Municipality of Windhoek v Van Wyk and Others (LCA 6 of 1998) [1999] NAHC 12 (17 September 1999);
CASE
NO. LCA 6/98
MUNICIPALITY
OF WINDHOEK -vs- WALTER JOHN VAN WYK AND OTHERS.
1999/09/17
Teek: President
Appeal:
-
From District
Labour Court.
On
agreed and stated facts issue:
-
considered and discussed whether or not standby duty constitutes
work as
contemplated
by the Labour Act. Held:
-
The devised platoon system does not mean that the non-active
standby duty
performed
by the respondents and other firemen becomes work "on the
instructions
of the employee".
- The
requirements to perform on standby duty is part and parcel of the
conditions of service to which the respondents agreed, even if duty
rosters are determined by the appellant pursuant to those conditions
of service. It does not define the nature of that duty and certainly
does not elevate it to the performance of work.
Held:
-
Complainant should have failed.
- Appeal
upheld.
CASE
NO. LCA 6/98 IN
THE LABOUR COURT OF NAMIBIA
In
the matter between:
MUNICIPALITY
OF WINDHOEK APPELLANT
versus
WALTER
JOHN VAN WYK & OTHERS RESPONDENT
CORAM:
TEEK,
PRESIDENT
Heard
on: 1999.02.15
Delivered
on: 1999.09.17
JUDGMENT:
TEEK,
PRESIDENT:
The
appellant has appealed against the whole of the judgment handed down
on 29 April 1998 in the District Labour Court for the district of
Windhoek by the learned Mr L Simasiku.
The
judgment is assailed by the appellant on various grounds namely that:
1.
Important aspects of evidence before the court are not
reflected in the judgment or are not accorded sufficient weight;
2.
the
court over emphasized some aspects of the evidence in disregard of
important aspects to the prejudice of the Applicant;
more
in particular, the Honourable Court misdirected itself by
considering only one aspect of the application viz, "whether
the Respondent's are on duty on the instructions of the employer or
a self claimed or imposed instruction;"
misdirected
itself in failing to consider pertinently whether the non-active
standÂby duty of the Respondent's constitute work for the
purposes of qualifying for overtime remuneration in terms of the
Labour Act;
the
Court further misdirected itself in giving little and/or no
consideration to the fact that Complainants were paid in full in
respect of active periods for work actually performed and that;
stand-by
allowance is granted in respect of non active stand-by duties;
the
Court gave insufficient and/or no consideration to the existence of
a contract of employment between the parties and the consequence
which flows from such relationship; and
the
Appellant reserved the right to add or to rectify the grounds of
appeal once the record of the hearing of the Complain has been
transmitted to the Registrar of the Labour Court in accordance with
Rule 19(3).
The
respondents in turn cross appealed against part of the order on the
following points of law:
The
learned Chairperson erred in not ordering Appellant to discontinue
contravening section 32(3) of the Labour Act, Act No. 6 of 1992;
The
learned Chairperson erred in not ordering Appellant to remunerate
Respondents, with effect from 1 February 1996, in respect of all
hours worked on a Sunday or on a public holiday at the rate of not
less than double their hourly rate of remuneration: provided that
Appellant may deduct any amounts already paid to Respondents in
respect of all outs;
The
learned Chairperson erred in not ordering Appellant to remunerate
Respondents, with effect from 1 February 1996, in respect of all
hours worked between the hours of 20h00 to 07h00, calculated at the
rate of 6 per cent of the hourly rate of remuneration payable on a
weekday: provided the Appellant may deduct any amounts already paid
to Respondents in respect of all outs.
As
the parties agreed to a statement of agreed facts no evidence was led
at the hearing. This statement also contained the appellant's as well
as the respondent's contentions and the relief sought by the
respondents (complainants) and reads as follows:
AGREED
FACTS
Complainants
are employed as firemen by the Respondent. There are two fire
stations, one in Guthenberg Street, Windhoek and the other in
Sheffield Street, Northern Industrial area, Windhoek.
