Rolling blackouts in South Africa have had a significant impact on employers. The frequent power outages have disrupted employers, resulting in, among other things, lost productivity, increased costs, and decreased customer satisfaction. Rolling blackouts have also had a significant impact on the employment relationship.

The most apparent impact of rolling blackouts on employers is the disruption to operations. Employers rely on electricity to power their equipment and operations are halted when the power goes out. This can lead to lost productivity, as employees cannot work and customers cannot be served.

Employers may have to invest in backup generators or other alternative power sources and pay for additional fuel or energy sources to keep operations running during outages. Employers may also have to pay for additional staff to manage the outages. This can add up to a significant cost for employers.

Of course, not all employees require electricity to work. But for many employers, rolling blackouts may result in a total disruption to operations.

Some employers and employees are still under the impression that the “no-work, no-pay” principle applies to these situations and that employers do not have to remunerate workers if they cannot work during rolling blackouts. This is not the case.

Workers at a generator repair business in the Soweto district of Johannesburg, South Africa, on Saturday, Feb. 11, 2023. Eskom has been implementing rolling blackouts since 2008 because it cant meet demand. Photographer: Leon Sadiki/Bloomberg via Getty Images

In terms of the common-law contract of employment, an employee is merely obligated to tender their services. Consequently, an employer is still responsible for paying an employee if the employee tenders their services, but the employer either does not want the employee to work or cannot provide the employee with work (due to, for example, rolling blackouts).

The employer is therefore obliged to pay the employee even if the employee cannot work for reasons beyond the employer’s control.

Employers may attempt to negotiate novel workplace arrangements to mitigate the effects of rolling blackouts on employee productivity, such as requiring employees to take a lunch break during rolling blackout periods.

These attempts may, however, be hampered by section 14 of the Basic Conditions of Employment Act 75 of 1997, which requires that a meal interval must be provided on completion of five hours of work.

In addition, section 14(3) of the act requires that an employee be remunerated for any portion of a meal interval that is more than 75 minutes unless the employee lives on the premises where the workplace is situated. As rolling blackout stages are often communicated on short notice and because rolling blackouts last longer than 75 minutes, this solution is not necessarily practical.

When employers require employees to work more than the usual 45 hours in any week (or nine hours on any day if the employee works for five days or fewer in a week or eight hours on any day if the employee works on more than five days in a week) the employer may also be liable to pay overtime to employees. There are, however, limits to the amount of overtime that may be worked (section 10 of the Act).

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It may be possible for employers to enter into contractual arrangements with their employees that provide that employees would not be compensated during rolling blackouts. New employees, being economically weaker than the employer, may have little choice but to accept these conditions.

Employers may also attempt to change existing employees’ current terms and conditions through negotiation. Although a unilateral change by the employer of the terms and conditions of employment is not permissible, it may still be fair for an employer to dismiss (or retrench) employees for operational requirements (see Mazista Tiles (Pty) Ltd v National Union of Mineworkers and Others (JA52/02) [2004] ZALAC 16 (22 July 2004) par 48-49).

Changes to an employee’s terms and conditions of employment may be required if the employer undergoes organisational restructuring in response to rolling blackouts.

Suppose an employee refuses to accept changes essential to meet the operating requirements of the employer because of rolling blackouts. In that case, the employer will have the right to retrench the employee if the dismissal is related to the operational requirements of the employer and not primarily the refusal of the employee to accept the employer’s demand. Employers will then be free to re-employ the employee on the new terms and conditions.

Ultimately, the increased pressure rolling blackouts place on employers may necessitate employers to retrench employees, even in circumstances where employees are willing to accept changes to their terms and conditions of employment to mitigate the impact of rolling blackouts.

Rolling blackouts have caused a decrease in productivity, as employers are unable to operate at full capacity. Additionally, several employers have had to reduce their workforce to cut costs, leading to retrenchments.

Rolling blackouts have also caused a decrease in investment. This has reduced the number of jobs available, as employers cannot employ new employees.

Rolling blackouts also cause a decrease in consumer spending, as people cannot purchase goods and services due to the lack of electricity. This has reduced demand for goods and services, leading to a decrease in revenue for employers and a decrease in the number of employees needed to meet the demand.

These trends are likely to continue as no end is in sight to South Africa’s continuing electricity woes, necessitating retrenchments.

Ultimately, it may be in the best interest of organised labour and employers to attempt to reach collective agreements in which problems surrounding rolling blackouts are addressed.

Item 7 of the Metal and Engineering Industries Bargaining Council Main Agreement, for example, allows for reduced working time owing to a shortage of work or materials and any other justifiable contingencies, including planned rolling blackouts or unforeseen contingencies beyond the control of the employer if specific criteria are met. Many other industries are following suit.

There is no one-size-fits-all solution to the woes of rolling blackouts. While some employers have found it effective to allow employees more flexibility in the form of work-from-home arrangements, others have found it better to bring employees back to the office where alternative energy sources can provide electricity for all. Other industries, being totally reliant on power supply from Eskom, may not escape the harsh realities of rolling blackouts.

Rolling blackouts in South Africa have a daunting effect on employers and employees. To appropriately deal with rolling blackouts, it is essential to understand what legal obligations employers have towards their employees and what the consequences of continued pressures brought about by rolling blackouts may be.

Despite the disruption to operations, the cost of additional energy sources and labour, and the necessity of novel workplace arrangements, employers are still obligated to pay their employees in the face of rolling blackouts.

Therefore, employees, organised labour and employers must collaborate and reach novel arrangements that address the impact of rolling blackouts. DM