Holidays: Employers must ‘negotiate shift contracts’

2008-02-27 00:00

As this year’s “busiest” public holiday period (March and April/May) approaches, businesses operating on a continuous basis need to carefully negotiate shift agreements with trade unions, especially if the public holiday should fall on a Sunday.

According to Verlie Oosthuizen of Shepstone & Wylie’s Employment Law Department, the Public Holidays Act makes provision for 12 public holidays in a calendar year.

It also stated that whenever a public holiday falls on a Sunday, the following Monday shall be a public holiday.

The issue was tested in the Labour Appeal Court in 2006 in the matter of Randfontein Estates Ltd v The National Union of Mineworkers.

This employer had entered into a “continuous operation agreement” with the employees, in terms of which production work would take place seven days a week on all days of the year excluding public holidays, with Sundays regarded as normal working days, but public holidays not.

When Workers’ Day (May 1) fell on a Sunday in 2005 the Union contended that those employees who were shifted to work on that Sunday were entitled to a paid day’s leave as it was a public holiday. They also argued that employees were entitled to a day’s paid leave on Monday.

The employer believed that the employees were obliged to work on the Sunday, but were entitled to a day’s paid leave for the Monday. The court found that public holidays falling on a Sunday do not cease to be public holidays, “all that happens is that the Monday following becomes an additional public holiday.”

Having been approached by the employer, the Labour Appeal Court pointed out that the Act does not explicitly state that when a public holiday falls on a Sunday, that both the Sunday and the following Monday shall be public holidays.

The court decided in favour of the union, and warned employers that when they conclude collective agreements of this nature with employees they must ensure that they specifically agree on the way that public holidays will be dealt with.

If they simply rely on the provisions of the Act, as this employer did, they may be faced with the unexpected and expensive result of additional public holidays.

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