CONTINUOUS LOAD SHEDDING: WHEN CAN EMPLOYERS IMPLEMENT SHORTENED WORKING HOURS?

It is a truism that companies require electricity for their operations.

The declaration of the?severe electricity supply constraint as a national state of disaster?was terminated and revoked on 5 April 2023 in?Government Gazette?No. 48400.?

At the time of publishing this article, some parts of the country still experienced load shedding; therefore, we address the looming questions about the implications of continuous load shedding in the workplace in this blog.

Companies are still dealing with the effects of the Covid-19 pandemic. The amended national minimum hourly wage now set at R25.42, together with continuous load shedding, affects both employers and employees directly. It is an inescapable fact that South African businesses and its residents are currently experiencing financial difficulties.

Neither the employer nor its employees are at fault, but companies need to adopt proactive and unique approaches to ensure that their business operate while at the same time preserve employment and comply with our employment legislation.

Companies are encouraged to have an action plan in place which is triggered on commencement of a complete blackout.

What are the alternatives to load shedding in the workplace?

Employers and employees can conclude interim agreements; however, this must be approached with caution as the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997) (BCEA) provides for the basic guaranteed rights of employees which cannot be contracted away.

Employers may not implement the ‘no-work, no-pay principle’ during load shedding. If an employer fails to remunerate its employees due to load shedding, this action is considered to be a unilateral change of the?contract of employment , with the employer being in breach of the contract.

Alternatives that are available to companies:

• Purchase a generator or install solar panels when load shedding is implemented, which could alleviate the gap in working hours experienced.
• Implement working-from-home initiatives where practically possible.
• Obtain the latest load shedding schedule and create an agreed-upon working hours schedule around the load shedding periods. This type of agreement must nevertheless be congruous with the BCEA requirements.
• Companies which fall within the scope of a Bargaining Council must abide by their respective Industry or Sector Main Agreements when considering reducing working hours or justifying salary reductions and / or make use of the exemption procedures should the employer not be able to meet the requirements set out in the Main Agreements when experiencing unforeseen contingencies such as planned blackouts.
• Implement a temporary short-time agreement and compensate employees only for the hours worked. The hours lost can be claimed from the Unemployment Insurance Fund (UIF) by selecting reduced working hours as the reason for the claim. Employees must bear in mind that if they select this option, their credits will be used, which may have an influence should the employee be retrenched at a later stage.
• Compress the employee’s working week as stipulated in section 11 of the BCEA, which requires or permits an employee to work up to 12 hours in a day, inclusive of the meal intervals, without receiving overtime. This alternative procedure provides that the employee cannot work more than 45 ordinary hours in any week; more than 10 hours’ overtime in any week; or on more than 5 days in any week.
• Another available alternative which excludes the payment of overtime is the averaging of hours of work in terms of section 12 of the BCEA, where the ordinary hours of work and overtime of an employee may be averaged over a period of up to 4 months in terms of a collective agreement.

What are the options for employees during load shedding when working from home?

Employees working permanently from home ?or in a hybrid environment can purchase an Uninterrupted Power Supply (UPS) or inverter for their home so that their working day commences and continues as closely as possibly to a normal working day despite the load shedding schedules.

A crucial component that must be actively pursued is open and transparent communication between the employer and employees. Therefore, any amendment to the employee’s working hours or change made in the employee’s employment conditions by the employer, can only be executed after consultations have taken place and written consensus is reached.?

Should the employer exhaust all options and alternatives to avoid a?retrenchment ?and fail to reach an agreement with the employee on the proposed short-time or amended working conditions or reasonable alternative, the employer will be permitted to proceed with a retrenchment procedure pursuant to the Labour Relations Act, 1995 (Act No. 66 of 1995).

Ultimately, in these difficult times employers and employees should strive to co-operate and act in good faith towards one another and to achieve consensus on reasonable and financially viable outcomes.

In conclusion

It is advisable for employers to start considering possible alternatives as soon as possible to avoid retrenchments and instead conclude successful and agreed-upon interim agreements or policies with its employees.

SERR Synergy’s professional labour teams across South Africa will provide employers with guidance regarding obligations and requirements within the labour legislation specific to their business and industry? to ensure that they are compliant with the applicable legislative aspects.

About the author:?Lané Boshoff is SERR Synergy’s Corporate Legal Researcher. She obtained a BA Law degree and LLB from the University of Pretoria and is also an admitted Advocate of the High Court of Gauteng – Pretoria.

Sources acknowledged:

• Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997).
• Labour Relations Act, 1995 (Act No. 66 of 1995).
• Classification of National Disaster: Impact of Severe Electricity Supply Constraint in?Government Gazette?No. 48009 dated 9 February 2023.
• Declaration of a National State of Disaster: Impact of Severe Electricity Supply Constraint in?Government Gazette?No. 48009 dated 9 February 2023.
• Regulations issued in terms of section 27 (2) of the Disaster Management Act, 2002 (Act No. 57 of 2002): in?Government Gazette?No. 48145 dated 27 February 2023.
• Termination of National State of Disaster for Impact of Severe Electricity Supply Constraint in?Government Gazette?No. 48400 dated 5 April 2023.
• Revocation of the Classification of the Severe Electricity Supply Constraint as a National Disaster in?Government Gazette?No. 48400 dated 5 April 2023.

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