Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

Bargaining Council for the Building Industry, Cape of Good Hope

Extension to Non-parties of the Main Consolidated Collective Agreement

58. Codes of Good Practice

Annexure 2: Code of Good Practice: Temporary Lay-Off
Purchase cart Previous page Return to chapter overview Next page

 

58. CODES OF GOOD PRACTICE

 

ANNEXURE 2: CODE OF GOOD PRACTICE: TEMPORARY LAY-OFF

 

A.Purpose

 

This Code of Good Practice is intended to provide practical guidance to employers on how to apply the provisions of the Collective Agreement (CA) in respect of clause 40.

 

Provisions in the CA providing for the temporary lay-off of employees, recognises that there are circumstances outside of the employer's control that result in an unplanned work stoppage.

 

 

B.Interpretation

 

This Code needs to be read in conjunction with the CA.

 

C.WhatsApp as Written Notice

 

The availability of electronic means of communication makes it easier for employers to contact employees. In the Western Cape region, WhatsApp is the most common means of communication. While the CA prescribes that communication from the employer informing the employees of a work stoppage must be in writing, WhatsApp will also be acceptable as 'written communication'. The employer must however ensure that he follows up with a telephone call if he sees that a WhatsApp message is reflecting as unread by the employee.

 

The intent of this requirement is to ensure that employees receive adequate notice and that an employee is not disadvantaged because he does not have the data available to receive the WhatsApp communication.

 

D.Communication Timeline

 

In the new CA, the payment to employees who have already signed in for work when the work stoppage occurs, increases to three (3) hours. This amendment recognises the inconvenience to employees and the time and income lost.

 

E.Number of continuous lay-off days and number of events

 

The number of continuous days for a layoff has been increased from 20 to 30.

 

Where the reason for the layoff relates to a shortage of material or a shortage of work, the number of lay off days permitted in a benefit year is also increased to 40, with no limit on the number of layoff events. This recognises the unpredictability of the circumstances that give rise to work stoppages.

 

F.Payment for Lay-off

 

There are a number of scenarios that may occur when a lay-off is confirmed by the employer. To ensure fairness to both the employer and the employee, the payment arrangements for lay-offs are outlined below:

 

Scenario 1: Communications received, and the employee has not come to work

 

An employer can confirm that the employee has received the notice of layoff and as a result, the employee has not arrived for work.

 

Payment for Scenario 1: No wage, no benefit.

 

Scenario 2: Communications not received or not received timeously

 

An employee has not received the communications from the employer, or the employer has communicated too late and as a result, the employee has arrived for work. In this case, the employee must be paid.

 

Payment for Scenario 2:  Three (3) hours short notice pay of wages only (no benefits).

 

Scenario 3: Employee on site/working when lay-off occurs

 

An employee who is on site or working and then put on a lay-off, will have been working for a specific number of hours.

 

Payment for Scenario 3: The employee must be paid wages and benefits for the hours worked as well as for the three (3) hours' short notice pay which also includes benefits.

 

(a)Where the total hours do not equate to a full day: The employer can negotiate with employees to make up the lost hours.

 

For example: If the lay-off is confirmed at 10h00 and the normal shift ends at 17h00, the employer needs to compensate the employee for the full day despite the total hours making up only five (5) hours. Where a normal working day is eight (8) hours, the employer can negotiate with the employee to make up for the three (3) hours lost.

 

(b)        Where the total hours exceed a full day, the employer only needs to pay for the hours that are short.

 

For example: If the lay-off is confirmed at 16h00 and the normal shift ends at 17h00, the employer only needs to compensate the employee for the one (1) hour that is short.

 

G.Provisions as amended from time to time

 

In terms of the CA, an employer may temporarily lay off an employee under specific circumstances. The table below outlines the changes that were made to this provision since the previous CA.

 

Previous CA - Clause 40

New CA - Clause 40 (as amended)
(1)An employer shall be entitled to lay off an employee temporarily on account of—
(a)inclement weather, or
(b)a shortage of materials, due to circumstances beyond the employer's control,or
(c)on account of a temporary shortage of work, or
(d)loadshedding - where work cannot be performed without the use of electricity, or
(e)civil and/or political unrest, where this unrest action prevents the normal work activities from continuing on a specific site.

No change to clause 40(1).
(2)In all instances where this clause is to be implemented, the following process is to be followed by the employer—
(a)written notice of the lay-off shall be given to the employee before completion of the normal working shift preceding the day on which the lay-off is to be implemented;
(b)the written notice must include the reason for the lay-off and the period of the lay-off;
(c)where it is not possible to comply with sub clause (a) above, the employer shall pay the employee the equivalent of two hours' wages for short notice of the lay-off;
(d)in the case of loadshedding, employers and employees are to negotiate alternative working hours around loadshedding hours to catch up with the work lost due to loadshedding. Where agreement is not reached or the loadshedding hours are of such a nature that alternative work hours are not practical, the employee can be laid off for the day in question.

No changes to clause 40(2)(a), (b) and (d).

 

Change to clause 40(2)(c): Where it is not possible to comply with sub clause (a) above and the employee has reported to work, the employer shall pay the employee the equivalent of two three (3) hours' wages for short notice of the lay-off;
(3)The employer shall not be liable to pay employee wages and benefits except as specified in sub clause (2)(c) above during the lay-off.

 

(a)Where the lay-off period includes a public holiday, the employer will not be compelled to remunerate the employee for the public holiday.

 

b)An employer may not apply the lay-off clause to avoid complying with the provisions of the Public Holidays Act (Act No 36 of1994).

No change to clause 40(3).
(4)An employer may lay an employee off in terms of sub clause (1) above for a continuous period not exceeding 20 (twenty) working days and if at the end of such period the employer wishes to extend the lay-off period for a further 10 (ten) working days the employee shall first be given the option of being retrenched in accordance with the procedure laid down in clause 41.

Change to clause 40(4): An employer may lay an employee off in terms of sub clause (1) above for a continuous period not exceeding thirty (30) working days and if at the end of such period the employer wishes to extend this continuous lay-off period beyond the above time period the employee shall first be given the option of being retrenched in accordance with the procedure in clause 41.
(5)The number of lay-offs permitted in terms of sub clause (2) above is limited to 2 (two) per benefit year (1 November to 31 October). Thereafter the employer must apply for exemption in terms of Clause 57 to implement further lay-offs during this period.

Change to clause 40(5): The number of lay-off days permitted within a benefit year (1 November to 31 October), is limited to forty (40) days. Thereafter the employer must apply for exemption in terms of Clause 57 to implement further lay-offs during this period.

 

(a)This sub clause does not apply to lay-offs for the following reasons—
(i)inclement weather, or
(ii)loadshedding, or
(iii)civil and/or political unrest, where this unrest action prevents the normal work activities from continuing on a specific site.
(6)Where it can be established that the employer has not complied with the provisions of this clause, the employer will be held liable to remunerate the employee for the period that the employee was laid off.

No change to clause 40(6).
(7)Where it can be established that the employer has used the lay-off clause contrary to clause 39 and simply used a lay-off as a disciplinary measure without following the applicable disciplinary or incapacity procedures, the employer will be held liable to remunerate the employee for the period that the employee was laid off.

No change to clause 40(7).

 

G.Consulting in Good Faith

 

This Code assumes the continuation of the good faith practice of consulting with employees and where appropriate, rotating lay-off schedules among employees.