Know Your Rights: Labour Laws in Effect During Lockdown
The Covid-19 virus has placed our society in a completely new state of existence and as such many regulations have been drafted and updated by our government as a response to the national lockdown. Because these are regulations to be administered only during a State of Disaster, it is a reality that many of these regulations will affect and restrict the abilities and rights of all people.
The Women’s Legal Centre is making sure that communities are aware of these regulations and understand how it will affect them. If necessary, we will challenge these regulations and ensure that the rights of all womxn and children are protected and that their socio-economic needs are met. This will hopefully contribute to all persons living lives free from systemic and socio-economic violence.
We are available for consultations and will shortly be rolling out an extended network of women’s rights community activists to be contacted and of assistance during this time.
The Amendment Regulations of the Disaster Management Act 57 of 2002, provides for the restriction of movement of persons and goods during the period of lockdown and confines persons to their place of residence unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving, or chronic medical attention.
The following are the relevant provisions which define and speak to essential services and goods. These are the labour guidelines and regulations for both employers and employees to adhere to during the lockdown.
- Essential Services
- S213 of the Labour Relations Act 66 of 1995:
Defines essential service as a service that if interrupted would endanger the life, personal safety or health of the whole population or any part of a population, such as the Parliamentary Services and the South African Police Services.
Essential services include services provided by:1
- Medical, health (including mental health), laboratory and medical services.
- Disaster management, fire prevention, firefighting and emergency services.
- Financial services necessary to maintain the functioning of the banking and payments environment, including the JSE and similar exchanges, as well as insurance services.
- Production and sales of the goods (related to food, cleaning and hygiene products, medical products, fuel and basic goods such as airtime and electricity).
- Grocery stores, including spaza shops.
- Electricity, water, gas and fuel production, supply and maintenance.
- Critical jobs for essential government services as determined by the Head of National or Provincial Departments
- Birth and death certificates and replacement ID documents
- Essential municipal services
- Care services and social relief of distress provided to older persons, mentally ill, persons with disabilities, the sick and children.
- Funeral services, including mortuaries.
- Wildlife management, anti-poaching, animal care and vet services.
- Newspaper, broadcasting and telecommunications infrastructure and services.
- Production and sale of any chemicals, hygiene products, pharmaceuticals for the medical or retail sector,
- Cleaning, sanitation, sewerage, waste and refusal services.
- Services related to the essential functioning of courts, judicial officers, the Master of the High Court, Sheriffs, and legal practitioners required for those services
- Essential SARS services defined by the Commissioner of SARS.
- Police, peace officers, traffic officers, military medical personnel and soldiers, correctional services officials and traffic management services.
- Postal services and courier services related to transport of medical products.
- Private security services.
- Air-traffic Navigation, Civil Aviation Authority, Cargo Shipping, dockyard services
- Gold, gold refinery, coal and essential mining.
- Accommodation used for persons rendering essential services, quarantine, isolation and the lockdown.
- Production, manufacturing, supply, logistics, transport, delivery, critical maintenance and repair in relation to the rendering of essential services including components and equipment.
- Transport services for persons rendering essential services and goods, and transportation of patients.
- Services rendered by the Executive, members of Parliament, Members of the Provincial Legislature, Members of Local Councils, the Judiciary, Traditional leaders, and National Office Bearers of Political Parties represented in Parliament.
- Commissioners of the South African Human Rights Commission, Commission for Gender Equality, and the Commission for the Promotion and Protections of the Rights of Cultural, Religious, and Linguistic Communities, and the Public Protector and Deputy Public Protector.
- Transport and logistics in respect of essential goods as set out in above to neighbouring countries.
- Regulation 11B(5) further provides that all persons performing essential services may be requested to be screened for Covid-19.
- Regulation 11B (2) of the Amendment Regulations of the Disaster Management Act 57 of 2002, provides that the management of institutions that provide essential services will determine which staff will be operational during the Lockdown period.
- Regulation 11B (3) further stipulates that essential service workers must be authorized to perform services in writing by their institution.
- Persons performing essential services are required to carry permits with when traveling to and from work and must present them to law enforcement officials together with their identity document when requests to do so.
- Transportation of Essential Service Worker
- Regulation 11C (2) states that in instances where essential service workers are unable to travel to and from work, their employers must make the necessary transport arrangements to ensure that they are able to come to work. Provided that no more than 50% of the licensed of the vehicle/vessel is exceeded and all directions in respect of hygienic conditions and the limitation of exposure to persons with COVID-19, are adhered to.
- Prohibited Conduct
- Employees who do not form part of essential services and goods but are forced to continue going to work by their employers are encouraged to report their employers to the South African Police Services. If the employee is victimized for whistle blowing, they will be and are protected by the Labour Relations Act.2
- Forcing workers that do not form part of essential services is a contravention of Regulation 11G of the Amendment and a criminal offence.
- Annual Leave
- Section 20(10)(b) of the Basic Conditions of Employment Act 75 of 1997, stipulates that an employer is entitled to determine when an employee may take their annual leave.
- The Department of Employment & Labour encourages employers not to request for employees to, “utilize” their annual leave days for the duration of the lockdown. Employers are urged to rather utilize the financial assistance that the department has placed at their disposal through the COVID-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees.3
- Unemployment Insurance Fund
- UIF has developed a hotline number: 012 337 1997 for Covid-19 TERS Benefit enquiries during the lockdown period.4
- Employers that are unable to pay the full salaries of the workers they send home for their safety due to the Lockdown are encouraged to apply for the Covid-19 TERS Benefit from the UIF by sending an email to email@example.com from midnight 26 March 2020, when the lockdown started.5 Upon sending the email, applicants will receive an automated reply which outlines all the steps and details, including the requirements to claim benefits. During the lockdown period, manual claims will not be accepted to reduce contact between people to curtail the spread of the pandemic. Applications are subjected to normal verification and validation processes of the Fund.6
1 Annexure B of the Amendment Regulations of the Disaster Management Act 57 of 2002.
2 inister of Labour, Thulas Nxesi’s address at the Inter-ministerial Briefing on 31st March 2020: https://twitter.com/Newzroom405/status/1244976122930106370
3 Department of Employment & Labour, Chief Director of Labour Relations Thembinkosi Mkalipi. https://www.gov.za/speeches/employee-leave-during-coronavirus-covid-19-26-mar-2020-0000
4 Department of Employment & Labour. http://www.labour.gov.za/uif-to-process-covid-19-ters-benefit-to-assist-employers-and-workers-during-coronavirus-(covid-19)-lockdown
5 Department of Employment & Labour. http://www.labour.gov.za/uif-to-process-covid-19-ters-benefit-to-assist-employers-and-workers-during-coronavirus-(covid-19)-lockdown
6 Department of Employment & Labour. http://www.labour.gov.za/uif-to-process-covid-19-ters-benefit-to-assist-employers-and-workers-during-coronavirus-(covid-19)-lockdown