Regulations stipulate that most workers can’t be made to work more than an average of 48 hours a week, but they can agree to work longer. An agreement that must be in writing and signed by the employee.

The law specifies normal number of working hours varied by industries. If an employee works in excess of normal hours per week as specified, the additional hours are treated as overtime.

As we delve into understanding the issue of overtime, let’s get some work terminologies right:

Week – A continuous period of 7 days starting from Monday and ending on Sunday.

Hours of work – The period during which employees are expected to carry out the duties assigned by their employers. It does not include any intervals allowed for rest, tea breaks and meals.

Break times– You are generally not required to work more than 6 consecutive hours without a break. However, if the nature of the work requires continuous work for up to 8 hours, breaks must be provided for meals. The breaks should be at least 45 minutes long.

Normal hours of work– Contractual working hours are the hours that that you and your employer have agreed to in the contract of service.

In Kenya, we have an Employment Act that covers workers. If you are covered under Part IV of the Employment Act, your hours of work, 45 hours per week, are regulated and you are entitled to breaks, overtime pay and rest days. But Part IV of the Employment Act does not cover managers and executives.

With regards to working overtime, here are some frequently asked questions

Should I be paid for Overtime­?

There’s no legal right to pay for working extra hours and there are no minimum statutory levels of overtime pay, although your average pay rate must not fall below the National Minimum Wage.

If paid, your contract of employment should include details of overtime pay rates and how they’re worked out. Overtime rates vary from employer to employer, some will pay extra for working weekends or Holidays, others won’t.

But the general rates are one or one-half time hourly rate on weekdays, and at the rate of twice the basic hourly rate on Sundays and public holidays. There are different Regulations of Wages Orders in force, covering different sectors of the economy.

When does overtime apply?

It can include work done:

  • beyond their ordinary hours of work
  • outside the agreed number of hours
  • Outside the spread of ordinary hours.

The spread of hours is the times of the day ordinary hours can be worked (eg. between 7am – 7pm).

Overtime isn’t usually taken into account when working out holiday pay or paid maternity, paternity or adoption leave. However, it is taken into account when the overtime is guaranteed and you have to work the overtime as part of your contract of employment.

How is overtime is managed?

Check your contract of employment for details of how overtime is worked out and what the rates of pay should be.

Remember that your employer must, as a requirement by law, give you written terms and conditions within two months of starting work.

If anything isn’t clear, take it up with the employer. You might find it helpful to ask an employee representative, like a trade union official, to help out.

You should also look at the papers you were given when you started work, such as the written statement of terms and an employee’s handbook if one was provided.

Can I be forced to do overtime?

forcing an employee to work overtime may be termed as contravening on the minimum conditions of employment as set by the Regulation of Wages and Condition of Employment Act (Cap 229) of the Laws of Kenya which is taken as a criminal offence . Generally however, employers have the right to schedule overtime for their employees.

Therefore employees can be asked to work a reasonable amount of overtime to complete a job. However, union contracts often restrict the authority of employers regarding overtime. Also in some professions such as nursing an employee may be required to work overtime to save life.

Is working overtime mandatory?

Yes. Most businesses may make overtime mandatory even if you do not want to do so, and even on a day that is normally a scheduled day off. Your contract of employment should include the conditions for working overtime. You only have to work overtime if your contract says so.

Even if it does you can’t usually be forced to work more than an average of 48 hours per week. If you’re told to work more than this and you don’t want to, you should first take it up with your employer

Can I get time off instead of pay for working overtime?

Instead of paying for overtime, some employers offer ‘time off in lieu’. This is agreed between you and your employer and any time you take off will normally be at a time that suits the employer.

Some companies have rules on when time off can be taken, but others arrange time off on a case by case basis.

Are there limits to working overtime?

Unless your contract guarantees you overtime, your employer can stop you.  The employer must not discriminate against you, or bully you, by letting others work overtime while denying you the opportunity.

Your contract of employment should say what your normal working hours and days are and this may include or exclude working on Sundays. Whether this counts as overtime working depends on your contract of employment.

What is the maximum hours of work?

As an employee, you are not allowed to work more than 12 hours a day.

However, your employer can ask you to work more than 12 hours a day in the following circumstances:

  • An accident or threat of accident.
  • Work that is essential to the life of the community, national defense or security.
  • Urgent work to be done to machinery or plant.
  • An interruption of work that was impossible to foresee.

If an employer requires employees to work more than 12 hours a day (up to a maximum of 14 hours), they must apply for an overtime exemption.

Work on rest days or public holidays is not counted in the 72-hour overtime limit, except for work done beyond the usual daily working hours on those days. Such extra hours are included in the 72-hour limit.

Overtime on a rest day or public holiday is calculated as follows:

  • (Hourly basic rate of pay x 1.5 x Number of hours worked overtime) + (Rest day or public holiday pay)

A person employed for night work may not work for more than 60 hours a week.

Persons under the age of 16 years may not work for more than six hours a day (or 36 hours a week). Collective agreements may modify the working hours, but generally provide for weekly working hours of 40 up to 52 hours per week

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