Dark days for workers hit by load shedding

Durban - Businesses may not legally arbitrarily dock workers’ wages for lost productivity during Eskom’s load shedding, labour experts have warned after a KwaZulu-Natal factory worker complained that his employer has engaged in the practice for several years.

Trade unions also warned that load shedding and high electricity prices would lead to more retrenchments.

The factory worker, who spoke to The Mercury on condition of anonymity for fear of being victimised, said his employer deducted load shedding downtime from staff wages.

He said 10 hours of load shedding a week equated to an almost 25% drop in wages.

“It’s very bad. Everyone is afraid to complain because once workers complain they will be treated badly. There is no union in the factory. They don’t allow a union. If you want to become a union member you get victimised,” he said.

He understood that the employer had also lost productivity but the loss of wages made it difficult to budget, he said.

Norton Rose Fulbright labour law expert Jason Whyte said workers who provided their services were entitled to wages, regardless of whether work was available in the factory.

He said employers could not unilaterally vary the terms of an employment contract.

“In certain limited circumstances, an employer might be able to contend that due to force majeure (an “act of God”) it is unable to perform its obligations under the contract of employment.

“This may allow the employer to reduce remuneration for the period of time that load shedding endures. This is, however, an exceptional defence and is highly dependent on the facts of any case,” he said.

Cox Yeats head of labour law Alex Rocher said that in the absence of an express agreement or collective agreement - between a trade union and an employer - an employer could not lawfully deduct wages for time not worked due to load shedding.

“The common law provides that when an employee arrives at work and tenders his or her services with a view to discharge his or her obligation under the employment contract, the employer is obliged to pay the employee notwithstanding the fact that the employee is not able to work due to a power cut.

“The Basic Conditions of Employment Act supports the common law position,” he said.

He said some collective agreements made provision for the use of “short-time” whereby usually only four hours’ wages are paid to employees if employees were sent home due to load shedding.

“Some bargaining councils or forums had the foresight after 2008 when the phenomenon of load shedding was introduced to incorporate clauses in their collective agreements regulating the payment of wages during load shedding,” he said.

“Employees and employers will need to reach a compromise over the continued load shedding debacle in the form of collective agreements,” Rocher said.

National Union of Metal Workers spokesperson Phakamile Hlubi-Majola said businesses, including ArcelorMittal, Glencore and Samancor, had cited Eskom’s unreliable electricity supply and high prices among their reasons for issuing retrenchment notices.

“Load shedding is having a far reaching impact on the economy and if factories and smelters are unable to get supply it will result in retrenchments,” she said.