Do South African employers have to pay their employees during load shedding?

 ·6 Apr 2019
Eskom power money

Recent load shedding has had a devastating on the economy, with some economists stating that the power outages have led to trillions of rands in lost production.

Without electricity, many businesses cannot function, and in those instances, employees are unable to work.

It also opens up a number of labour questions as to where South African employers and employees stand during periods of load shedding.

Employers might be under the impression that in instances where their employees are unable to work, that the ‘no work no pay’ principle applies, said Aadil Patel, a director at 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, he said.

“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.

“Therefore, if the 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 which is obligated to pay employees while simultaneously not making any revenue during those hours of non-activity, Patel said.

“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,” he said.

However, it is crucial to note that to make the changes legally binding, the employees need to agree to all proposals, he said.

“If no agreement can be reached, then the risk and prospect of restructuring in terms of the Labour Relations Act becomes a reality.”

Patel said that there are some industries that have already considered the dire effects of load shedding and entered into agreements on procedures for such situations.

For example, the Metal and Engineering Industries Bargaining Council Main Agreement for 2017 – 2020 states in s7, that ‘short time’ is, “the implementation of reduced working time, ie fewer number of hours per day … owing to … circumstances beyond the control of the employer”.

“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,” he said.

Read: Law firm to sue Eskom for load shedding damages

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