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Due to persistent load shedding since the end of 2022, the question of payment has again been raised: Do employers have to pay employees during periods that they cannot work as a consequence of load shedding? We addressed the question early in 2015, but the principles are worth repeating.

Our understanding is as follows:

1. The normal rule

The normal rule is that employers have to pay employees who make their services available to the employer in terms of their contract of employment. The obligation to pay is not dependent on any work actually being performed.

The employer therefore has an obligation to pay even if the employees’ services cannot be utilized due to circumstances beyond the employer’s control, such as load shedding.

2. Exceptions

The normal rule does not apply in the following situations:

(a) Hourly paid
Where employees have been appointed on a flexible (“as and when needed”) basis and are paid an hourly rate, the employer may arrange shifts to accommodate load shedding. In these circumstances, employees only need to be paid for the hours of work that have been agreed upon.

(b) Commission earners
If the contract provides that payment is dependent on the employee producing a certain result (e.g., commission earners), then the employer’s obligation to pay only arises once that result is delivered.

(c) Bargaining Council agreements
Some Bargaining Council agreements have provisions dealing with circumstances beyond an employer’s control, for example, the implementation of ‘short time’ or ‘lay-off’ with a proportionate reduction in their pay. These provisions tend to be of limited use, as they were not designed for prolonged or repeated disruptions like the current spate of load shedding.

3. New arrangement to accommodate load shedding

Some businesses are under severe strain operationally and are in need of a more flexible working arrangement with their employees. Employers may not unilaterally impose flexible working hours, though. They would be well advised to approach employees to negotiate a more flexible working arrangement, such as the one referred to in 2(a) above.

If employees refuse to agree to a more flexible arrangement, the normal rule – i.e., of having to pay the employees for merely being available to work) – will continue to apply. However, if the proposed arrangement is reasonably necessary in the circumstances, the employer may retrench employees who refuse to agree. They would need to follow due process, though.

In short, employees are normally entitled to payment during load shedding, but employers are not entirely at the mercy of Eskom. There are some exceptions and employers may enter into a contractual arrangement with their employees to mitigate the situation.

By Jan Truter for

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