LABOUR

The Labour Workgroup is addressing all matters relating to the impact of the lockdown on employment and labour relations where organised business may have a role to play. New issues are likely to develop over time.

Businesses are having to deal with many challenges including how to deal with employment conditions of employees required to cease work during the lockdown. This has given rise to questions of continuing payment of wages; the use of annual leave; employee and employer relief from the Unemployment Insurance Fund (UIF) through the Corona Virus Temporary Employer-Employee Relief Scheme (TERS).

Without being prescriptive, approaches to these matters need to be considered on the basis of both existing law and of labour relations considerations. The potential survival of businesses will be a factor during the lockdown.

There are matters of broad guidance on employer duty of care obligations for employees carrying out essential services (with detailed healthcare matters being dealt with by the health workstream).

FOCUS AREAS

IMPORTANT RESOURCES

Coronavirus South African Resource Portal

Solidarity Fund

Posters and other resources

Gazetted regulations and guidelines

FAQs

The newsly established Business for SA – incorporating BUSA, the BBC and their affiliates –
represent the complete spectrum of businesses.

These include:
• large, medium and small businesses
• businesses with different levels of labour intensity
• businesses with varying levels of financial reserves
• businesses with varying abilities to continue generating revenues during the
lockdown, including depending on whether they provide essential services or are
able to operate with staff working remotely, and whether their customers or clients
are in a position to use and pay for their goods and services.

This means that different businesses have greatly varying levels of ability to continue paying
employees during the lockdown, whether for all or part of the lockdown period; or on a part
payment basis; or based at least in part on employees taking their annual leave during this
period.

It is also the case that, should the lockdown period be extended beyond the currently planned 21 days, all businesses will find their financial situations increasingly stretched, in many cases to beyond breaking point.

It is therefore not possible for business or their representative organisations to take a single
view on the question of payment to employees during the lockdown period.

With that in mind, employers are encouraged to be as generous as they reasonably can be
in the current circumstances in respect of payment to employees. We also believe, however,
that it is important to plan in a way that does not unduly destroy the ability of the business to
survive, or to reopen, when public health circumstances make it possible to do so.

Further, employers are encouraged, in whatever approach they take, to engage in open
and honest consultations with employees or their representatives over the approach to be
taken, and where possible to hear employees’ or their representatives’ preferences about
the approach to take, based on the business’s financial capacity. Continued employee
engagement is critical to the success of the approach that a business decides to take.

As we see it, there are a number of categories of businesses:

1. Employers and employees in essential industries, or those who carry out essential services for businesses that are carrying out zero or substantially reduced activities in order to be able to restart after the lockdown, and those who are able to work remotely from home.

In these cases, it is clear that the employer has a legal obligation to pay working employees for their work.

In these cases, where employees are working at their workplaces, it must be understood by the employer that the employer has a duty of care to working employees.*

2. Employers that are able and willing to pay for the time being. There are some sub-categories here:

  • The employer that is able and willing to bear the full cost.
  • The employer that is able now, or may become in the future, able and willing to pay a proportion of the employment cost. Some employers may be inclined to pay the equivalent of “short time” from the outset; others in this category may choose to undertake to pay in full initially but for a stated limited period of time.

3. Employers that, whether immediately or during the course of the lockdown, find that the only way it is feasible to continue paying is through employees using annual leave or taking unpaid leave. The BCEA gives employers the right to determine the timing of annual leave for employees where agreement is not reached. Taking annual leave is a mitigation measure because of the situation the business is in. To be clear, in this situation, it is not a choice between normal pay or annual leave. It is a choice between paid annual leave or unpaid leave.

4. Employers who must shut down operations because of the current lockdown, but who will restart operations as soon as the lockdown is lifted, and place employees on unpaid leave. In this case employers may be able to access the C19 TERS benefit. (Members are advised to wait before submitting claims for the COVID 19 TERS benefit, as the finalisation of the benefit and the claims mechanism may be subject to further change)s.

5. And unfortunately there will be those businesses that, right now or at some state before the conclusion of the lockdown, the owners of the business determine that there is no choice but to close the business.

In this case, it will be necessary for the business to initiate section 189 proceedings and be ready to pay severance payments. Employees may have access to the normal unemployment benefits from the UIF.

It should be noted that there remains some lack of clarity on the COVID-19 TERS. As a further reminder, members are advised to wait before submitting claims for the COVID 19 TERS benefit, as the finalisation of the benefit and the claims mechanism may be subject to further changes.

