Many large South African employers, including government itself, have already taken steps to implement salary cuts in the last week, with … In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. For more information, please contact Gillian Lumb at emailProtector.addCloakedMailto("ep_a28c8b43", 1); Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com, 28 January 2021 (09:00 - 16:00) (Fully Booked), 29 January 2021 (09:00 - 16:00) (Fully Booked), COVID-19 Workplace Compliance Health, Safety and Claims Management Course, 03 & 04 February 2021 (08:30 - 13:00) (Fully Booked), POPIA: Protection of Personal Information Act, The OHS Act and the Responsibilities of Management, Health and Safety Representative and Committee Training Course, The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer, 2020 has given rise to many challenges for employers. Unplanned load shedding is, for example, where Eskom cannot with complete certainty inform the public of exactly when load shedding will be implemented (what Eskom does rather, is inform us of the likelihood of when load shedding may be implemented). The tax season, when people submit their tax return forms, is from July to November. The president said that this money will be donated to the established Solidarity Fund. “We are only at the beginning of a monumental struggle,” said Ramaphosa. Labor law in South Africa: wage payments. Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. He added that risk-adjusted measures will be assessed to ensure certain businesses can return to operation. When the pay cut is a response to some protected activity. If all men get a pay cut, but no women, that's illegal. If a South African company wants to employ a foreign national, they’ll need to secure a work permit. Employers and employees should know their rights and duties during these periods of interrupted power supply. In South Africa, the Labour Relations Act (LRA) clearly spells out the retrenchment procedure that must be adhered to correctly and in good faith by the employer. Labour law protects workers against exploitation by employers and non-payment of wages. Labour Guide. President Cyril Ramaphosa has announced that the deputy president, members of cabinet, and he, himself will all take a pay cut as part of a contribution to South Africa… My boss want to give me a pay cut of 40% is this legal - Answered by a verified Lawyer. Employers may also have to be flexible – perhaps using the load shedding times for training or staff meetings. POPI distinguishes between the collection, storage and processing of personal information and special person information. The South African law of sale is an area of the legal system in that country that describes rules applicable to a contract of sale (or, to be more specific, purchase and sale, or emptio venditio), generally described as a contract whereby one person agrees to deliver to another the free possession of a thing in return for a price in money. 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In terms of section 7 of the Agreement, an employer may implement “short time” (i.e. Pay cuts can't be a retroactive surprise. Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. However, employers and employees can agree to changes in working hours or shift structures in order to reduce the financial losses caused by load shedding. South Africa is a State founded on the principles of a constitutional democracy. You can take this to the CCMA as an unfair labour practice. Where the circumstances are unforeseen or unplanned (such as unplanned load shedding) the employer may: Elect to send the employees home, provided they shall receive not less than four hours’ work or pay in lieu thereof; or. Employees are entitled to double pay (section 16 of the BCEA) for Sundays and Public Holidays. The rest should be paid as overtime. While employers may hope for a “, The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. UIF contributions), court order or arbitration award. According to the BCEA, any work performed after normal hours to catch up production will be regarded as overtime and will be subject to additional, overtime pay. Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. Special personal information includes e.g. Therefore, where an employee offers to do the work and the employer does not want the employee to work or cannot provide the employee with work (due to load shedding or any other reason), the employer is still obliged to pay the employee his/her wages or salaries. Labor laws, however, will remain the same. JOHANNESBURG. According to the South African labour law resignation notice period rules, the employer and employee may change these terms. The unions are unlikely to accept this and it may be tantamount to declaring war. 2020 has given rise to many challenges for employers. In the absence thereof, the employer will need to prepare and secure a further consent from the employee. Many employers are under the impression that when employees are unable to work due to load shedding the ‘no work, no pay’ principle applies. The Constitution is the supreme law of the land, binding on all organs of State at all levels of government. This will see healthcare efforts ramped up, along with financial packages for local businesses. Read Expatica’s guide for more information on how to get a South African work visa. In fact, there are two legal avenues that employers can pursue in order to persuade their employees to accept a change in pay or working conditions, Marinus says. The announcement comes after  Ramaphosa extended South Africa’s national lockdown by another two weeks, beyond the original 21 days. Copyright © 2021. