Split over a year, a minister’s salary works out to just over R200,000 a month. For instance, if you complain that your boss is sexually harassing you, and then your pay is cut, that is called retaliation and it is illegal. In terms of section 7 of the Agreement, an employer may implement “short time” (i.e. The priority for the government is to ensure there is not a massive loss of life, while at the same time not allowing the economy to collapse. It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. 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. By Jacques van Wyk, Director and Michiel Heyns, Senior Associate, Werksmans Attorneys. In the absence thereof, the employer will need to prepare and secure a further consent from the employee. The South African tax year runs from 1 March to 28/29 February. 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. My boss want to give me a pay cut of 40% is this legal - Answered by a verified Lawyer. The president said that this money will be donated to the established Solidarity Fund. 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. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed. In another article, the author9considered South African case law (none of which specifically dealt with the application of s 84 in the circumstances of this case) and came to the conclusion that s 41(4) of the BCEA rewards the employer for offering … 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. reduced working time) “owing to a shortage of work and/or materials and any other justifiable contingencies, including planned load shedding and/or unforeseen contingencies and/or circumstances beyond the control of the employer.”. 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. 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. In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The 1996 Constitution is the successor of the earlier interim Constitution, Act 200 of 1993, which was brought into effect on 27 April 1994, following the first … But, an employer may not unilaterally implement new working hours. 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. Copyright © 2021. 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. “If we end the lockdown too soon, we risk a resurgence of the disease.”. When adjudicating the fairness of the dismissal or the severance pay dispute and provided certain other conditions were met (see s 74(2)(a) to (c) which has since been repealed effective 1 January 2019), the commissioner would hear any dispute regarding statutory money and if finding in favour of the employee included in their arbitration award, a finding that the employer pay … 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. Employers may not deduct money from a worker’s pay unless: The worker agrees in writing to the deduction of a debt The deduction is made in terms of a collective agreement, law (e.g. When can a deduction be made from my salary? 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The official salaries are outlined below. This will see healthcare efforts ramped up, along with financial packages for local businesses. 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. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. The Metal and Engineering Industries Bargaining Council Main Agreement (“the Agreement”) differentiates between planned and unplanned load shedding. An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. Planned load shedding is load shedding that occurs at a pre-determined and publicised time and date. ... South Africa Law. So, for instance, late coming due to load shedding should be managed and employee’s counselled on how to work around the impact of load shedding on travel, traffic and daily life. 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. The South African government is overburdened with a massive wage bill – but it also sits in a position where it cannot fire staff without drawing the ire of the unions. Pay cuts are legal as long as they are not done discriminatorily (i.e., based on the employee’s race, gender, religion, and/or age). an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Written consent is not expressly required. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. 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! Read: South Africa’s coronavirus lockdown extended by 2 weeks. According to the South African labour law resignation notice period rules, the employer and employee may change these terms. 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. In most cases employees must agree to such changes. So, what steps should be followed for cutbacks to be considered fair? For example, where load shedding is planned for the beginning or end of a shift, the times of the shifts could be amended to ensure there is no loss of work time. The notice period South Africa cannot be extended beyond the stated limits, and all notices are issued through a letter of resignation South Africa. 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. How to file your income tax return in South Africa. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee. Ramaphosa said that these members of the executive will all take a 33% pay cut over the next three months. The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. Employers need to ensure that they comply with labour law requirements while at the same time, implementing measures to reduce the negative impact that load shedding has on their businesses. Many established South African companies have announced measures to prevent job losses as the coronavirus pandemic – and the national lockdown – strangles business operations. The recent announcement of the implementation of load shedding throughout the country may have severe implications for business and labour relations. Employers may also have to be flexible – perhaps using the load shedding times for training or staff meetings. Comments section policy: Any attacks on BusinessTech, its journalists, or other readers will result in a ban. Usually, lawful pay cuts occur in two circumstances – when both employer and employee agree on it, or when the employer enforces it by law. Special personal information includes e.g. Of the two, the best-known route is to propose terminating the employment contract for operational reasons, using the procedure in section 189 of the Labour Relations Act. This is regardless of whether the employees were able to perform their duties or not. The tax season, when people submit their tax return forms, is from July to November. South Africa– Blue Sky Publications (Pty) Ltd T/A TheSouthAfrican Number: 2005/028472/07. Many large South African employers, including government itself, have already taken steps to implement salary cuts in the last week, with … 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. It is advisable that employers negotiate a plan to minimise its effect with employees. If a South African company wants to employ a foreign national, they’ll need to secure a work permit. We use cookies to give you the best possible experience on our website. 2020 has given rise to many challenges for employers. Another question that arises during load shedding periods is: how much must employees be paid if they need to work past their normal work hours to make up for the hours lost during the day? A 4-week notice period must not be reduced to less than two weeks. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act. All Rights Reserved. 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. 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”). 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. 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. “We are only at the beginning of a monumental struggle,” said Ramaphosa. Most of the initial lockdown measures will remain in place until the end of April, said the president. 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. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?”. There have been suggestions that civil servants should take a 10% wage cut as part of plans to bail out the economy. Labour law protects workers against exploitation by employers and non-payment of wages. 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). Labour law in South Africa, and more specifically the Basic Conditions of Employment Act, stipulates what “wage” means. The employer would have to follow certain steps and show that due to operational requirements brought about by load shedding (being the technological, structural or similar needs of an employer), the employer needs to retrench a given number of employees. The employees must be able to understand in clear language what they are consenting and the extent of the consent. 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. Pay cuts of 10 or 20%, some for a limited period (typically six months) and some with no time limit, are becoming more commonplace. A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. The current international and South African climate is causing a large number of companies to experience severe financial difficulties. South Africa: Cost-cutting employment alternatives to retrenchment following the extended lockdown. Unfortunately, not all industries have an equivalent of the Agreement. Taxation may involve payments to a minimum of two different levels of government: central government through SARS or to local government. An employer is therefore obliged to perform even when an employee is unable to perform due to circumstances beyond the control of the employer. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. 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. 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. If all men get a pay cut, but no women, that's illegal. 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. Prior to 2001 the South African tax system was "source-based", wherein income is taxed in the country where it originates. In a government gazette published at the end of February, Ramaphosa confirmed that a number of senior officials including the deputy president and ministers would not be receiving an increase this year. The unions are unlikely to accept this and it may be tantamount to declaring war. 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. 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. 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… Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 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. An employer may require employees to start work later than usual and finish later than usual. Labor laws, however, will remain the same. This is not the case. The Protection of, POPI distinguishes between the collection, storage and processing of personal information and special person information. 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). When the pay cut is discriminatory. The Basic Conditions of Employment Act regulates pay in South Africa. 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. Many employers are under the impression that when employees are unable to work due to load shedding the ‘no work, no pay’ principle applies. What South Africa’s law says and how to fix it. In an effort to reduce the losses associated with this cessation of work during load shedding, some employers may wish to treat these stoppages as meal intervals. When the pay cut is a response to some protected activity. 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