Dear Career Advisor:

I’m working as a practical nurse through an agency, and I work a 12-hour shift each day. When it’s time for me to get vacation leave my employer only wants to pay based on eight hours per day, stating that the other hours are overtime and that the company does not use overtime hours to calculate leave. Is this right? What is the correct way of calculating my leave entitlements?

Regards,

Marion

Dear Marion:

Thank you for your questions and for choosing the Jamaica Observer as your source for career advice.

With respect to the circumstances of your employment arrangements, there are a few pertinent details that would be necessary in guiding our response. Among these are the following:

i) How many days per week do you work on a regular basis?

ii) Do you work 12 hours per day for five days per week, and are you paid at overtime rate for the extra four hours each day?

iii) What does your employment contract say in respect of your normal workday, normal work week, and overtime pay?

We hope that by your contractual arrangements — written, oral, expressed or implied — you are not being deprived of your entitlements in respect of fair compensation under the Jamaican laws.

Let’s explore a few of these provisions that would be of relevance to your situation. We will highlight a few of these provisions under the Minimum Wage Act, the Flexible Work Arrangements, and the Holiday with Pay Order.

Work time

i. Normal workday is defined as any day on which the worker is normally required to work for his employer but does not include a rest day or a public holiday.

ii. Normal work week is the number of hours in each week during which the worker is normally required to work for his employer.

iii. Under the Flexible Work Arrangements you can work up to 12 hours per day at single time rate; however, overtime pay takes effect after you have completed 40 hours in a week. Your vacation leave entitlement would remain the same as under the Holidays with Pay Order.

Pay rates

i. Single time work refers to work done during any period not exceeding eight hours on any standard day or 40 hours in any one week of five standard days.

ii. Normal wages is the remuneration regularly paid by your employer as wages.

iii. Minimum leave or holiday pay, under the Holidays with Pay Order, is defined as remuneration payable in respect of each week of holiday with pay earned in respect of the last normal working week prior to the commencement of such holiday or the normal weekly wages divided by the number of working days constituting such normal working week.

If we are to go by the assumption that your normal work arrangements consist of 12 hours per day for five or more days per week (exceeding 40 hours in any one week), and for these extra hours, above eight hours per day or 40 hours per week, you are not normally paid overtime, you would be entitled to have your vacation leave calculated based on your “normal” 12-hour shift workday.

Additionally, if the assumption previously mentioned is correct (that your contractual normal work week exceeds 40 hours at normal/single time pay rate), then we are recommending that you take immediate steps to have those contractual arrangements reviewed by your employer and amended to be in keeping with the provisions of the Jamaican laws. You should not be contracting yourself out of benefits for which you are entitled.

If your talk with your employer does not lead to positive results, then seek assistance from your trade union. If you are not a member of a trade union, please seek assistance from the Industrial Relations Department of the Ministry of Labour and Social Security.

We hope you will be able to have this matter favourably addressed and that you will obtain the benefits for which you are entitled in short order.

All the best,

Career Advisor

Carolyn Marie Smith is associate vice-president, student services at Northern Caribbean University in Mandeville, Manchester. Submit your questions to her at careeradvisor@nu.edu.jm