Read the following scenario and answer the questions that follow.

Night Work

Section $17$: Night work

$(1.)$ In this section, $$night work$$ means work performed after $18$:$00$ and before

$06$:$00$ the next day.

$(2.)$ An employer may only require or permit an employee to perform night work,

if so agreed, and if$$

$($a$.)$ the employee is compensated by the payment of an allowance, which may

be a shift allowance, or by a reduction of working hours; and

$($b$.)$ transportation is available between the employee$$s place of residence and

the workplace at the commencement and conclusion of the employee$$s shift.

$(3.)$ An employer who requires an employee to perform work on a regular basis

after $23$:$00$ and before $06$:$00$ the next day must$$

$($a$.)$ inform the employee in writing, or orally if the employee is not able to

understand a written communication, in a language that the employee

understands$$

$($i$)$ of any health and safety hazards associated with the work that the employee

is required to perform; and

$($ii$)$ of the employee$$s right to undergo a medical examination in terms of

paragraph

$($b$.)$ at the request of the employee, enable the employee to undergo a medical

examination, for the account of the employer, concerning those hazards$$

$($i$)$ before the employee starts, or within a reasonable period of the employee

starting, such work; and

$($ii$)$ at appropriate intervals while the employee continues to perform such work;

and

$($c$.)$ transfer the employee to suitable day work within a reasonable time if$$

$($i$)$ the employee suffers from a health condition associated with the performance

of night work; and

$($ii$)$ it is practicable for the employer to do so$.$

$(4.)$ For the purposes of subsection $(3),$ an employee works on a regular basis if

the employee works for a period of longer than one hour after $23$:$00$ and before

$06$:$00$ at least five times per month or $50$ times per year.

$(5.)$ The Minister may, after consulting the Commission, make regulations

relating to the conduct of medical examinations for employees who perform night

work. $[$Section $90$ protects the confidentiality of any medical examination

conducted in terms of this Act$]$

Commentary

It must be noted that in the first instance $($paragraph $(2)$ above, night work may

only be performed by agreement.

Secondly, the employee must be compensated by the payment of an allowance,

or a shift allowance, or if no allowances paid, a reduction of working hours must

be instituted.

What this means is that, if no shift allowance is paid, then the working hours

must be reduced $$ say from $9$ hours to $7$ hours, but the employee must be paid

for $9$ hours.

The Act does not say how much the shift allowance must be$,$ nor does it say by

what method or formula it must be calculated, presumably then, that is left for

the employer and the employee to negotiate.

Thirdly, overtime may only be worked if transport is available to transport the

employee from his place of residence, to the workplace at the beginning of the

shift, and from the workplace back to his residence at the end of the shift.

This can be public transport, taxi, bus, train, a lift club, a lift with another

employee, his wife or family member transport him, or whatever. If no such

transport is available, then the employer will have to make arrangements for it

$$ such arrangements could include paying the employee a transport allowance if

the employee is agreeable to that.

The Act seeks also to take care of the health of the employees working night

shift.

It states that employees must be informed in writing, of any health or safety

hazards associated with the work to be done, and that if necessary the employee

has the right to undergo a medical examination, at the employer$$s expense, in

order to determine his fitness or otherwise to carry out the required work in

terms of the hazards existing.

Further, if the employee suffers any health hazards as a result of working night

shift, the employer must transfer him to suitable day shift work if possible.

$1\mathrm{.}1$ Identify and cite correctly the South African Labour legislation that

regulates night work as discussed in the above case study. $(2)$

$1\mathrm{.}2$ With reference to the case study above, discuss any three ways in which

an employee can be compensated for working at night. $(6)$

$1\mathrm{.}3$ Using the case study above, discuss two relevant common law duties of

the e

$1\mathrm{.}4$ Write a paragraph providing three conclusions that you are able to draw

from this case study.