Eskomplicated – Navigating employment obligations in times of power interruptions

Introduction

South Africa’s persistent issue of load shedding has posed unique challenges for both employers and employees. The unpredictable nature of power cuts has left many businesses grappling with the implications of downtime on productivity and remuneration. In this article, we explore the legal aspects of labour relations during load shedding, shedding light on the responsibilities of employers and the rights of employees.

Remuneration during load shedding

It is crucial to understand that even when load shedding disrupts work, employees are entitled to their full remuneration. The employment contract obligates employers to pay employees when they are ready and willing to work, irrespective of external factors beyond their control, such as load shedding. This position of course is different when dealing with vis major or impossibility of performance such as the COVID-19 lockdown when employers were not permitted by national legislation to remain open and accept the employees tender of services.

Deductions and “no work, no pay”

The principle of “no work, no pay” does not apply in the context of load shedding. Employers cannot deduct wages or alter remuneration agreements unilaterally. Deductions from remuneration can only be made with written consent from employees or in compliance with laws, collective agreements, court orders, or arbitration awards.

Changing employment contracts

Employers cannot unilaterally change employment contracts to adjust for load shedding. Any changes must be negotiated and agreed upon with employees or unions. Attempting to alter employment conditions without proper negotiation can lead to legal consequences, including damage claims or constructive dismissal claims.

Negotiation is key

To manage the impact of load shedding effectively, employers and employees should engage in good-faith negotiations. Employers can propose changes in working hours, shifts, or overtime arrangements, but these changes should be mutually agreed upon. Failure to reach an agreement may lead to disputes or strikes, which could further disrupt business operations. Some options for negotiations include:

Swop out time

Taking early lunch breaks or meal intervals during scheduled load shedding. If employers require employees to work beyond their normal hours to compensate for lost time during load shedding, it constitutes overtime. Section 10 of the Basic Conditions of Employment Act (“BCEA”) regulates overtime. Overtime must be arranged with prior agreement and paid at 1.5 times the normal hourly rate. Employers should also be aware of law surrounding meal intervals. Section 14 (3) of the BCEA, holds that an employee must be remunerated for any portion of a meal interval that is in excess of 75 minutes, unless the employee lives on the premises at which the workplace is situated.

Agreements with employees

Employers can consider agreements similar to those found in the Metal and Engineering Industries Bargaining Council main agreement. This agreement grants employees the option, during scheduled load shedding, to receive compensation based on the hours worked that day, at a reduced rate. Conversely, in the event of unforeseen load shedding, employees may be permitted to leave work with instructions to return once power is restored, with payment for a minimum of four hours of work on that day.

Employers must consider encouraging staff to engage in remote work arrangements and submit time sheets and work records as alternative strategies.

Retrenchment as a last resort

In extreme cases, where load shedding severely affects business operations, employers may consider retrenchment due to operational requirements. However, alternatives such as short time or negotiated solutions should be explored first. The process of retrenchment, as regulated by sections 189 and 189A of the Labour Relations Act, should be followed meticulously.

Conclusion

Navigating labour laws during load shedding is a complex challenge that requires open communication and negotiation between employers and employees. Both parties should prioritize finding mutually beneficial solutions to mitigate the impact of load shedding on business operations while upholding legal obligations and employee rights. By doing so, businesses can adapt to this ongoing challenge and maintain a productive and harmonious work environment.