to work overtime are annually concluded or renewed with employees. Employees cannot be held to overtime provisions in their contracts of employment which have been in place for longer than 12 months.

Should you require any more information, please contact Melanie Hart at