Flexible working arrangements

Flexible Working Arrangements

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From the outset of the Covid-19 pandemic and the implementation of hard lockdown, ‘business as usual’ became an impossibility for many employers in various industries. The crisis drove employers to find innovative ways to keep businesses running and to preserve jobs. This climate led to fundamental changes in the world of work and traditional business models. The need to adapt to a constantly and rapidly changing environment necessitated a change in our approach to working arrangements. Our human resource consulting solutions in South Africa can help you effectively navigate the “new normal”.

The Covid-19 pandemic is all but forgotten and life has mostly returned to normal, but employers are still faced with the challenges of changing working environments, most recently as a result of rampant load-shedding interfering with businesses’ ability to run their operations.

Loadshedding has been an all but permanent daily fixture since the beginning of the year. While some employers can respond to the challenge by converting to solar power, generators, or alternative power sources, this is not an option open to all employers, and some stop-gap measures may not be sustainable long term as increasing diesel prices and inflation makes running on generators impractical for protracted periods. Here again, businesses must find ways to adjust working models to work around the impact of load shedding, maximising productivity while preserving jobs and protecting workers’ rights. Our human resource consulting solutions in South Africa can guide your approach to ensure mutually beneficial arrangements.

Employers and their employees should collaborate to find ways to keep businesses running. This may involve agreeing to flexible working arrangements to counteract the impact of load-shedding. Such agreements may be made on an individual basis by amending terms and conditions of the employment contract, or collectively through concluding collective agreements with registered trade unions or within bargaining councils.

Labour legislation itself allows for some flexibility in terms of working arrangements, such as certain provisions contained in the Basic Conditions of Employment Act. If you need a refresher, ask about our human resource consulting solutions in South Africa.

A compressed work week (s11 of the BCEA) allows for employees to work up to twelve hours a day without receiving overtime pay. This provision limits employees to a maximum of 45 ordinary hours and 10 hours overtime in any week, on a maximum of five days a week. Such an arrangement would allow for employees to catch up on lost time caused by load-shedding in any given day without causing an additional financial burden on the employer.

Averaging of hours of work (s12) allows for the ordinary hours of work and overtime to be averaged over a period of up to four months in terms of a collective agreement. This again saves an employer from paying overtime rates.

Many other arrangements may be agreed to between employers and employees, provided the agreements stay in line with the provisions of the BCEA. Our human resource consulting solutions in South Africa can facilitate such arrangements.

Employers may consider having employees take their meal intervals to coincide with load-shedding. However, an employer may not prevent an employee from taking lunch after five hours of continuous work. Where load-shedding is to take place later than these five hours, this would not be an option. Employees must also be paid for any portion of a meal interval in excess of 75 minutes unless the employee lives on the employer’s premises.

Employers and employees may agree to schedule working hours to avoid load-shedding. This may involve altering the starting and finishing time of a shift to maximise operational hours. In such circumstances, employers must take care not to exceed the maximum allowable working hours in a day, and they must respect minimum daily and weekly rest periods. An employee must have a break of at least twelve consecutive hours between shifts, and a weekly rest period of at least 36 consecutive hours.

Employees may be requested to work over weekends to make up for lost time in the week, but this may only be done by agreement, and barring an agreement to the contrary, any hours worked outside of an employee’s normal contractual hours, should be paid at overtime rates. Sundays are also subject to increased hourly rates.

Other than altering the working arrangements in terms of working hours or days, employers could consider using down time for activities that do not require power. This may involve holding staff meetings, conducting training, upskilling staff, or engaging in other activities that may benefit the business. A care should be had not to fundamentally alter an employee’s core functions, save by agreement between the parties.

Any changes to terms and conditions of employment must be made by agreement between the parties, be it the individual employees themselves, or in terms of a collective agreement with a registered trade union.

Where employers are unable to gain such consent, they may have to embark on a formal process to restructure the business based on operational requirements in terms of section 189 of the Labour Relations Act. Another somewhat less practical solution would be to embark on an offensive lockout to force employees into accepting the employer’s demands. In this case, however, the employer may not rely on replacement labour for the duration of the lockout, and operations are likely to come to a standstill until the matter is resolved. If you need more information, contact our human resource consulting solutions in South Africa.

Any decisions to make changes to working arrangements should be carefully considered with due regard to relevant codes of good practice and legislation. Always make sure that a working model complies with regulations, and make sure that the correct process is followed to implement change.

For more information on human resource consulting solutions in South Africa, please contact the LabourNet Helpdesk at 0861 LABNET (0861 522638).

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