NO WORK – NO PAY – NO ACCRUAL OF LEAVE…OR NOT!

Thinking back over the past 18 months there cannot be any one employee in the retail motor industry that can say that he/she has not been financially affected by the COVID-19 Pandemic. Not only in regard to remuneration, but also in regard to benefits.

Benefits, none the less, provided or prescribed by legislation such as the Basic Conditions of Employment Act 75 of 1997 (BCEA), the MIBCO Main Collective Agreement (Agreement); the Motor industry Provident Fund Agreement and your Contract of Employment.

The default saying or version that is out there in the public with regard to the accrual of annual leave is – ‘NO WORK –NO PAY – NO ACCRUAL OF LEAVE!’

But is it as simple as this? Let’s unpack the different provisions and you will be the judge!

MIBCO Main Collective Agreement

In a perfect world this would have been the main point of reference. The reality is that the Agreement was not in place, meaning not enforceable, during most of the COVID 19 Pandemic as it was only signed and published on 18 March 2021 and effective/enforceable from 29 March 2021.

The Agreement defines, in clause 5, a leave cycle as ‘the period during which an employee earns three week’s leave…four week’s leave…’ Included in the definition of ‘employment’ or ‘shifts’, as far as the provision of leave is concerned, is ‘shifts which are of shorter duration than those permitted in terms of this Agreement, because – short-time was worked… such shorter shifts were worked with the permission of the employer.’

From the inclusion of short time or shorter hours with the permission of your employer it is clear that the fact that you were placed on short-time or temporary lay-off does not mean that the accrual of your leave will be affected. The Agreement provides further that ‘Annual Leave…Three consecutive weeks’ leave or Four consecutive weeks’ leave on full pay shall be granted to all employees…who have completed the period of continuous employment (as defined above) with the same employer…since the date of their engagement or from the date on which their previous annual leave fell due, whichever is the latter.’

In terms of the Agreement your leave will continue to accrue even though you are not working as a result of short-time. BUT this will only apply w.e.f. 29 March 2021.

Contract of Employment

Should your Contract of Employment provides for annual leave entitlement, for instance that  you will be entitled to 15 days annual leave per leave cycle, it is understood that the employee accrues leave irrespective of whether he or she works or not. This would in essence mean that annual leave will accrue during the period that you do not work as a result of short time or temporary lay-off. You and your employer are bound to the terms and conditions set out in your Contract of Employment.

The flipside of the coin is when your Contract of Employment provides for one day’s leave for each 17 days worked. This will have an impact on the accrual of your leave when you do not work as a result of temporary lay-off or short time. In essence this is a clear example where the ‘no work – no pay – and no accrual of annual leave’ principle comes into play.

The Basic Conditions of Employment Act, 75 of 1997(BCEA)

In terms of the BCEA an employer and an employee may agree to an alternative method of calculating the annual leave entitlement, as mentioned above, namely one day’s leave for each 17 days worked or for which the employee was entitled to be paid, or one hours leave for every 17 hours worked for which the employee was entitled to be paid.

Conclusion

Having regard to these three sources that may regulate the accrual of your annual leave when you are not working as a result of short time or temporary lay-off, you should familiarise yourselves with the one that is regulating your leave. Be that your contract of employment or the BCEA or the Agreement. Do not merely accept what is said, but empower yourselves with the knowledge of what is applicable in your specific scenario.

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Kindly utilise the following e-mail addresses and links for assistance during this time:

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