For the purposes of this clause:
| (a) | "leave cycle" means the period during which an employee earns three week's leave in terms of sub-clause (2) of this clause; |
| (b) | the terms "employment" and "shift" shall be deemed to include— |
| (i) | shifts which are of shorter duration than those permitted in terms of this Agreement, because— |
| (aa) | the employee arrived late at his place of work, but such lateness did not exceed half-an-hour; or |
| (bb) | short-time was worked; or |
| (cc) | such shorter shifts were worked with the permission of the employer; |
| (ii) | shifts that the employee concerned normally would have worked but did not work because he was— |
| (aa) | absent on paid leave in terms of this Agreement; |
| (bb) | absent from work on the instructions or at the request of his employer; |
| (cc) | absent from work owing to sickness or accident amounting in the aggregate to a period not exceeding 30 days in any leave cycle; |
| (dd) | absent from work on any public holidays referred to in clause 9.6 of this Division: |
Provided that an employee who after the expiration of his annual leave terminates his employment by desertion shall have no claim in respect of subparagraph (b)(i) of this definition:
| (c) | "remuneration" means an employee's wages as defined in this Agreement , plus any bonus regularly paid to the employee, the amount of such bonus being deemed to be the average amount received by or accrued to an employee in respect of the period of 13 weeks immediately preceding the date the employee goes on annual leave or terminates his employment, or if a period of less than 13 weeks has been worked, the average amount received by or accrued to an employee in respect of the number of weeks actually worked. |
Provided that in respect of a motor vehicle salesperson and supply salesperson, "remuneration for the purposes of calculating accrued leave pay shall mean an employee's wage as defined in the Agreement, plus any commission on sales regularly pad to the employee, the amount of such commission being deemed to be the average amount received by or accrued to an employee in respect of the period of 52 weeks immediately preceding the date the employee goes on annual leave or terminates his employment, or if a period of less than 52 weeks has been worked, the average amount received by or accrued for an employee in respect of the number of complete weeks actually worked.
Note: The calculation is based on 52 or 53 (weeks), whichever is applicable
[Note - A "bonus" regularly paid to an employee in terms of this definition does not include commission].
Subject to the provisions of subparagraph (b) of this clause, three consecutive weeks leave on full pay shall be granted to all employees, including apprentices and trainees undergoing training under the Skills Development Act 97 of 1998 as amended, who have completed the period of continuous employment with the same employer, as set out in the schedule below, since the date of their engagement or from the date on which their previous annual leave fell due, whichever is the later.
Subject to the provisions of (1)(b)(ii) of this clause, four weeks' leave on full pay shall be granted to all employees who on or after 1 December 1990 have completed 8 or more periods of continuous employment with the same employer, as set out in the schedule below, since the date of their engagement, subject to the following conditions:
| (i) | Chapter lll employees only |
Provided that in the case of establishments registered under Chapter 111 of Division C of this Agreement, the annual leave shall be 4 weeks leave on full pay after 5 years of service. This provision will be effective as from 25 September 2007 and will not impact on the accrued years of service and/or leave cycle.
| (ii) | All employees in the Industry |
| (aa) | Annual leave may be split by mutual Agreement between the employer and employee, provided that no intimidation is exercised to obtain such an Agreement: |
| (bb) | the provisions of this clause relating to accrued leave pay, shall apply mutatis mutandis in the case of employees who qualify for four weeks' annual leave: |
SCHEDULE
| (i) | Weekly-paid employees, other than Parking Garage Attendants employed at a parking garage exclusively on the duties connected with night parking services— |
| (aa) | normally working a five-and-a-half day week: 313 shifts, excluding overtime; |
| (bb) | normally working a five-day working week: 261 shifts, excluding overtime. |
| (ii) | Monthly paid employees and Parking Garage Attendants employed at a parking garage exclusively inthe duties connected with night parking services: 12 months. |
| (3) | Commencement of Annual Leave |
Annual leave shall become due immediately an employee has completed the qualifying period specified in sub-clause (2) of this clause but it may be taken before or after it becomes due if—
| (a) | the circumstances of the employer's business so require: or |
| (b) | the employer and the employee so agree: |
Provided that annual leave shall in no circumstances be taken more than two months before the due date, nor delayed for more than four months after the due date, unless the employee and the employer concerned have, before the expiration of such period of four months, agreed thereto, in writing, and shall not be delayed by more than six months after the due date.
