With endless burden reduction becoming a part of our lives in the future, many employees are worried about their work and may reduce their income.
The recent announcement of the implementation of the daily burden could have severe implications for business and labor relations, according to Jacques van Wyk, director and Michiel Heyns, senior associate at Werksmans Attorneys.
He said employers and employees should know their rights and duties during the period of interrupted power supply.
“Employers must ensure that they comply with the requirements of the labor law and at the same time implement measures to reduce the negative impact on the business.
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Obligations of employees and employers in relieving burdens
“Many employers are under the impression that employees cannot work due to reduced workload, the principle of ‘no work, no pay’ applies, but this is not the case.
“Our public and labor laws are clear that if an employer expects an employee to work at certain times and days and the employee complies with those requirements, the employer must pay for that time, regardless of whether the employee is able to perform the duties or not.”
An employment contract is a reciprocal agreement and the employer must pay the employee if they perform work or provide product capacity at the employer’s disposal, Van Wyk and Heyns said.
“The obligation to pay and the right to appropriate remuneration do not arise from actual performance, but from the tender of service or productive capacity.”
This means that if you offer to do a job and your employer does not want you to work or is unable to provide you with work due to reduced workload or other reasons, your employer still has to pay your wages or salary.
“Your employer is, therefore, obligated to do so even if you are unable to do so due to circumstances beyond your control.”
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They say some employers may want to treat these stoppages as meal intervals to reduce losses related to work stoppages during the opening, but the problem with this approach is not only a break in the power supply can last for several hours but also that, in terms of Section 14 of the Basic Provisions of the Employment Act, the employer must pay employees for a lunch break of more than 75 minutes, unless the employee lives on the premises.
Van Wyk and Heyns say that a better strategy for some employers is to rely on agreed procedures that apply to production interruptions, such as in the metal and engineering industries.
Bargaining council rules on burden shedding
The Metal and Engineering Industries Bargaining Council Main Agreement distinguishes between planned and unplanned load shedding.
Unplanned load shedding, for example, where Eskom cannot with full certainty inform the public about when the load will be shed. Planned load shedding is load shedding that occurs at a predetermined and announced time and date.
In the terms of Section 7 of the agreement, the employer can apply “short time due to lack of work and / or materials and other applicable contingencies, including planned load reduction and / or unexpected contingencies and / or uncontrollable circumstances .employer”.
In unexpected or unplanned situations, such as unplanned load shedding, the employer can choose to send the employee home, if he accepts work for not less than four hours or pays or expressly instructs the employee to be sent home, when the employer believes if work can be continued. , if the employee receives no less than four hours of work or pay.
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The agreement provides “[w]here the employer does not apply a short period of time to respond to the planned or predicted load and the employee reports work but is sent home by the employer, he will get paid 8 hours for that day.
Unfortunately, Van Wyk and Heyns say, most load shedding is not planned with Eskom only announcing the implementation a few hours before it starts or changing from phase 1 to phase 2 at some point during the load shedding period.
“This may be disturbing for employers and especially for employers in the metal industry and large engineering that are subject to the agreement. Employers can apply for a short period of time, expecting to reduce the load starting on a certain day and if the load does not continue, the employer is left with a minimum staff capacity .
In addition, if the load shedding is done unexpectedly or increases in level, the employer has no choice but to send the employee home, paying wages for at least four hours even if he is unable to work.
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What happens when you let go of the burden on other industries?
Not all industries have the same agreement and Van Wyk and Heyns said that employers who do not fall within the scope of the agreement, the choice is not easy.
Another question that arises during the load shedding period is how much employees should be paid if they have to work beyond normal working hours to make up for the hours lost during the day.
According to the Act, any work done after normal hours to achieve production will be considered overtime and will be subject to additional, overtime pay, but employers and employees can agree on a change in working hours or shift structure to reduce the financial losses caused . by shedding the load.
He also stated that it is not mandatory in the Act to work overtime, but circumstances, such as operational requirements caused by the load, may warrant the extension of working hours.
“Employers can ask employees to start work later than usual and finish later than usual, but employers cannot impose new working hours unilaterally and most employees must agree to the change.”
What about payment for hours can not work. Van Wyk and Heyns said that the employer and employee can agree in the employment contract that payments will be suspended, but the difficulty is that the employee must agree to the terms.
If the employee refuses, the change cannot be made unilaterally.
“If the employee does not agree to changes in working hours, shift structure, salary or similar measures designed to relieve the burden of the employer in relieving the burden, the employer may be forced to carry out the retrenchment procedure in section 189 or 189A of the Labor Law. Relationship Law.”
The employer must follow certain steps and show that due to the operational requirements imposed by the reduction of the load, some employees must be removed.
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Another challenge when shedding loads
Another burden-reducing issue for employers is dealing with what employees might consider wrong, such as arriving late.
Van Wyk and Heyns warn that employers should be careful and aware that there are exceptional circumstances when shedding loads.
Arrival delays due to load shedding, for example, must be managed and employees advised on how to deal with the impact of load shedding on travel, traffic and daily life.
“On the other hand, employees also have an obligation to take appropriate measures to reduce potential problems that arise during load shedding periods, such as increased travel time or less time available during normal working hours to complete tasks.”
As the burden of shedding will be with us for some time to come, the employer must be careful not to contravene the requirements of labor law during this period in an effort to reduce the consequences of the opening, they said.
His advice is that employers negotiate plans to mitigate the effects with employees.
“For example, where load shedding is planned for the beginning or end of the shift, the shift time can be changed to ensure that no work time is lost.”
Employers should also be flexible and may use time off for staff training or meetings.
“It is important that employers and employees understand the serious implications of workload on both sides of the employment relationship and engage in meaningful consultation to ensure the least disruptive outcome.”