ANNUAL LEAVE ENTITLEMENT – KNOWLEDGE IS POWER
Last week we posted the first of three articles, https://www.misa.org.za/no-work-no-pay-no-accrual-of-leaveor-not/, with regards to ‘Annual Leave’.
Today I want to concentrate on your entitlement to annual leave in terms of legislation. It seems as if a number of employees, MISA members included, do not understand their entitlement to annual leave. For instance, when do you qualify for annual leave; when must and when can you take annual leave; how to apply for annual leave; how to show that your annual leave was approved.
In the retail motor industry, the MIBCO Main Collective Agreement (Agreement), by default regulates your entitlement to annual leave. Most Contracts of Employment also refers to the Agreement on the provisions of annual leave. A third source of legislation that might regulate your annual leave entitlement, should the Agreement have lapsed and your Contract of Employment does not stipulate your entitlement to annual leave, is the Basic Conditions of Employment Act 75 of 1997 (BCEA).
Let’s unpack annual leave.
The Agreement defines ‘leave cycle’ in clause 5.1 as the period during which an employee earns three or four weeks’ leave on full pay, on completion of continuous employment for 12 months with the same employer.
To simplify, after one year’s employment with the same employer you are entitled to 3 weeks’ paid leave. The four weeks’ paid leave entitlement upon being employed for 8 years with the same employer. As from the end of the 9th year, and every year thereafter, you will be entitled to 4 weeks’ paid annual leave.
A leave cycle is therefore a period of 12 months from the date of employment, every new leave cycle beginning on the employment anniversary date. In terms of this provision you are entitled to annual leave on full pay!
In terms of the Agreement, your three- or four weeks’ leave may, if your employer is in agreement, be taken ad-hoc and not continuously.
The BCEA’s provisions are similar, except for the following two aspects. The first is that the BCEA does not refer to three weeks, but 21 consecutive days, which is in fact three weeks, including weekends. The second is that the BCEA does not provide for the more beneficial provision of four weeks’ paid leave after completion of your 9th year of employment with the same employer.
Commencing Annual Leave
Now this is sometimes a bone of contention!
Firstly, the Agreement provides that you may take your annual leave two months before it is due, but no later than four months after your annual leave being due. The Agreement even goes as far as to provide that you may take your annual leave six months after being due, but only if agreed to in writing between the employee and employer.
Secondly, your employer might have a Leave Policy stating when you may take leave. Important to note is that your employer cannot contract outside of the Agreement, unless the term in your contract is more beneficial to you as employee. The reason is simple in that the Agreement is a Collective Agreement. In terms of the Labour Relations Act 66 of 1995, section 199, ‘a contract of employment, whether concluded before or after the coming into operation of any applicable collective agreement or arbitration award, may not…permit an employee to be treated in a manner, or to be granted any benefit, that is less favourable than that prescribed by that collective agreement…’
Sometimes operational requirements of the employer may prevent you from going on annual leave, when it becomes available. For this reason you should ensure that when you do apply for annual leave and it has been declined, as a result of the needs of your employer at that specific point in time, that you keep a paper trail to safeguard you from forfeiting the annual leave. (More about forfeiture of leave next week)
Application and Approval of Annual Leave
The Agreement is silent on this aspect, but the BCEA provides in section 20(10) that ‘annual leave must be taken…in accordance with an agreement between the employer and employee; or if there is no agreement…at a time determined by the employer in accordance with this section…’
The first point of reference will therefore be your employer’s internal Leave Policy. Even though you are entitled to paid annual leave, the management of the workforce, in terms of operational requirements, remains that of your employer. That is why you have to apply for leave and may go on annual leave upon approval only.
Prohibitions relating to Annual Leave
You might have found yourself in a situation where, while on annual leave, your employer requires continued work that are part and partial of your duties. This is however prohibited in terms of the Agreement. Taking it a step further, your employer cannot expect you to continue with work, related to your employment duties, whilst on annual leave.
The Agreement further prohibits you from taking annual leave during your period of notice after resigning, going as far as to prohibit taking sick leave whilst on annual leave.
There are five types of leave provided for through legislation. In recent articles MISA explained the different provisions of sick leave, including the new SAF benefits and parental leave. At some point we will give you an overview on Maternity Leave and Family Responsibility leave. Next week’s article will unpack the controversial issue of forfeiture of annual leave.
Empower yourselves – Stay informed!
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Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
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Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
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