As
firemen Complainants are on duty for on average 84 of hours per
week. Complainant are divided into two platoons or groups.
During
week one, the platoon is on shift duty on Tuesday and Thursday of
24 hours each (two shifts) i.e. a total of 48 hours. During week
two, the platoon is on duty for five shifts of 24 hours duration
each on Monday, Wednesday, Friday, Saturday and Sunday (five
shifts). This is a total of 120 hours. During a fortnight therefore
a platoon is on duty for 168 hours, which is an average of 84 hours
per week.
A
copy of the duty sheet for firemen is attached marked "A".
The day shift is a 9 hour shift, from 07h30 until 16h30. The night
shift is a 15 hour shift from 16h30
until 07h30, the following day. The weekend shift is a three day
shift from 07h30 on Friday until 07h30 on Monday, each day being a
24 hour shift. On any weekday (i.e. from Monday to Friday)
Complainants are given a one hour meal interval from 13h00 until
14h00, during which period the Complainants are required to remain
at the fire station or at their residences at the fire station as
if on non-active duty (see the following paragraph).
The
shifts are further broken up into "active" and
"non-active" periods. The "active" periods are
as follows:
Weekdays
Weekdays
Saturdays
Saturdays
Sundays
and public holidays Sundays and public holidays
07h30-13h00;
14h00-18h00; 07h00-07h30 - this is at the end of a shift;
07h30-10h30;
16h30-17h30; 07h30-08h30; 16h30-17h30.
The
"non-active" periods are as follows:
Weekdays 13h00-14h00;
Weekdays 18hOO-07hOO;
Saturdays 07h00-07h30, 10h30-16h30
and
17h30-24h00;
Sundays
and public holidays 00h00-07h30, 08h30-16h30
and
17h30-07h00;
During
week one, a member of a platoon is on duty during the active hours
for 20 hours and during the non-active hours for 28 hours. During
week two, a member of a platoon is on duty during the active hours
for 36 hours and during the non-active hours for 92 hours.
Complainants
are paid by Respondent monthly and are required to work seven days
per week. Their remuneration is calculated with reference to the
active hours. Complainants each receive a standby allowance of
N$341,24 per month as recognition for the non-active hours.
During
the non-active periods:
Complainants
are on standby duty at the Respondent's fire stations in order to
be ready to go out on a call at very short notice;
Complainants
are required to remain on the premises of Respondent's fire
stations at all times;
Complainants
may engage in any activities on the Respondent's fire station
premises, except Complainants are not allowed to consume alcohol;
Complainants
may sleep or engage in leisure activities;
Save
for those required to perform control room duty Complainants are
not required to wear their uniforms until they go to bed at 23h00;
At
all times i.e. during non-active and active times; including when
Complainants go to bed, they are required to respond to a call and
be ready to leave the fire station on a fire engine or in an
ambulance within 60 seconds;
9.7
Some of the married Complainants live on the premises with their
families in flats, while all the others have their own rooms on the
premises. This latter category includes unmarried employees who live
in rooms on the premises and married employees who do not live on
the premises but have rooms allocated to them for non-active standby
duty.
Complainants
are remunerated in accordance with the Labour Act, Act No. 6 of
1992 ("the Labour Act"), for being called out during any
"non-active" period, from the time of leaving the fire
station until their return.
There
always has to be one fireman on duty at any time in the control
room. This is where incoming calls are answered and dealt with by
the person on duty. Complainants who work in the control room are
on duty from 16h30 until 07h30. There is a supper break from 17h30
until 18h30. Another fireman relieves him during this time. A
complainant who is on duty in the control room is not paid overtime
for this time, except on a Sunday or a public holiday, when the
normal hourly rate is paid for this period.
