What is short time?
Short time is a temporary reduction in the number of hours or days employees are required to work due to operational requirements, such as a decrease in workload, financial constraints, or other economic factors.
What legislation and agreements govern short time in South Africa?
Short time is governed by the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), and relevant collective agreements, such as those negotiated by the Hairdressing, Cosmetology, Beauty and Skincare Industry Bargaining Council (HCSBC).
Can an employer unilaterally implement short time?
No, an employer cannot unilaterally impose short time. According to Section 189 of the LRA, employers must engage in a consultation process with employees or their representatives before implementing short time. The HCSBC collective agreement, specifically Clause 20, also requires consultation and agreement with the trade unions before short time can be implemented.
How should an employer communicate the implementation of short time?
The employer must provide clear and timely communication to employees regarding the need for short time, including the reasons, the expected duration, and the terms of the reduction in working hours. This is in line with the procedural fairness required under Section 189(3) of the LRA and Clause 20 of the HCSBC collective agreement.
What are the employer’s obligations under the BCEA and HCSBC collective agreement when implementing short time?
Under the BCEA, particularly Sections 9 and 10, employers must ensure that the implementation of short time complies with the agreed terms and conditions of employment.
The HCSBC collective agreement, specifically Clause 20, outlines the following obligations:
Notification: Employers must notify employees in writing and provide at least one week’s notice (Clause 20.1).
Payment in Lieu of Notice: Employees not given the specified notice are entitled to payment of full wages in lieu of notice (Clause 20.2).
Annual Leave: Annual leave shall accrue at the full rate of entitlement during any period that an employee is required to work short time (Clause 20.3).
Minimum Remuneration: Employees working less than 4 hours per day must be remunerated for at least 4 hours per day as per the National Minimum Wage Act of 2018.
Are employees entitled to be paid during short time?
Employees are generally entitled to be paid for the hours they actually work during short time. Payment should be in line with the agreed wage rate or the minimum wage as per Section 35 of the BCEA. The HCSBC collective agreement, specifically Clause 20, provides specific guidelines on remuneration during periods of short time.
Can employees claim Unemployment Insurance Fund (UIF) benefits during short time?
Yes, employees may be eligible to claim UIF benefits for the loss of income resulting from short time. Employers should provide the necessary documentation to support the claim, as outlined under the Unemployment Insurance Act, which complements the BCEA.
What is the role of trade unions in the implementation of short time?
Trade unions play a crucial role in negotiating and agreeing on the terms of short time with the employer. Section 14 of the LRA provides trade unions with organisational rights, which include the right to represent employees in consultations and negotiations related to short time. The HCSBC collective agreement, particularly Clause 20, further empowers trade unions to ensure fair treatment of employees during these negotiations.
How long can short time last?
The duration of short time should be clearly defined and agreed upon during consultations. The LRA does not specify a maximum duration, but it should be a temporary measure. The HCSBC collective agreement, specifically Clause 20, may contain specific provisions regarding the maximum duration of short time and the process for any necessary extensions.
Can an employee refuse to work short time?
If short time has been properly negotiated and agreed upon, employees are generally expected to comply with the arrangement. Refusal to work short time could be considered a breach of contract unless there are justifiable reasons. According to Section 187(1)(g) of the LRA, dismissal for refusing to accept changes to terms and conditions of employment (including short time) can be considered automatically unfair if it is not justifiable.
What steps should an employer take if short time is no longer necessary?
If short time is no longer necessary, the employer should communicate this to employees and restore normal working hours as soon as possible. Any changes should be documented and agreed upon with the employees or their representatives, following the procedural requirements of Section 189A of the LRA if applicable, and Clause 20 of the HCSBC collective agreement.
What are the potential consequences for employers who improperly implement short time?
Improper implementation of short time can result in disputes, grievances, and potential legal action. Employers may face penalties for non-compliance with the LRA and BCEA. This includes possible claims for unfair labour practices under Section 186(2) of the LRA, or breaches of the BCEA which could lead to fines or orders for compensation. Non-compliance with the HCSBC collective agreement, particularly Clause 20, can also result in grievances and arbitration procedures through the bargaining council.
Where can employees and employers seek advice on short time?
Employees and employers can seek advice from the Department of Labour, legal professionals specialising in labour law (EOHCB), or their trade unions. The Commission for Conciliation, Mediation, and Arbitration (CCMA) is also a resource for resolving disputes related to short time and other labour issues. Additionally, parties can refer to the HCSBC for guidance and dispute resolution mechanisms specific to the sector.
