Do no lights mean ‘no work, no pay’? Don’t be in the dark
Law firm sheds light on employers’ obligations when load-shedding hits
When Eskom turns off the power, it does not mean it’s “no work, no pay” for SA’s workforce.
That’s the word from commercial and corporate law firm Cliffe Dekker Hofmeyr, which warned this week that applying the “no work, no pay” principle would be an infringement of the Basic Conditions of Employment Act.
This comes as Eskom appealed to consumers last week to use electricity sparingly, as colder weather was expected to increase the risk of load-shedding.
It is no secret the intensified load-shedding has had a devastating economic effect on many companies.
Without electricity, many businesses cannot function, and in those instances, employees are unable to work.
“Employers might be under the impression that in instances where employees are unable to work, that the ‘no work, no pay’ principle applies,” said Aadil Patel of Cliffe Dekker Hofmeyr.
“However, when hours are lost as a result of power outages, the fact that employees are unable to work is due to no fault of the employer, nor the employee.
“Therefore, the no work, no pay principle would not apply,” said Patel.
In accordance with common law and the Basic Conditions of Employment Act, an employment contract is a reciprocal contract in which the employee agrees to work for the employer who will remunerate the employee at an agreed rate.
If an employee arrives at the work premises to tender services and the employer, for any reason, cannot provide work for the employee, or the employee’s work relies on various tools and equipment that require electricity, the employer must still pay the employee.
“Unfortunately, this can be financially crippling for a company who is obligated to pay employees while simultaneously not making any revenue during those hours of non-activity.
“Since an employment contract is reciprocal by nature, a possible solution to minimise the effects of load-shedding would be to negotiate with the employees or unions, an agreement which adjusts the hours of work to avoid facing hours of non-activity,” said Patel.
“However, it is crucial to note that to make the changes legally binding, the employees need to agree to all proposals.
“If no agreement can be reached, then the risk and prospect of restructuring in terms of the Labour Relations Act, No 66 of 1995, become a reality.”
Patel said there were, however, some industries that had already considered the dire effects of load-shedding and entered into agreements on procedures for such situations.
“In situations where an employer elects to send the employees home or alternatively, requires them to return to work where work can be resumed, employees shall receive no less than four hours’ work or pay in lieu thereof.”
Load-shedding has introduced countless challenges that threaten the financial stability of many companies across the country.
“However, it is crucial that employers do not risk breaching labour legislation to avoid financial losses.
“Rather, there is a duty on the employer to plan accordingly to protect the company and the livelihood of the employee,” said Patel.
Cosatu’s Edwin Mkhize said the union had raised the issue of nonpayment during load-shedding.
“Load-shedding is not a worker’s fault. Workers cannot be penalised when Eskom cuts off the electricity.
“It cannot be correct if a worker has reported for work and there is no electricity, that they receive no pay. It is certainly an infringement of the Basic Conditions of Employment,” he said.