Complainants
on control room duty may sleep on a bed provided for this purpose
in the control room after 23h00. Complainants on control room duty
receive the night work allowance referred to in section 34(2) of
the Labour Act for the period 20h00 until 07h00.
13.
The approach generally adopted in South Africa is reflected in an
industrial council agreement between certain local authorities and
their employees' representatives and is to the following effect:
a
56 hour working week for firemen is regarded as fair and just;
where
local authorities are unable to implement a 56 hour week by way of
a 3 platoon system, the following alternatives are available with a
2 platoon system:
(i) an
84 hour week (2 platoon system) with a 24% shift allowance
to a
maximum of R412 per month;
(ii) a
72 hour week (2 platoon system) with a 16% shift allowance to
a
maximum of R344 per month.
The
2 platoon system involves similar active duty and non-active
standby duty along the lines applicable with the Respondent.
The
choice of implementation of a 56, 72 or 84 hour working week is for
a local authority council, depending upon its size and
requirements.
13.2
The Respondent has a 2 platoon system. The size of the Respondent
local authority does not justify a 3 platoon system.
13.3
The
Respondent is prepared to negotiate the size of the shift allowance
but the Complainants decline to do so, persisting with this
complaint.
COMPLAINANTS'
CONTENTIONS
Complainants
contend that they are on duty including "non-active"
periods and therefore working for the whole shift i.e. for
twenty-four hours.
Complainants
contend that Respondent's distinction between "active"
and "non-active" hours, and its consequent refusal to
remunerate Complainants for the "non-active" hours during
which they are on duty (unless out on a call) is contrary to the
Labour Act.
Complainants
contend that their working hours are not restricted to the times
when they are actually working, but include all the hours during
which they have to be on duty at Respondent's premises, including
the hours on standby or the "non-active" hours.
Complainants
therefore contend that:
17.1
All
time worked in excess of a nine hour shift (Complainants work a
maximum of five shifts per week) be remunerated as overtime at the
rate of one and one-half time the hourly remuneration (section
28(l)(c)(i), read with section 32(3) of the Labour Act);
17.2
All time worked in excess of a nine hours shift on a Sunday or on a
public holiday be remunerated as overtime at the rate of twice the
normal hourly rate (section 28(1)( c)(i), read with section 32(3)(b)
of the Labour Act);
17.3
All time worked on a Sunday or on a public holiday be remunerated at
the rate of not less than twice the rate of remuneration (section
33(3)(a) of the Labour Act);
17.4
A night work allowance be paid for all hours worked between the
hours of 20h00 to 07h00, calculated at the rate of 6 per cent of the
remuneration payable on a weekday (section 34(2), read with the
definition of "night work" in section 1 of the Labour
Act).
RESPONDENTS
CONTENTIONS
18.
The Respondents contends that the Complainants have been paid in
full in respect of all active periods of their shifts during which
they actually work.
19.
During the non-active period of shifts, the Complainants are merely
on standby, awaiting an emergency call. They do not work and are not
required to do so in the absence of such an emergency call. In
recognition for this, they receive a standby allowance in the sum of
N$341,24 per month.
If
anyone of the Complainants were to be called out to do active work
during the non-active period, such as going out on an emergency
call, such a Complainant would be paid overtime for the work thus
performed.
The
Respondent therefore denies that the period on non-active standby
duty constitutes work for the purpose of qualifying for
remuneration for overtime.
22. The
Respondent accordingly respectfully asks that the complaint be
dismissed.
