Load shedding has had a tremendously negative impact, on many South Africans, particularly on the business and economic sectors. It has become somewhat clear that load shedding is here to stay for the foreseeable future. If so, what does this mean for businesses that are unable to operate and the resultant staff wages for these downtimes?
While most employers are under the impression that the “no-work-no-pay” principle may apply, this is simply not the case. An employment relationship exists where an employee makes his/her productive capacity available to an employer at predetermined times. The employer remunerates the employee for being available to perform work. If the employer does not provide the employee with work to perform, it does not negate the employer’s obligation to remunerate the employee for his/her time. You may recall that a similar scenario occurred during the various SA lockdown levels in 2020 and 2021.
What options are available to the employer in such instances? Well, we recommend agreed-on short-time implementations, i.e. during peak periods of load shedding, the employer may reduce its employees’ working hours and remunerate them according to the hours actually worked. While most sectors and/or main collective agreements for specific industries contain predetermined and agreed short time provisions, many do not.
Employers should consider implementing such predetermined and agreed short-time provisions in their employment contracts. Thereby somewhat eliminating the necessity to reach an agreement with employees on a regular basis to implement short time during peak periods of load shedding.
It is important to note that while short-time may be agreed to and implemented, such provisions should not be used as long-term solutions and employees must be kept appraised of the situation, i.e. the duration for which short time is implemented, what the remuneration structure will be during these short-time periods when short-time will be lifted/reviewed and the rationale for the implementation of the short-time.
Employers must be mindful and also be cautious of not falling foul of section 9A of the Basic Conditions of Employment Act, 75 of 1997 (as amended) which provides that “An employee or a worker as defined in section 1 of the National Minimum Wage Act, 2018, who works for less than four hours on any day must be paid for four hours work on that day.” as well as where these employees earn below the Basic Earnings Threshold which is, as of 1 March 2023, R241 110.59 per annum.
In instances where employers are unable to maintain business with a larger staff complement and want to consider indefinitely implementing short time, it is advised against and such employer should consider initiating a retrenchment process through either section 189 or 189A of the Labour Relations Act, 66 of 1995 (as amended).
Should you see yourself in the aforementioned scenarios, we at Justine Del Monte & Associates Incorporated can assist you with, inter alia, drafting contractual short-term provisions, managing the situation around implementing short time and/or any resultant retrenchment exercises. With our assistance, there is, in fact, light at the end of the tunnel.