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees. It is clear that load shedding will be with us for some time to come. Another problem for employers during load shedding periods is dealing with what might otherwise be considered to be misconduct by their employees, such as late coming. The employee’s pay and/or responsibilities are reduced The employee’s subordinates are taken away The employee is required to report to someone who used to report to him/her. Like many other countries worldwide, South Africa went into a 21-day national lockdown on 27 March, in an effort to help slow down the spread of the Coronavirus (COVID-19). For more information, please contact Jacques van Wyk at emailProtector.addCloakedMailto("ep_b2c4cf98", 1); or Michiel Heyns at emailProtector.addCloakedMailto("ep_bf882532", 1); Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com, POPI and consent - don’t get caught in your own net, By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr. The official salaries are outlined below. Expressly instruct employees sent home to return, where the employer believes work can be resumed, provided the employees shall receive not less than four hours’ work or pay in lieu thereof. In the circumstances it is advisable for employees’ written consent to be secured. The recent announcement of the implementation of load shedding throughout the country may have severe implications for business and labour relations. Notably, the Agreement provides that “[w]here the employer does not implement short time in response to a planned or foreseen load shedding and the employees report for work but are sent home by the employer, they will be entitled to 8 hours payment in respect of such day.”. But, an employer may not unilaterally implement new working hours. Planned load shedding is load shedding that occurs at a pre-determined and publicised time and date. In, Both special and general personal information may be processed lawfully if the processing is necessary for the “, A determination is made as to whether there is a “. Remuneration cuts and deductions The Basic Conditions of Employment Act (BCEA) prohibits the deduction of an employee’s remuneration without the written consent of that employee. An employer may implement short time, expecting load shedding to commence on a specific day and if the load shedding does not go ahead, the employer is left with minimal staff capacity. It blamed the fact that many South Africans are indebted on the lack of economic reforms to create jobs, tackle poverty and ease inequality.“Instead, an Act is signed into law that puts South African’s savings, investment and access to credit at risk. All Rights Reserved. Our common and labour laws are clear – if the employer expects the employees to be at work at a specific time and on a specific day and the employees comply with these requirements, the employer is obliged to pay them for that time. South Africa– Blue Sky Publications (Pty) Ltd T/A TheSouthAfrican Number: 2005/028472/07. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. Taxation may involve payments to a minimum of two different levels of government: central government through SARS or to local government. Find out all about the labour laws concerning Overtime Working Hours in South Africa including overtime compensation, overtime pay policy, salary overtime law, working extra hours Complete our Salary Survey and Win a Wage! A better strategy available to some employers is to rely on agreed procedures that apply to interruptions of production, such as in the metal and engineering industries. What South Africa’s law says and how to fix it. Where necessary provisions should also be made specifically for the processing of special personal information. It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. A 33% reduction works out to R134,000 a month (a cut of R66,000) – meaning for the three months, each minister will be contributing R198,000 to the fund. The current international and South African climate is causing a large number of companies to experience severe financial difficulties. Our common and labour laws are clear – if the employer expects the employees to be at work at a specific time and on a specific day and the employees comply with these requirements, the employer is obliged to pay them for that time. This is not the case. If employees do not agree to changes in working hours, shift structures, pay or any similar measure designed to relieve the burden on employers during load shedding, the employer may be forced to implement retrenchment procedures in terms of sections 189 or 189A of the Labour Relations Act 66 of 1995 (as amended) (“LRA”). Written consent is not expressly required. Customer orders are waning, budgets are being cut, profits are dwindling, cash flows are tightening and it is becoming increasingly difficult to pay creditors and staff salaries. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. Many established South African companies have announced measures to prevent job losses as the coronavirus pandemic – and the national lockdown – strangles business operations. The Basic Conditions of Employment Act regulates pay in South Africa. Usually, lawful pay cuts occur in two circumstances – when both employer and employee agree on it, or when the employer enforces it by law. If they do not, these changes cannot be implemented unilaterally. This is regardless of whether the employees were able to perform their duties or not. Ramaphosa said that these members of the executive will all take a 33% pay cut over the next three months. Residents who pay taxes in South Africa have to fill in an annual tax return form and submit it to SARS. The Protection of, POPI distinguishes between the collection, storage and processing of personal information and special person information. When can a deduction be made from my salary? So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. South Africa: Cost-cutting employment alternatives to retrenchment following the extended lockdown. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special, It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. South Africa’s president and his cabinet will take a 33% pay cut for the next three months to contribute to a fund to help the nation cope with the novel coronavirus pandemic. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. When the pay cut is discriminatory. An employer is therefore obliged to perform even when an employee is unable to perform due to circumstances beyond the control of the employer. Unfortunately, most load shedding is unplanned with Eskom only announcing its implementation a few hours before it commences or changing it from Stage 1 to Stage 2 at some point during the load shedding period. “If we end the lockdown too soon, we risk a resurgence of the disease.”. President Cyril Ramaphosa has announced that the deputy president, members of cabinet, and he, himself will all take a pay cut as part of a contribution to South Africa’s fight against the coronavirus. Unfortunately, not all industries have an equivalent of the Agreement. Staff Writer 10 April 2020. ... South Africa Law. A pay cut cannot be enacted without the employee being notified. 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