RELIEF
23. In
the event of the above Honourable Court finding that the above facts
indicate
that the Respondent has contravened or failed to comply
with any provision of
the Labour Act, then Complainants pry or an
order in the following terms:
The
Respondent be ordered to discontinue contravening sections
28(l)(c)(i); 32(3) and 34(2) of the Labour Act;
That
Respondent be ordered to remunerate Complainants, with effect from
1 February 1996, in respect of all hours worked on a weekday or on
a Saturday in excess of a nine hour shift as overtime, at the rate
of one and one-half times their hourly rate of remuneration:
provided that Respondent may deduct any amounts already paid to
Complainants in respect of call outs;
That
Respondent be ordered to remunerate Complainants, with effect from
1 February 1996, in respect of all hours worked on a Sunday or on a
public holiday at the rate of not less than double their hourly
rate of remuneration: provided that Respondent may deduct any
amounts already paid to Complainants in respect of all outs;
That
Respondent be ordered to remunerate Complaints, with effect from 1
February 1996, in respect of all hours worked between the hours of
20h00 to 07h00, calculated at the rate of 6 per cent of the hourly
rate of remuneration payable on a weekday: provided that Respondent
may deduct any amounts already paid to Complainants in respect of
call outs;
Alternative
and/or further relief.
24.
It will be argued on behalf of the Respondent at the hearing of this
matter, that in the event of an order being granted in favour of
Complainants, the amounts already paid to Complainants in respect of
standby allowances also be deducted from any amounts that Respondent
is ordered to pay."
The
essence of respondent's case is that they are working for the entire
period that they are required to be on duty and to remain at one of
appellant's firestations, i.e. that they work both during what is
termed by the appellant as the "active" hours and during
the "non-active" hours. While the respondents are
remunerated for the former, they are not remunerated for the latter.
The appellant's contention on the other hand is that the
respondents do not work during the non-active periods and are merely
on standby awaiting an emergency call.
The
success of the appeal and cross appeal therefore turns on the
meaning of "work" and its application to the agreed facts,
in the absence of a definition of the term "work" in the
Labour Act.
The
respondents claim that during the periods of non-active duty they
are on standby and that constitute work for the purposes of
qualifying for overtime payment or some sort of remuneration.
The
Court a
quo found
in favour of the respondents.
The
conditions relating to hours of service for the respondents are set
out in the aforementioned agreed facts and I shall only highlight
some:
They
work in a two platoon system, being divided into two groups;
they
are on duty for different hours during a period of two weeks - in
the first week they are on duty for a total of 48 hours and in the
following week they are on duty for 120 hours;
their
duty is essentially made up by two components, namely active and
non-active standby duty;
during
the first week firemen serve 20 hours of active duty and 28 hours
of non-active duty, whilst during the second week, 36 hours is
spent on active duty and
84
on non-active duty;
firemen
are paid monthly and their remuneration is calculated with
reference to the active hours of duty;
by
agreement between the parties, they receive a standby allowance of
N$341,24 per month as recognition for non active hours on standby
duty which the respondents and other firemen have accepted and
continue to accept. The respondents have not tendered this sum for
the period spanning their claim;
the
non-active period is essentially standby duty where firemen are
required to be at the appellant's premises where they either live
or are provided with rooms where they can stay over;
whilst
on standby duty firemen may engage in leisure activities, sleep but
are not permitted to consume alcohol;
if
the firemen are called out during non-active period of standby
duty, they are paid overtime in accordance with the Act for such
work performed - which payments the respondents have accepted; and
firemen
on duty in the control room have to date not been paid overtime in
respect of those duties which had, prior to the complaint, been
regarded as non-active by the appellant. The appellant however
accepts that overtime should be paid in respect of this period and
tendered to do so in the Court a
quo.
At
the heart of this dispute lies the proper construction to be placed
upon the relevant sections and within the context of the Namibian
Labour Act as a whole taking into account the essential background
facts inter
alia that
the appellant, as a local authority, provides emergency services of
which firemen provide one such service. The respondents are employed
by the appellant to provide that service. By the very nature of the
emergencies they are required to deal with and be available to do
so, their conditions of service are extraordinary. As firemen they
are engaged in essential emergency work which requires an instant
response and for firemen to be available to this respond when the
need arises and when required to do so. That is the very essence of
the occupation of a fireman in the context of the respondents'
employment with the appellant. It is common cause between the
parties that the employees (respondents) are on duty while they are
at the fire station on standby.
