The Department of Labour is causing confusion over its statement that employers should not force employees to take their annual leave during the Covid-19 lockdown period.
Even though the department recognises employers are within their rights to request employees to take annual leave during this time, it urges employers to rather use “the financial assistance that the department has placed at their disposal through the Covid-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees."
This is according to a statement issued last week by the Department of Employment and Labour’s chief director of labour relations, Thembinkosi Mkalipi.
The National Employers Association of SA (Neasa) says such statements are causing confusion. “South Africa’s sources of law are the common law, acts of parliament, secondary legislation and case law. Speeches, press releases and statements do not create laws,” says Neasa chief executive Gerhard Papenfus.
What the law says
Section 20(10) of the Basic Conditions of Employment Act (BCEA) states that:
Annual leave must be taken:
(a) in accordance with an agreement between the employer and employee; or
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section.
“Therefore, annual leave must be taken by agreement between the employer and employee, and failing such an agreement, at the employer's discretion. The current Covid-19 lockdown is no different to an annual shutdown in December,” says Papenfus.
“Therefore, until one of the legitimate sources of law is amended, employers can require their employees to take their annual leave now, during this lockdown, and be paid.”
Employers who have an annual shutdown in December may even, if practical, exchange this lockdown closure for the December shutdown and require employees to work during December.
Neasa says the other alternative available to employers who cannot place employees on leave or continue paying them, is to lay them off temporarily as a result of the lockdown and to claim UIF benefits for the employees in terms of the expanded Covid 19-TERS benefit.
Employer/Employee Relief Scheme (TERS)
The scheme is aimed at assisting employees where employers are unable to pay them during the lockdown.
The basic criteria, according to the regulations, are as follows: