OVERTIME REGULATIONS

SUBSIDIARY LEGISLATION 452.110

OVERTIME REGULATIONS

31st January, 2012

LEGAL NOTICE 46 of 2012, as amended by Legal Notices 109 of 2012

and 81 of 2015.

(1) The title of these regulations is the Overtime

Regulations.

(2)

These regulations shall be without prejudice to -

(a) any other law issued under the Act regulating part-

time employment, and

(b) the Organization of Working Time Regulations.

(1)

For the purpose of these regulations

"the Act" means the Employment and Industrial Relations Act;

"Director" shall have the same meaning assigned to it by the Act;

"overtime" shall have the same meaning assigned to it by the

Act.

(2) Terms and expressions used in these regulations, unless the

context otherwise requires, shall have the same meaning assigned

to them in the Act.

(1) Subject to regulation 9A of the Protection of Maternity

(Employment) Regulations, whole-time employees shall work any

overtime as required by their employer provided that the average

weekly working time, including overtime, does not exceed an

average of forty-eight hours over the applicable reference period in

terms of the Organization of Working Time Regulations.

(2) The provisions of sub-regulation (1) limiting the overtime

worked to a weekly average of forty-eight hours during the

applicable reference period shall not apply where the employee has

given his consent in writing to work more than a weekly average of

forty-eight hours.

An employee whose overtime rate is not covered by a

Wages Council Wage Regulation Order shall be paid one and a half

times the normal rate for work carried out in excess of a forty hour

week, averaged over a four week period or over the shift cycle at

the discretion of the employer

Provided that in a sector where there is no applicable

Wages Council Wage Regulation Order, this regulation shall not

affect any provision relating to overtime payment in an applicable

c o l l e c t i v e a g r e e m e n t c o v e r i n g s u c h a s e c t o r, w h e t h e r t h i s

agreement was entered into prior to, or after, the entry into force of

these regulations * .

*refers to the regulations promulgated, and in force, on 17th March 2015, by means of

Legal Notice 81 of 2015.

(1) In all sectors, whether these sectors are covered by a

Wages Council Wage Regulation Order or not, the employer may

introduce schemes to bank hours, whereby up to three hundred and

seventy-six hours of the normal annual working hours in each

calendar year may be banked, thus allowing extra hours over and

above the normal weekly working hours to be worked during

periods of higher work activity which would be redeemed during

periods of lower activity by having working hours below the

normal weekly working hours

Provided that the average weekly working time, including

overtime, shall not exceed an average of forty-eight hours over the

applicable reference period in terms of the Organization of

Working Time Regulations, unless the employee concerned has

given his consent in writing to work more than a weekly average of

forty-eight hours.

(2) The hours of work which may be banked shall be limited to

those hours on any day in a week which attract the normal hourly

rate of payment. Similarly, any hours of work which have been

banked in order to be utilized during weeks of lower work activity

shall only be so utilized on a weekly day of work where the hours

of work are paid at a normal rate.

(3) Subject to the specific provisions in sub-regulations (4) and

(5)(e), (f) and (g), any banked hours shall be considered not to

attract any remuneration above the normal daily or weekly rate as

the case may be, and clauses in any applicable Order or regulation

under the Act which specify particular rates of remuneration for

hours of work in excess of a specified daily or weekly amount of

hours shall not apply in these circumstances.

(4) Any hours worked on any day which attracts a special rate

of pay in terms of any law, regulation, order, collective agreement

or individual contract shall be excluded from any banking system

and shall be paid for in accordance with normal practice unless the

parties agree otherwise, in which case, the number of hours to be

banked shall be calculated on and shall reflect the special hourly

rate of pay.

(5) Any scheme of banking of hours shall comply with the

following

(a) the employee is given prior written notice of the

number of hours and roster to be worked in the

following four weeks under the banking of hours

scheme;

(b) the employer shall have the possibility of making an

alteration of the number of weekly hours and, or of the

roster to be worked in a particular week as long as

written notice of such a relative change is given at

least forty-eight hours before such a change comes

into effect;

(c) the weekly basic wage

shall

remain

constant

throughout the year;

(d) part-time and whole-time employees with reduced

hours shall not be obliged to participate in a scheme to

bank hours and shall not suffer any detriment by the

employer for failing to agree to participate in such a

scheme;

(e) in cases where the contract of employment is

terminated for whatever reason;

(i)

before the banked hours could be redeemed,

such outstanding banked hours are to be paid at

the applicable overtime rate in force on the date

of termination, by the date of the next pay day;

provided that in the case of participating part-

time employees or whole-time employees with

reduced hours, any banked hours shall only be

paid at the applicable overtime rate if the total

hours worked by such employees when averaged

exceed the normal hours of work of a

comparable whole-time employee; and

(ii) where lesser hours than the yearly average have

been worked, the employer shall not be entitled

to claim a refund in respect of hours not actually

worked;

(f)

the employee may be required to work in excess of the

scheduled hours of work on a particular day as referred

to in paragraph (a) or (b) but in such a case, such extra

hours are to be paid at overtime rates at the applicable

overtime rates;

(g) if at the end of a calendar year there are outstanding

banked hours which have not been redeemed, such

hours are to be paid at the applicable overtime rate

unless the employer and employee have agreed in

writing to transfer up to one hundred and sixty banked

hours to the next calendar year. Such banked hours

carried forward from the previous year shall be utilised

first and shall not be carried forward again

Provided that if at the end of a calendar year it results

that the employee has worked lesser hours than what

he should have worked in terms of the applicable

scheme of banking of hours, those hours shall be

transferred to be worked during the next calendar year;

and

(h) the Director has authorised the introduction of the

banking hours scheme and in so doing may impose any

conditions deemed necessary.

(6) Any scheme to be introduced by an employer shall be

without prejudice to the provisions of any applicable collective

agreement in force at the workplace unless the parties to such an

agreement otherwise agree.

(7) When a scheme has been duly authorized, any provision in

any Wage Council Wage Regulation Order specifying rates of pay

for particular work, shall, in the case of any conflict with the

provisions of these regulations, not apply and the provisions herein

shall prevail.

With respect to calculation of hours to be deducted from

the annual leave or sick leave entitlement when these are availed of

by an employee, the hours of work to be deducted from such annual

e n t i t l e m e n t sh a l l b e t h e n u m b e r o f h o u r s w h i c h h a v e b e e n

scheduled to be worked by the employer in accordance with the

schedule issued by the employer in terms of regulation 5.

(1) When an employee participating in a scheme for

banking of hours takes maternity leave or other paid leave not

referred to in regulation 6, that employee shall receive the normal

wages which may be due in respect of the maternity leave or other

leave, as the case may be, and the provision of regulation 5(5)(c)

shall continue to apply. During such leave, such an employee shall

be considered to have worked the same number of hours scheduled

to be worked by virtue of such a scheme, whether these are above

or below the normal hours usually worked outside the scheme, and

such banked hours shall be considered to have been credited or

debited, as the case may be, and be considered for all intents and

purposes, in the same way as would apply to similar hours credited

or debited by other employees participating in such a scheme.

(2) When an employee participating in a scheme for banking of

hours is on unpaid leave, he shall be considered to have worked the

same number of hours scheduled to be worked by virtue of such a

scheme, whether these are above or below the normal hours usually

worked outside the scheme, and such banked hours shall be

considered to have been credited or debited, as the case may be,

and be considered for all intents and purposes in the same way as

would apply to similar hours credited or debited by other

employees participating in such a scheme.