The number of applications for benefits is likely to be considerable and there are concerns
about the UIF’s capacity to ensure timeous payment. However, processes are now in place
(see below).
BSA will assess whether there are capacity challenges in the period ahead and, if so, offer
assistance.

These arrangements do offer a degree of relief and are welcomed. However, it represents
only a small proportion of losses that will be experienced as a result of the lockdown for
almost all firms.

In terms of the Occupational Health and Safety Act, every employer has the duty to ensure a safe and healthy work environment. The employer must take all reasonably practicable steps to ensure such a safe work environment.

In respect of essential service companies, there is probably a heightened duty and additional access control measures (such as temperature tests and strict access control) may be necessary. There is also a duty on employees to ensure that their conduct does not expose others to harm. Employees would accordingly be required to obey the reasonable instructions of employers pertaining to ensuring a safe working environment, failing which appropriate disciplinary steps may need to be taken. On this basis employees may also be required to disclose any event that might give rise to a reasonable apprehension of harm, such as contact with a person who tested positive for Covid-19, running a fever or displaying other flu-like symptoms.

One of the hardest hit sectors of the economy during the national lock down period,
announced from midnight on 26 March 2020 to midnight on 16 April 2020, may be domestic
workers.

They are not able to work remotely; they are likely to fall outside of the essential businesses
list; and they will be required to stay at home (unless of course, they live on the premises of
their employers, in which event they will be in lockdown at these premises).

Do those domestic workers who cannot work have a right to be paid during this period? The
employer’s duty to pay an employee arises from the employee’s ability and willingness to
tender services. In the case of the national lock down, these employees are not able to
tender their services.

In these circumstances, there is no legal obligation to pay the employee her/his
remuneration. The employee might have to rely on the benefits that government intends to
make available through various initiatives.

Of course, employers who can afford to do so, may decide to regard the lock down period
as a special form of leave, and continue payment, or they may pay a lock down allowance.
It would also be permissible to require the employee to they take her/his annual leave during
this time.

The CCMA has announced it will cease full operations and services for the duration of the nation-wide lockdown, Users requiring urgent assistance are encouraged to use electronic means such as email, fax, and CCMA social media accounts for labour related advice. Full details are available on the CCMA website www.ccma.org.za

The Labour Court has announced that no matters will be heard during the lockdown period.

With regard to urgent court matters, the Labour Court said parties must alert the Registrar explaining in full detail why the matter must be considered during the lockdown.

Where parties seek to bring an urgent matter the registrar to contact is as follows:

Johannesburg Ms. F Ntuli fntuli@judiciary.org.za Tel: 011 359 5760
Cape Town Ms. F Ismail FIsmail@judiciary.org.za Tel: 021 424 9035
Durban Mr. T Vilakazi TVilakazi@judiciary.org.za Tel: 031 992 6202
Port Elizabeth Ms. S Gerber SGerber@judiciary.org.za Tel: 041 502 6635

One of the measures that is designed to provide relief to employers and employees is the C-19 TERS benefit. On 3 April 2020, the Minister of Employment and Labour issued a revised Directive under the Disaster Management Regulations that will regulate these benefits. In addition, the benefits are subject to the terms of the memorandum of understanding or standard terms, which have also been published.

WHO CAN CLAIM?
• Contributors, i.e. employers and employees who contribute to the UIF.

• The employer must have closed its operations, or part of its operations, as a direct result of the Covid-19 pandemic, for a period of three (3) months or less.

• The size of the employer’s workforce does not matter. Special provisions of the memorandum of agreement apply to employers with fewer than 10 employees.

• The employee must have been in the employer’s employ on 27 March 2020, and must have suffered, or will suffer, a loss of income as a result of the closure.

• The benefit may only cover the cost of salaries during the closure – it may not be used for other purposes.

WHAT IS THE VALUE OF THE BENEFIT?
• The benefit is determined with reference to a sliding scale.

• Employees may get a percentage of their salary (between 38% and 60%).

• For purposes of this calculation, the relevant salary amount is the maximum of R17,712 per month, per employee.

Therefore:
o If an employee’s salary is more than the maximum threshold amount of R17,712 – for example, R20,000 – the employee would not receive a percentage of R20,000, but would receive 38% of the threshold amount of R17,712. The maximum amount of the C-19 TERS monthly payment will therefore be the amount of R6,730.

o If an employee’s salary is less than the threshold amount, e.g. R15,000, the employee would receive a percentage of her/his salary of R15,000. The exact percentage that s/he would receive, will be determined in accordance with the UIF calculator. The calculator is soon to be found on the UIF website, and we will update this note when it is.