In
the circumstances the respondent's position is similar to other
emergency service occupations such as medical practitioners engaged
in casualty work. They too may be required to be on call and to
respond rapidly when their services are required whilst on standby.
It is for that reason that the respondents are prohibited to consume
alcohol when on duty which would otherwise impair their ability to
render their professional services efficiently when called upon to
do so when an emergency occurs. Other occupations which would be
similarly affected would be those involving emergency related work,
for example water; sewerage and electrical engineers and technicians
employed by local authorities and/or state controlled utility
operations.
The
two platoon systems and the condition of service have been operative
since 1979 and were accepted by the respondents up to the time the
complaint was lodged that they were not being remunerated in
accordance with section 28, 32 and 34 of the Labour Act for the
entire period of non-active duty and not just those periods when
they actually perform services and actually work and for which they
are in fact paid overtime.
In
the circumstances in order to succeed with such a complaint the
respondents must establish that their standby duty constitutes work
as contemplated by the Labour Act in the relevant sections.
Statutory overtime is only payable in respect of employees who work
overtime in accordance with section 32(3) of the Act.
The
court a
quo in
its terse and scanty judgment found that the standby duty
constitutes work and ordered the appellant to stop violating section
28 and 32 of the Labour Act. It ordered the respondents to be
remunerated with effect from 1 February 1996 in respect of hours
worked on a week day or Saturdays in excess of a 9 hour shift as
overtime less amounts already paid to them in respect of "call
outs." The court a
quo did
not give supplementary reasons for the finding. The primary reason
which was provided by the court a
quo was
summarily stated as the fact that firemen, whilst on standby, are
not allowed to consume alcohol and that the non-active duty is upon
the instructions of the appellant. It is against this finding that
the appeal is directed.
It
appears from the stated facts that the respondents have agreed to
their conditions of employment providing for active working hours
and non-active standby duty in respect of which they received (and
have for years received) a standby allowance. They have for years
accepted terms of their employment contract which clearly
contemplates that there is a distinct difference between active and
non-active standby duties. These conditions of service contemplate
that non-active standby duty is not regarded as work for the
purposes of remuneration and that overtime payment would however be
made in respect of any work performed during standby. By agreeing to
these terms, the respondents accepted this basis of their employment
and remuneration therefor and that their conditions of employment
would be interpreted and operate in this manner. In interpreting the
contract of employment between the parties, the conduct of the
parties is an important tool of interpreting in interpreting the
parties' intentions as expressed in their agreements.
By
their conduct the respondents accepted the mode of payment adopted
by the appellant and also that their work, for the purpose of
overtime remuneration, would not include non-active standby duty,
especially when regard is had to the fact that overtime is
contemplated and is and has been accepted for any work actually done
during non-active standby duty.
See
in this regard Kruger
v
Municipality
of Windhoek and Another, (unreported
5.11.1996 and Consolidated
Diamond Mines v Administrator, SWA 1958
(4) S.A. 572 (A).
The
contractual rights between parties, namely the acceptance and
agreement to employment in terms of the terms of employment is in
accordance with the common law right of parties to contract on such
terms as are determined and negotiated between them. These rights
are protected in the sense that there is a presumption against the
deprivation of or interference with common law rights and in the
case of ambiguity an interpretation which preserves those rights
will be favoured. See Steyn, Die Uitleg van Wette (5ed) at 103 - 105
and the authorities collected there, and S.A
Breweries Ltd v
Food
and Allied Workers Union & Others, (1989)
10 LJ 844 (A) at 850 in the context of Labour Legislation.
As
the parties clearly distinguished between active and non-active
standby duties for purposes of qualification for overtime
remuneration, the real question to be decided is merely whether
there is any provision (specific or implied) in the Labour Act which
prevents parties from determining in a bona
fide agreement
(which is not in
fraudem legis) what
kind of activities are of such a nature that they qualify for
overtime remuneration and which do not. In other words whether the
parties can agree upon the type of activity which constitutes the
performance as work
for purpose of qualifying for overtime remuneration or not. If this
question is then to be answered in the negative, there is no basis
(or any reason) whatsoever for a court to interfere with the terms
of employment agreement.
