Court rules SBS Transit's terms do not breach Employment Act

The terms of several collective agreements between SBS Transit (SBST) and the National Transport Workers' Union (NTWU) do not breach the Employment Act, but the language could be clearer to avoid confusion.

The Industrial Arbitration Court (IAC) president, Justice Chan Seng Onn, issued a written decision yesterday laying out his interpretation of the terms.

The court did not hear the claims of five SBST bus drivers who are separately suing their employer in the State Courts. The drivers claim SBST paid them below the Ministry of Manpower's regulated rate for overtime work, and that records of their working hours do not match their monthly payslips.

SBST had referred the terms of the collective agreement to the IAC as they affect not only the five drivers but also about 6,000 other SBST drivers.

Justice Chan said the collective agreements have been complied with, according to sample employment contracts, sample rosters and pay calculations submitted by SBST. Terms relating to rest days are also not in breach of the Act, he said.

But he noted that SBST's practice of having four hours of compulsory overtime (OT) a week in its employment contracts is different from what is defined in the Employment Act.

The Act states that employees shall not be required by contract to work more than eight hours a day or more than 44 hours a week. Any hours worked beyond this must be compensated with OT pay of 1.5 times the basic rate of pay.

In its contracts, SBST requires its drivers to work 48 hours a week, including four hours of what it calls "built-in" OT. Refusal to work the built-in OT hours is considered a breach of contract, SBST said.

But this 48-hour work week also includes at least 45 minutes of rest periods a day for breaks and meals, while the Act excludes breaks. In effect, this works out to 43.5 working hours a week and is not in breach of the Act, Justice Chan said.

"In determining whether there is a breach of the statutory limits for working hours, I adopt the same meaning for 'hours of work' as that defined in the Employment Act and not that adopted by the employers in their employment contracts.

"In addition, I have to treat the built-in overtime of four hours per week as part of the normal contractual working hours and not as overtime per se, which should always be optional for the employee."

He said the difference could cause confusion or misunderstanding and added that it would be up to SBST and the NTWU to decide if they want to review the work arrangements for bus drivers and adopt the definitions of terms like "hours of work" and "overtime" as set out in the Employment Act.

SBST had said in a previous hearing that it is entitled to require its drivers to work beyond the statutory limits, as public transport is considered an essential service under the Act. Justice Chan said there was no need to deal with this issue, as SBST is in compliance with the statutory limits, according to sample rosters it submitted.

Any disputes over this can be resolved by the Commissioner for Labour if they arise, but this provision is only for exceptional circumstances.

"If you employ just enough drivers and you find that in a situation where there is a shortfall due to some exigencies of service, every time you have to invoke this, that cannot be the way," Justice Chan told SBST representatives in court.

"You must employ enough drivers to have some buffer to cater for exigencies of service such that you don't need to invoke statutory exceptions for permanently exceeding the limits."