• The minimum amount of the benefit is R3,500 regardless of the minimum wage as prescribed by the applicable sectoral determination / collective agreement.

• Employers may supplement these benefits, but employees may not get their full salary PLUS the benefit. The maximum that an employee may accordingly receive (from the UIF and their employer) is 100% of their salary.

WHAT IF THE EMPLOYER PAID THE EMPLOYEE? CAN THE EMPLOYER STILL CLAIM THE BENEFIT?
• Yes. The employer may claim the benefit and may retain the value of the benefit already paid to the
employee.

• In order to avoid disputes, it is recommended that the employee’s payslip reflects “TERS Benefit” (in the event that the employee is paid the value of the benefit) or “Includes TERS Benefit” (if the employee is paid an amount higher than the TERS benefit).

WHO WILL PAY THE BENEFIT?
• If the employer has concluded a Memorandum of Agreement with the UIF, or if the employer has
accepted the UIF’s standard terms and conditions, the value of the benefit in respect of the employer’s
employees will be paid to the employer. The employer must then pay over the benefit to the employees concerned (except where they have already been paid) within two days (see below).

• If the employer is a member of a bargaining council that has concluded a Memorandum of Agreement with the UIF, the UIF will pay the amount to the bargaining council, and the bargaining council will administer the payments to the employees.

• Employees will therefore not be paid by the UIF directly, but by their employer or the applicable
bargaining council. The only exception to this is where an employer employs fewer than 10 employees.

• The UIF will first verify the supporting documents submitted by the employer and, within 10 business days of the employer submitting all of the required documents and information, will deposit the funds into the employer’s business account.

• Employers must pay their employees the benefit within 2 days of receiving payment from the UIF. If the employer has already paid their employees part or all of the benefit amount, the employer can recover those amounts from the funds deposited by the UIF and pay the balance – if applicable – to the employees within 2 days. Employers must submit proof of payment to the UIF within 5 days of the payment by the UIF and return any funds not used (including interest) to the UIF within 10 days of its business operations recommencing.

WHAT MUST THE EMPLOYER DO TO CLAIM?
• The employer must apply by reporting the total or partial closure to covid19ters@labour.gov.za.

• The employer will receive an automatic response outlining the application process and the documents and information that is required.

• These documents would include:
o A letter of authority from the employer;
o The signed memorandum of agreement, or electronic acceptance of the standard terms;
o The UIF’s template which includes details of the employer, the period of closure, the list of
employees and their dates of employment and ID numbers, the remuneration received by the
employees;
o Proof of remuneration to employees for the previous 3 months;
o Confirmation of employer bank account.

WILL THE BENEFIT BE PAID IN ONE LUMPS SUM?
• The UIF will pay benefit funds in relation to three separate time periods: first for the period of temporary closure for 30 days from the date of lockdown; second for any period of temporary closure during the following 30 days; and third, for any period of temporary closure during the balance of the Memorandum of Agreement. The Agreement is in force for three months from the date of confirmation by the UIF that it accepts the employer’s Covid-19 TERS application.

WHAT ABOUT EMPLOYERS WHO EMPLOY FEWER THAN 10 EMPLOYEES?
• Employers with FEWER than 10 employees must submit the individual bank account details of each of the employees to the UIF. The UIF will pay these employees directly.

WHAT ARE THE EMPLOYER’S ACCOUNTING OBLIGATIONS?
• Employers must keep all their accounting records relating to the Memorandum of Agreement and the COVID-19 benefit for 5 years and keep them separate from accounting records relating to its business. This will enable them to be identified on a standalone basis from the business-related accounting records.

• Employers must keep a proper audit trail of the UIF funds received and benefits paid to employees.

• Employers may not withdraw the funds paid by the UIF or draw any cheques from the funds.

• The UIF may appoint an auditor or investigator to audit the employer’s implementation of the
Memorandum of Agreement.

IS THE INFORMATION SUBMITTED TO THE UIF CONFIDENTIAL?
• Yes, the information submitted by the employer and employees must be kept confidential, unless it
needs to be disclosed to a third party in order for the Memorandum of Agreement to be implemented.

WHAT HAPPENS IF THERE IS A DISPUTE?
• The first step is for senior officials of the UIF and the employer to meet to attempt to resolve the dispute amicably.

• If that doesn’t resolve the dispute, either of the parties may refer the dispute to the Arbitration
Foundation of South Africa, which arbitration will include the right of appeal.

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