In addition to the primary question of what employees are entitled to be paid (if anything) during the period of lockdown, there are a number of other contractual considerations that employers should consider in light of the lockdown period.

This newsflash addresses the position in relation to public holidays during lockdown, including whether employees are required to be paid.

Public holidays during lockdown

With Good Friday (observed on Friday, 10 April 2020 this year) and Family Day (observed on 13 April 2020 this year) approaching, it is important that employers understand their obligations in relation to payment for and exchange of public holidays during the lockdown period.

In terms of the Public Holidays Act 36 of 1994, as amended (PBA), an employee is entitled to be paid for the number of public holidays provided for by the PBA (currently at least 12 days in a year).

It is recognized that where an employee is entitled to more than the number of public holidays provided in the PBA in terms of her/ his contract of employment, a wage regulating measure or other agreement, that employee would be entitled to the additional public holidays.

Section 18 of the Basic Conditions of Employment Act 75 of 1997, as amended (BCEA) regulates work, and payment for work, on public holidays. This section distinguishes between days on which the employee would ordinarily have worked, and days on which the employee would not ordinarily have worked.

Should the employee not be required to work on the public holiday that falls on a day on which s/he would ordinarily have worked, the employee must be paid her or his ordinary wage.

In most cases, employees ordinarily work on a Friday and a Monday, the days on which Good Friday and Family Day fall, and they would accordingly be entitled to receive their ordinary remuneration.

Irrespective of the lockdown, most employees would in any event not have worked on these public holidays, and as such, they would be entitled to be paid for those days.

What about those employees who work on Good Friday and Family Day, such as workers in essential services? In terms of the BCEA, these employees are entitled to be paid double their ordinary wage for work on these days.

The PBA also provides that any public holiday shall be exchangeable for any other day which is fixed by agreement between an employer and employee. This means that it is possible for employers and employees to agree that the actual public holiday would be treated as a normal day, and that another day in the year would be treated as the public holiday.

It is accordingly possible for employers to treat this coming Good Friday and Family Day as normal days during the lockdown. Those employees who are currently on no-work-no-pay could, by agreement, not be paid for these days, but they would then be entitled to get two days’ paid off at some point after the lockdown. In the event that no agreement is reached, employees on the no-work-no-pay arrangement would be entitled to be paid for the public holidays.

Similarly, employees who are required to work on Good Friday and Family Day may be paid their ordinary wage now, and be given two days’ paid time off at an agreed date after the lockdown. It is advisable to record the agreement on this exchange of public holidays in writing.