Since March this year we have seen an unprecedented amount of businesses forced to implement measures such as short time, variable pay, layoffs, and retrenchments to ensure the survival of their organisations.
On the 1st of June 2020 we were all relieved when Alert Level 3 was implemented and a large scope of businesses could open their doors again, subject to certain protocols being put in place as per the directives from government. This further meant that staff could return to work and continue business as (almost) normal.
With regards to question one, it is imperative for businesses to consider that they may not be able to immediately operate at a 100% staff capacity. Alert Level 3 Regulations clearly state that should an employee be able to work from home they should do so. Furthermore, that the business must adopt a phased in approach in strict compliance with health protocols to ensure that employees return to a COVID-ready workplace.
Taking into consideration the above protocols as well as the directive stating specifically that employees should be phased into the workplace, it is clear that it is highly unlikely for most businesses to operate at a 100% staff compliment from the onset of Alert Level 3 until a thorough “Return to Work Plan” has been implemented to ensure that all health protocols are observed.
Secondly, the potential financial instability after a nine-week lockdown and whether the business is financially able to bring all employees back to work, begs the question, what do we do now? Can the business simply tell the employees to remain home as previously communicated?
It may not be as simple. In most cases, the business will no longer be under mandatory lock down, but all staff may not be able to return to work immediately due to operational reasons. A thorough consultative process will therefore need to be adopted as there is no longer a supervening impossibility imposed by restrictions to operate but rather operational requirements which stem from financial reasons.
The solution for businesses who are not in a financial position to operate at a full capacity or those who may not have sufficient work for all staff may consider putting employees on short time or lay them off for an agreed period of time.
Short Time refers to the reduction of working hours of employees for a temporary period, whereas lay-offs mean that employees are not required to perform any duties for a temporary period of time.
Both the above options constitute a temporary change in terms and conditions of employment i.e. being requested to stay home by the employer or a reduction in working time as well as the aspect of no payment for a temporary period. Due to the aforementioned, employees need to be consulted on the proposed short time / lay-offs and agreement needs to be reached between the parties as a change in terms and conditions cannot be unilaterally implemented.
Should there be a recognized trade union in the workplace, the union also needs to be consulted regarding the proposed lay off or implementation of short time affecting their members and businesses must pay specific attention to a fair and objective selection criteria as well as the fair staggering of work in the case of short time.
Employers must further take into consideration any bargaining council main agreement to ensure that they adhere to specified procedures relevant to their industry and further, once the process is finalized and agreement is reached, it is highly recommended that an agreement is signed between the parties outlining the terms of the temporary lay-off or short time.
Should you be in a similar position, or would like more clarity on any of the above procedures please contact us or any LabourNet consultant for more information.