We have been bombarded from firms large and small, across the country, as to whether they need to pay their staff when there is a black-out. The question is obviously loaded and clearly the desired answer is not always forthcoming.

The electrical outages have created havoc in the employment arena. Obviously the losses incurred by small and large businesses will be documented in the future but these losses in fact are compounded by the ongoing salary and wage bills for unproductive workers. The Labour Law has not had to deal with events of this nature and innovative Trade Unions and Employers are striking agreements in order to alleviate some of the losses incurred by both the workers and management. These agreements have been innovative in the sense that they are trying to ensure that management have a minimum payment to make as workers are not expected to be at the workplace without payment. Agreements struck are recorded in writing and signed by the parties. Invariably these agreements are entered into between management and unions and not individual workers but there is nothing stopping small businesses meeting with their staff on a one to one basis and trying to fashion agreements covering outages. Many of these agreements put minimum times that the workers would have to be paid if they did report for duty and these agreements ensure that workers are able to leave the premises if the outages expect to be in excess of 2 hours.

Obviously the management of Eskom would be well advised to ensure that communication of future outages is properly structured. A clear example of this would be a factory being advised that a particular day would affect them and they could advise their staff not to come in on that day and not incur the travelling expenses and wage bill. The inability of Eskom at this stage to properly structure their own administration has led to a lot of heartache and greater losses than is absolutely necessary.

There appears to be a rumour amongst small business owners that if their staff are unable to perform their duties because of power outages then they need not be paid. This is wrong and in fact is criminal. Staff who are present at work are entitled to be paid regardless of whether the electricity is on or off. There are certain Bargaining Councils which have structures within their agreements that allow management to give one shift notice of the fact that they will not need their workers for the next shift. However, if this agreement is not in force then an agreement between management and workers should be entered into and reduced to writing and signed by both parties.

There are various types of collective agreements and although the Labour Relations Act does not distinguish between different types of agreements, the agreements are obviously different in accordance with the circumstances they wish to govern. In essence an agreement governing the down time because of electrical outages would obviously refer to wages and conditions of employment and would refer to a particular period of time. These agreements are very different to recognition agreements between employers and Trade Unions and are in fact known as substantive agreements because they deal with terms and conditions of employment such as salaries during a particular period. It is recommended that all employers get together with their staff whether they employ one person or a thousand. They need to discuss and finalise an agreement which governs their particular set of circumstances when they are faced with a power cut. In order to avoid possible Dismissals for Operational Requirements the staff must be able to take part in a process where they can structure the staffing requirements over this power shortage period to ensure that everyone is able to have a fair approach to the resolution of conflicting needs and wants.

The parties can agree after negotiations that a shift system would be introduced allowing staff to go off shift in the electrical blackout. These agreements can have an expiry date on them so that the parties can come back to the table to negotiate variations, changes and new agreements. Obviously if a Trade Union is active at the workplace the first port of call would be to engage with the shop stewards who would ensure that union organisers are brought into the discussions. Should a union sign a collective agreement with management then all the members of that union would be bound by that agreement.

The agreement struck should contain clauses to ensure that if there is a dispute in terms of the agreement or a dispute with regard to the interpretation of the agreement then that would be approached on a structural basis. Any disagreement would be referred to Arbitration either privately or through the Commission for Conciliation Mediation and Arbitration and structured dispute resolution clause within the agreement would have certain time limits attached to it. It is furthermore recommended that agreements of this nature would outlaw industrial action such as strikes and lock outs and resolutions would be governed by adjudication by a third party. To have industrial turmoil coupled with the electrical outages would be counter productive.

Contact Bernard Reisner 021 423 3959 or e-mail bernard@capelabour.co.za