Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Metal and Engineering IndustriesExtension of the Consolidated Main Collective Agreement to Non-parties (for the period 1 July 2021 to 30 June 2024)Part I12. Leave Pay |
| (1) | Except in the case of employees employed on incentive bonus work, leave payments provided for in this clause shall, subject to (a), (b), (c) and (d) hereof, be computed at the hourly rate as defined in this Agreement which the employee is receiving or entitled to receive on the date of qualification for his paid leave. |
| (a) | The leave pay of an employee who takes leave on the date on which he becomes entitled thereto, or who takes leave within four months from the date on which he becomes entitled thereto, as provided for in clause 12(3)(g) of Part I of this Agreement, shall be calculated at the rate applicable as at the date on which he became entitled to such leave: Provided that if the employee’s leave is deferred at the request of the employer and is taken within four months from the date of qualification, the employee shall be paid his leave pay calculated at the rate applicable on the date on which he proceeds on leave: Provided further that if any statutory increase occurs during the period between the qualification date and the date of return from leave, his leave pay shall, not later than seven days after he has returned from leave, be adjusted retrospective from the date of coming into force of such increase. |
| (b) | The leave pay of an employee in respect of whom the Council has granted an exemption at his own request to take his leave after the four-month period provided for in clause 12(3)(g) of Part I of this Agreement, shall, subject to the conditions contained in the certificate of exemption, be calculated at the rate applicable on the date on which the employee became entitled to leave: Provided always that for purposes of this calculation, the rate applicable shall, subject to subparagraphs (i) and (ii) hereof, include such statutory increase which came into effect subsequent to the date on which the employee qualified for leave. |
| (i) | In the case of an employee entitled to three consecutive weeks’ paid leave in terms of clause 12(3) of Part 1 of this Agreement, the leave pay shall be adjusted from the date of coming into force of any statutory increase which became effective within a period of three weeks from the date on which the employee qualified for the leave. |
| (ii) | In the case of an employee entitled to four consecutive weeks’ paid leave in terms of clause 13 of Part I of this Agreement, the leave pay shall be adjusted from the date of coming into force of any statutory increase which became effective within a period of four weeks from the date on which the employee qualified for leave. |
| (c) | The leave pay of an employee whose leave, at the request of the employer, and only after an exemption has been applied for and been granted by the Council, is postponed beyond the four-month period provided for in clause 12(3)(g) of Part I of this Agreement, shall, subject to the conditions contained in the certificate of exemption, be calculated at the rate applicable on the date on which the employee actually proceeds on leave. If any statutory increase occurs whilst the employee is on leave, the employer shall, not later than seven days after the employee has returned from leave, adjust the leave pay retrospective from the date on which such increase became effective by the amount of such increase. |
| (2) | Leave payments of employees employed on incentive bonus work shall be computed on the average weekly earnings exclusive of overtime over the last three months actually worked on incentive bonus work prior to the leave becoming due or over the number of weeks actually worked during the period of employment on incentive bonus work, whichever is the lesser period. |
| (3) | Every employee shall be entitled under this Agreement to three consecutive weeks’ paid leave, subject to the following conditions: |
| (a) | The qualification for the paid leave (whether worked for one or more employer) shall be 283 shifts, exclusive of overtime, actually worked on a six-day week basis, or 234 shifts, exclusive of overtime, actually worked on a five-day week basis: Provided that— |
| (i) | except as is otherwise provided for in proviso (ii), employment with the same employer for less than 25 shifts on a six-day week basis or 20 shifts on a five-day week basis, as the case may be, shall not count for the paid leave: Provided that an employee whose employment is terminated after working 13 shifts on a six-day week basis or 10 shifts on a five-day week basis, as the case may be, shall be credited for purposes of paid leave with the number of shifts he has actually worked for that employer: Provided further that where an employee’s service is broken in terms of this proviso and he resumes work for the same employer he shall, if he does not work for another employer in the interim, be credited for purposes of paid leave with the total number of shifts worked for such employer; |
| (ii) | when, in the case of employees employed in marine work and/or turnaround work, the employment is terminated by the employee, employment with the same employer for less than 25 shifts, on a six-day week basis or 20 shifts on a five-day week basis, as the case may be, shall not count for paid leave, but where the employment is terminated by the employer, all shifts worked and/or as allowed for in terms of proviso (iii) shall count for paid leave; |
| (iii) | periods of absence on account of sickness aggregating not more than 52 shifts on a six-day week basis or 43 shifts on a five-day week basis, as the case may be, in any one qualifying period for paid leave, shall count for the paid leave: Provided that an employer shall be entitled to call upon the employee for a medical certificate in proof of cause of absence. Periods of absence on account of an accident arising out of and in the course of the employee’s employment shall count for leave purposes if such accident has been admitted as falling within the provisions of the Compensation for Occupational Injuries and Diseases Act, 1993, and the periods of absence counting for purposes of paid leave shall be the periods of disablement admitted by the said Act; |
| (iv) | periods of absence on the additional week’s paid leave or accumulation thereof provided for in clause 13 of this Part of the Agreement shall count for purposes of paid leave to the extent of the number of shifts which would normally have been worked during those periods by the employee concerned; |
| (v) | short shifts worked whilst working short time shall count as shifts actually worked. Employees working 24 hours or more, spread over three or four days, and employees on a three-shift system working three or four shifts per week, shall— |