The
answer in my view to this question is that the agreement that was
entered into between the parties is plainly not in conflict with any
of the provisions contained in Part V of the Labour Act because an
agreement along those lines is not proscribed in any sense in the
Act; and having due regard to the presumption against interference
with common law rights (when interpreting a statute), there is no
basis to contend for an implied prohibition to that effect in the
Act. The definition of overtime as contained in section 1 of the
Labour Act puts the issue beyond doubt. It clearly contemplates that
an employee will only qualify to be remunerated for overtime if he
or she does substantially the same kind of work
during those hours in respect of which he or she receives a basic
remuneration and those hours in respect of which he or she qualifies
for overtime.
The
definition of overtime in the Labour Act which provides:
"overtime:
means that portion of the time which an employee works for his or
her employer which is in excess of the ordinary working hours
applicable to such an employee."
The
active verb "works",
as
interpreted in accordance with the canons of construction of statute
means that the work performed by an employee in excess of the
ordinary working hours is contemplated as being of the same kind
or nature,
as the work performed in ordinary working hours, in order for the
employee to qualify for overtime remuneration.
Therefore
when the respondents joined the appellant's services, they accepted
that employment in accordance with the applicable conditions of
employment would contemplate active and non-active duty and the
payment in the above terms for those duties. They thus knew that the
work of a firemen would require unusual hours and considerable and
extended periods of non-active duty when they would be on standby
and available to instantly respond to an emergency. Such conditions
are inherent in the exigencies of the work of a fireman.
Rene
v Gordons & Others 88(1)
S.A. 1 p.22E-H.
These
conditions are not however entirely unique but are also experienced
by other occupations where availability to attend to emergency
situations is inherently part of those occupations. An example would
be a doctor working in casualty who not only has hours of work but
also has periods of time when he or she would be on standby duty and
be available to respond rapidly to an emergency.
Although
not directly in point, the English case of Johnstone
v Bloomsbury Health Authority [1991]
2 All ER 293 (CA) involved litigation concerning a doctor's hours of
service. Although the legal issues involved in the matter are not in
point in relation to the issue in dispute in this matter, the
conditions of service of the doctor required him to work a basic 40
hours per week for which he was paid and that he was also required
to be available, on call, for a further 48 hours on average per
week. Hours actually worked over 40 were not paid at a high rate but
at only one third of the usual rate. The case concerned a complaint
as to whether the conditions of service in which a doctor worked 88
hours a week were injurious to him. Whilst it was not decided in the
case, it was accepted by the parties that the doctor actually only
worked for those hours for which he was called out and required to
work and for which he was paid. It was accepted that he was not paid
and did not work for all 88 hours for which he contracted himself to
be available.
The
respondents are free to contract either individually or through an
association or union for more favourable terms in the form of
greater payment for a standby allowance. The appellant has indicated
that it is willing and prepared to negotiate this aspect.
If
cognisance is had to the fact of the Johnstone-matter supra
then
it can be concluded that the non-active standby duty of the firemen
does not constitute "work" for the purpose of sections 1,
28, 32 and 33 of the Labour Act.
It
is clear that the overtime worked, when the respondents engage in
actual work on standby duty, is in terms of an agreement, as is
contemplated by section 32(2). The agreement concerned is embodied
in the conditions of employment setting out the basis upon which
they are employed and are remunerated and the appellant complies
with its obligation to pay the respondents "who work overtime".
This is done at the rates provided by section 32 in respect of
actual work performed during standby duty. Overtime is thus paid and
the work
constituting overtime is accordingly paid for in full. The appellant
has accordingly no further obligation in relation to the payment of
work constituting overtime by virtue of the provisions of section
32. As far as section 34 is concerned, it deals with and refers to
night work.