| (4) | Calculation of Annual Leave |
| (a) | Pay for annual leave shall be calculated at the rate of remuneration the employee is receiving at the date on which he proceeds on his annual leave: Provided that this shall not be less than the rate prescribed for the relevant category of employee in the relevant Chapter or Division B of the Agreement, and shall be paid to him by the employer on the last working day prior to the beginning of his leave. |
Note: Pay for annual leave in respect of a motor vehicle sales person or supply sales person shall be payable in accordance with sub-clause (9)(b) of this clause)
| (b) | The pay due to an employee for annual leave shall be paid by the employer on the last working day prior to the beginning of the employee's leave if the employee requests payment before proceeding on leave. |
| (5) | Public Holiday falling within annual leave |
| (a) | If any of the paid public holidays referred to in clause 9.6 of this Division falls on a working day within the period of leave of an employee, the employer shall either— |
| (i) | add one working day on full pay to the said period of leave in respect of each such paid public holiday; or |
| (ii) | pay to the employee in question one normal day's pay in lieu of leave on the pay-day immediately following such employee's period of leave. |
| (6) | Prohibition relating to Annual Leave |
| (a) | Annual leave shall not be concurrent with any period during which the employee is under notice of termination of employment. |
| (b) | Sick leave shall not be concurrent with any period during which the employee is on annual leave, i.e.sick leave cannot betaken whilst on annual leave. |
| (c) | Subject to sub-clause (6)(a) of this clause, an employer shall permit an employee, at the employee's written request, to take leave during a period of unpaid leave which permission shall not unreasonably be withheld. |
| (d) | An employer may reduce an employee's entitlement to annual leave by the number of days of occasional leave on full pay granted to the employee at the employee's request in that leave cycle. |
| (e) | No employee shall engage in his normal occupation during the period of his leave and no employer shall require or knowingly permit any employee to work in the Industry during the period of his leave. |
| (7) | Deductions from leave pay |
Except as provided elsewhere in this Agreement, no deductions from leave pay shall be made as a set-off against any moneys that may be owing to the employer: Provided that the following conditions shall apply to staff loans:
| (a) | Staff loans shall be limited to mutually agreed upon amounts advanced as a bona fide loan; |
| (b) | The employee shall consent to the staff loan in writing (acknowledgement of the loan stipulating the amount of the loan, interest if any, instalments and the terms of the loan); |
| (c) | A copy of the acknowledgement of the loan shall be kept for purposes of MIBCO inspections and the employee concerned shall be handed a copy thereof; |
| (d) | The maximum amount deducted each month shall be in accordance with the limitations set out in clause 7 of the Administrative Agreement; |
| (e) | The aforementioned limitations may be exceeded in the event of termination of employment of whatever reasons with the written approval from the Regional Council concerned. |
| (8) | Outstanding leave on termination of services |
| (a) | On the termination of the services of an employee who has qualified for annual leave in terms of sub-clause (2) of this clause, but who has not been granted or has not taken his leave at the date of such termination, an amount of leave pay calculated in accordance with the provisions of sub-clause (9) of this clause and a holiday bonus in accordance with the provisions of Clause 6.1 of this Division shall be paid by his employer. |
| (b) | In the case of all employees the accrued leave pay referred to in sub-clause (9) of this clause shall be paid direct to the employee on termination of service. |
| (a) | An employee who is discharged from or leaves his employment before he has qualified for annual leave in terms of sub-clause (2) of this clause shall be entitled to accrued leave pay equivalent to three fifty-seconds of one week's remuneration for each completed span of employment from the date of beginning work with the employer or from the date on which his last leave became due, whichever is the later. For the purposes of this sub-clause, "span" means the number of shifts normally worked by the employee in a week. |
Note: Accrued leave pay is calculated by multiplying three weeks' wages by the fraction of a year worked, thus—
for six months' employment, leave pay is ½ x times three weeks' pay;
for 13 weeks' employment, leave pay is ¼ x times three weeks' pay;
for five weeks' employment,leave pay is 5/52 x three weeks' pay.
To arrive at three weeks' pay for a monthly-paid employee, multiply the monthly pay by 9/13. Thus for a monthly-paid employee the leave accrued in—
six months is ½ x 9/13 x one month's pay;
13 weeks is ¼ x 9/13 x one month's pay;
five weeks is 5/52 x 9/13 x one month's pay.
| (b) | In the case of a motor vehicle sales person and supply sales person accrued leave pay shall be calculated on the basic wage plus average commission on sales earned over the preceding 52 weeks, or accrued in respect of the number of complete weeks actually worked should the latter period be less than 52 weeks. |
| (c) | Accrued leave pay held by an employer on behalf of an employee who for health reasons or any other incapacity has become unable to continue with his occupation shall become payable immediately to the employee, and accrued leave moneys due to an employee who dies in the course of his employment shall become payable immediately to his estate. |
Note: The calculation is based on 52 or 53 (weeks), whichever is applicable.
| (10) | Leave pay on closing of establishment once a year |
| (a) | In the case of establishments registered under Chapters ll, lll, IV and Chapter V of Division C of this Agreement an employer may at any time,but not more than once in any period of 12 consecutive months, close his establishment for purposes of granting his employees paid leave as prescribed in this clause, and where at the date of closing of the establishment any employee is not entitled to the full prescribed period of paid annual leave, the employer shall pay him an amount on the basis laid down in sub-clause (9) of this clause as if his employment had terminated, plus remuneration in respect of any paid public holidays which fall during the period the establishment is closed and which are required to be added to an employee's annual leave in terms of Clause 5.1(5) of this Division at a rate of not less than he would normally have received for his ordinary working hours for that day of the week: |
Provided that in respect of establishments registered under Chapters II, III and V of Division C of this Agreement,maintenance staff may, subject to the provisions of sub-clause (6)(e) of this clause, be required or permitted to work during the period the establishment is closed in terms of this sub-clause.
| (b) | For the purpose of this clause, "maintenance staff" shall mean employees engaged in the maintenance, overhauling or repairing of machinery, equipment or plant. |
| (c) | An employer who decides to close his establishment in terms of this sub-clause shall advise his employees of his decision at least three months before such closing. |