| (aa) | be credited with the full shifts for an ordinary week for purposes of the paid leave referred to in this clause (for up to three 3 months in any calendar year); and |
| (ab) | thereafter, be credited with one additional shift per week over and above those shifts actually worked for purposes of the paid leave referred to in this clause. |
| (vi) | Periods of absence on account of lay-offs in terms of item 2 of Annexure “A” aggregating not more than 48 shifts on a six-day week basis or 40 shifts on a five-day week basis, as the case may be, in any one qualifying period for paid leave, shall count for paid leave. |
| (vii) | Periods of absence whilst participating in protected industrial action in terms of Section 64 of the Labour Relations Act, shall count for paid leave. |
| (b) | The leave shall include four weekends and be for one unbroken period. |
| (c) | Should an employee proceed on leave, the employer shall, for each public holiday which falls within the employee’s period of leave and which otherwise would have been an ordinary working day for such an employee extend the leave period by one working day with full pay. |
| (d) | Payment for each such public holiday as contemplated in 12(3)(c) above shall be paid to the employee in a manner as provided for in clause 8 of this Agreement by his employer on his ceasing work to go on leave or in such manner as agreed between the employer and the employee. |
| (e) | Should an employee who is required by his employer to work away from his usual place of domicile be about to take his paid leave, the leave shall, provided the employee returns to his place of domicile, commence and terminate at the place of domicile of that employee. |
| (f) | Application for the leave shall be made by an employee within one month of the date on which he becomes entitled thereto. |
| (g) | The leave shall be granted by the employer so as to commence within a period of four months of the due date. |
| (h) | An employee shall be entitled to and shall take his leave within a period of four months from the due date, unless exemption is granted by the Council. |
| (i) | No employee shall engage in any employment for gain during the period of his leave. |
| (4) |
| (a) | When an employee is about to take his paid leave, the moneys payable to him for the purpose thereof shall be paid to him in a manner as provided for in clause 8 of this Agreement by his employer on his ceasing work to go on leave. |
| (b) | The employer shall, at the time of making the payment referred to in (a) and in clauses 13 and 14 of this Part of the Agreement, forward to the Council a leave pay and leave enhancement pay receipt drawn up in a form acceptable to the Council and containing the employee’s signature as a receipt for the payment. |
| (5) | When the employment of an employee terminates before he becomes entitled to paid leave in terms of subclause (3), he shall, according to whether the establishment works a six-day week or a five-day week, be paid leave pay pro rata to the number of shifts worked or, at his request, be furnished with a voucher drawn up in a form acceptable to the Council setting out the number of shifts which count for leave purposes. In such case, the employee shall receive the voucher at the same time as he leaves the employer’s service and the employer shall immediately forward to the Secretary of the Regional Council for the area in which the employee was engaged the money equivalent of the leave to which the employee is so entitled, computed as provided for in subclause (1) or subclause (2), whichever is applicable, less any deduction compelled by law for income tax. |
| (6) | When an employee dies or is, in the course of his work, incapacitated from continuing at his trade, the amount which is due in respect of leave pay shall be payable to his estate or himself, as the case may be. |
| (7) |
| (a) | After not less than 49 weeks have elapsed, reckoned from the date upon which the period of employment covered by the voucher commenced, an employee who has been furnished with a voucher in terms of subclause (5) and is no longer employed in the Industry shall be entitled, subject to paragraph (b), on presenting the voucher to the Council in the region of origin, to payment thereon of any unpaid balance standing to his credit in the books of the Council. |
| (b) | Any voucher issued to an employee in terms of subclause (5) shall be valid for a period of two years from the date of the last shift worked by such employee, and amounts standing to the credit of an employee in the books of the Council shall, on the expiration of such period, accrue to the Council. Amounts so accruing to the Council shall be credited to a Fund designated ‘The Trust Fund Advances Fund’ from which the Council in its absolute discretion may— |
| (i) | advance to employees the money equivalent of the paid leave entitlement forwardable to the Council in terms of subclause (5) and/or the money equivalent of the leave enhancement pay entitlement forwardable to the Council in terms of clause 14 of this Part of the Agreement, as the case may be; or |
| (ii) | pay to employees in whole or in part wages and/or earnings and/or the money equivalent of any paid leave and/or leave enhancement pay entitlement in cases where such moneys or part thereof would otherwise be lost to employees by reason of the insolvency or liquidation of any employer: Provided that— |
| (aa) | any amounts accruing to the Council in terms of paragraph (b) which the Council may regard as being in excess of a sufficient reserve in the Trust Fund Advances Fund may be accrued to the Council funds, but shall not be accrued to the Trust Fund Advances Fund or to the Council funds until a further period of six months has elapsed after the expiration of the two-year period, and any valid claims presented during such six-month period shall be paid by the Council; |
| (ab) | the Council shall consider any claim that may be made by any employee after the expiration of such six-month period, and may in its discretion make ex gratia payments from the Trust Fund Advances Fund (or from such amounts accrued to Council funds in the event of the depletion of the Trust Fund Advances Fund) to such employees as are referred to herein. |
| (8) | Except as otherwise provided herein employment for the purposes of this clause shall be deemed to commence from the date on which an employee enters the employer’s service or the date on which he last became entitled to the paid leave, whichever is the later. |
| (9) | The Council may make reciprocal arrangements with any other industry for the interchange of leave pay vouchers to the benefit of employees leaving the Industry. |