It clearly contemplates work
performed
at night. It cannot and does not contemplate payment for persons who
are merely on standby or on call whether they are medical
practitioners or firemen and who could
be called out at night in the case of emergency. Such persons are
able to sleep or engage in leisure activities at night whilst on
standby. Such activities including sleeping at night without there
necessarily being any actual interruption for an emergency call,
cannot be brought within the definition of night work
as is contemplated by section 34. The same considerations apply in
respect of the interpretation of section 32(3) which requires an
employer to pay overtime to an employee who
works overtime.
Section 28 as well contemplates people working
on shift and not merely being on standby who could then conceivably
be called out to work.
In
interpreting the term "work", regard must be had to the
ordinary grammatical meaning to be used in accordance with the
generally accepted canons of construction of statutes. The ordinary
grammatical meaning of work in this action means
"purpose
of action involving effort or exertion, especially as a means of
making one's living; labour, toil; a thing to be done or do; what
person (or thing) has to do; a task, a function".
See:
The
New Shorter Oxford English Dictionary
(1993) Vol II 3717.
The
verb "work" has a corresponding meaning in its ordinary
grammatical sense. It means
"perform,
produce, do (a task, deed process etc) produce (as) by labour or
exertion, make, construct..."
See:
The
New Shorter Oxford English Dictionary
supra
at
3718.
To
construe work in the sense contemplated by the respondents would
give rise to a strained and extremely wide meaning contrary to the
ordinary meaning of the term as usually understood. Upon a proper
construction of the sections in question referred to above, "work"
should be limited to its ordinary grammatical meaning and not
receive the very strained and extremely wide interpretation sought
to be placed upon the term by the respondents.
In
construing the meaning of "work" in the context of the
definition of strike in a similarly worded definition of strike in
the then applicable South African legislation, the
Appellate
Division (now Supreme Court of Appeal) in South Africa held that the
term "work" should not be widely construed and that it
should be narrowly interpreted, embracing the presumption against
the deprivation of or interference with common law right in this
context referred to above. It held that the term that work must be
limited to mean work that an employee is contractually obliged to
perform and would not extend to voluntary overtime work for the
purpose of a definition of a strike and that the refusal to perform
voluntary overtime work would not constitute a refusal "to
continue to work" or
"to
resume their work".
SA
Breweries Limited v Food & Allied Workers Union & Others,
supra.
The
consideration that all firemen including the respondents, whilst on
non-active standby duty, may not partake of alcohol is not in any
way dispositive of the question raised in this appeal and in the
complaint. Given the nature of the provisions of emergency services
such as would also be provided by doctors, plumbers, electricians,
magistrates (on week-end duty) and other person, who by virtue of
their conditions of service are required to be on standby after
hours, such a term (abstaining from alcohol on standby) would, if
not an express term of their conditions or service, most certainly
have been implied. This requirement can not however elevate
non-active standby duty to the performance of work
in order to qualify for overtime in terms of the Act, as was found
by the court a
quo.
The
fact that the appellant as employer would appear to have devised the
platoon system, does not mean that the non-active standby duty
performed by the respondents
and
other firemen becomes work
"on
the instructions of the employer", as
found by the court a
quo. The
requirement to perform /on standby duty is part and parcel of the
conditions of service to which the respondents agreed, even if duty
rosters are determined by the appellant pursuant to those conditions
of service. It does not define the nature of that duty and certainly
does not elevate it to the performance of work.
In
the result the complaint should have failed and therefore the cross
appeal is dismissed. The appeal succeeds.
ON
BEHALF OF THE APPELLANT Instructed by:
Adv
D F Smuts Adv R Heathcote Shakingo Law Chambers
ON
BEHALF OF THE RESPONDENT Instructed by:
Mr
C Light Legal Assistance Centre