After weeks for searching for work, one day David Moore (name changed) of St. Catherine received a call asking him to report for work with a transport company the following morning.

Moore accepted the job as a driver, expecting to be paid a fixed sum each week. However, he soon discovered that remuneration changed according to the number of hours worked. This in turn, could vary from a few hours weekly during holidays to seven days per week in school time.

During holidays, Moore was unable to pay his bills. During busy periods, he was able to meet his financial obligations but his work days were 18 hour long transporting passengers, carrying out mechanical tasks and running personal errands for the boss.

The driver states that he sometimes got only three hours of sleep in any twenty-four hour period. His employer refused to employ more drivers or put in place a shift system. Additionally, his employer, he said, was also verbally abusive and 'disrespectful' at times. Most of all, he felt he was underpaid.

Michael Kennedy, Director of Pay and Conditions of Employment at the Ministry of Labour and Social Security, says the ministry can determine underpayment from an investigation of specific cases. According to him, "If the person is being paid at the minimum wage or close, we will have to determine the hours of work. We will investigate to see if there is underpayment. Based on Minimum Wage Act it is time and half for any hours over eight hours for the day and over 40 hours for the week."

He points out that an individual, like Moore, who is paid $1,500 daily, is receiving compensation above the minimum wage of $740 per day. Additionally, drivers, especially those who drive Executive buses, with set times for transporting passengers to and from work, received a break from work between 11 a.m. and 2 p.m. and so, may not be working continuously, even though their total hours are long.

According to Kennedy, long hours of work do not necessarily translate into mandatory overtime payments. A lot, he says, depends on the employment contract.

"The employer might say that based on the nature of the job, the employee will need to work 12, 13 or even 14 hours. Alternatively, it could be six hours. It all depends on the agreement made."

He adds that the stipulation by the Minimum Wage Act is that, once a worker is being paid minimum wage for the first eight hours, anything over 40 hours is overtime. However, if the total sum paid is more than minimum wage, overtime payments will have to be negotiated and settled between employer and employee. There is nothing in law to force employers who already pay in excess of minimum wage to pay overtime.

It is therefore left to the worker to negotiate the best deal for total hours and other conditions of work and compensation, before agreeing to accept a job.

"The Minimum Wage Act makes a distinction. If the contract indicates 40 ours, once you go over 40 hours, there is the expectation and understanding that more money will be paid. However, if it is a situation where you are paid $50,000 monthly, an employer is within his right to say from time to time overtime pay might or might not be applicable," Kennedy makes clear.

He recommends that employees should make sure that pay is satisfactory for hours worked before accepting employment.

"The days of a person getting a job and just asking what the pay is are over. Ask, 'How many hours am I expected to work per day per week?' and then compare with salary."

Kennedy notes that employment often involves seasonal changes in length of time worked. For example, a bakery at Easter may require workers to work long hours
as more buns are made for export and the local market.

"In instances like these sometimes employers have arrangements for pay which are adequate, fare and legal. Where payment is in breach of the Minimum Wage Act and it is reported to us we will deal it," the government official notes.

*avia.ustanny@gleanerjm.com