The declaration of a national emergency as a result of the breaking of the novel coronavirus culminated into a need to issue The Guidelines on Employment Contingency Measures in Response to the Coronavirus (COVID-19) Pandemic, General Notice No. 22 of 2020, which Guidelines were issued in terms of Section 32(10) of The Coronavirus (COVID-19) Regulations, Legal Notice No. 72 of 2020.
These Guidelines were issued in order to assist employers and employees address
any uncertainties in respect of payment of salaries, employment status of workers,
workplace governance and other pertinent issues which were considered necessary to regulate during this period. Amongst other objectives, these Guidelines promote workplace related social dialogue (consultations) between employers and
workers in respect of all employment contingency measures that are deemed
appropriate during the period of partial lockdown or national emergency.
We sympathise with social partners since we fully understand how challenging it is
for them to manage industrial relations issues these days, more especially in relation to the payment of salaries and wages. This notwithstanding, we implore all
employers to ensure full compliance with the Guidelines on Employment Contingency Measures when implementing their interim employment measures as might be deemed appropriate for their businesses during this difficult period.
The Guidelines have been drafted in such a way that they are equally sensitive to the economic challenges which businesses out there are faced with during this time, inasmuch as they encourage the continued payment of salaries for workers. To this
extent, provision has been made in the Guidelines that where it becomes economically impossible to continue paying salaries for employees, certain
measures should be taken by employers in an effort to mitigate against the effects
of loss of earnings. The continued payment of salaries is not based upon the principle
of “no work no pay”, but it is conditional upon financial considerations of the
business. The “no work no pay” principle only applies during strike actions, now the
employees are not on strike but certain businesses are closed in compliance with
the partial lockdown. Again, we reiterate that any contingency measure that is considered possible depending on the financial circumstances of a business, including the one on pay cuts or reduction of payment of salaries, should be taken in full consultation with the employees and the office of the Commissioner of Labour, and should not be imposed upon the employees.
If all the options that are meant to mitigate against the effects of loss of earnings as
listed in Section 4 of the Guidelines have been exhausted, employers are allowed
to then apply for unpaid layoffs of their employees in terms of Section 5(a) of the
Guidelines. Such layoff applications are directed to the office of the Commissioner
of Labour and should be submitted through email provided hereunder not physical
visits to the Ministry.
At this juncture we would want to sincerely commend those employers who have
since demonstrated their commitment in complying with the Guidelines. Below we
provide some highlights of the compliance rate by employers thus far, excluding enquiries. In this highlight we have picked up only three sections on employment
contingency measures, that is, on ENPF contributions for April and May, 2020, release of the bond or security for payment of wages and lay-offs applications.
APPLICATIONS FOR THE RELEASE OF THE BOND OR SECURITY FOR THE PAYMENT OF
Sixteen (16) companies have so far invoked Section 4 (b) of the Guidelines on applying for the release of the bond or security on payment of wages. These applications are from the 15th April, 2020 to date. It is worth noting that these are promptly processed by the Ministry without any pre-requisites. Of these, twelve (12) companies are from the Hhohho Region and only four (4) are
from the Manzini region.
SUSPENSION OF ENPF CONTRIBUTIONS FOR APRIL AND MAY 2020
Thirty-six (36) companies have so far invoked Section 4 (d) of the Guidelines on
giving notice to divert the April and May, 2020 ENPF contributions towards cushioning the salaries of employees. This occurred during the period from the 16th
April, 2020 to date. Of these, nineteen (19) are from the Hhohho region; sixteen (16) are from the Manzini Region; with only one (1) from the Shiselweni region.
APPLICATIONS FOR LAY-OFFS
Forty-three (43) companies have so far invoked Section 5 (a) of the Guidelines by
filing applications for temporary lay-offs of their employees. This occurred during the period from the 9th April, 2020 to date.
From this, seventeen (17) are from the Hhohho Region; one (I) is from the Lubombo
Region; twenty-two (22) are from the Manzini Region; and three (3) are from the
Shiselweni Region. Of the forty-three (43) companies, thirteen (13) have since had their applications approved after due processes resulting in a total of 8 429 employees being affected
by the unpaid Lay-Offs.
Suspension of Disciplinary Proceedings
In an effort to give full effect to the implementation of the provisions of Section 15(1) of the Coronavirus (COVID-19) Regulations, Legal Notice No. 72 of 2020 in respect of travel restrictions, disciplinary proceedings initiated either before or during the period of COVID-19 partial lockdown are to be suspended pending the lifting or
relaxation of the strengthened partial lockdown measures.
It has since been brought to the attention of Government that the continuation of none-core business operations such as disciplinary proceedings carries along with it
the indirect consequence of inviting other players such as Union Representatives,
Labour Consultants and Lawyers to disciplinary venues, something which militates against the lockdown efforts. Such business operations can always be continued with after the lockdown.
Employers who have already continued with disciplinary proceedings during the partial lockdown at the absence of the chosen representatives of the employees are requested to consult with the office of the Commissioner of Labour for the appropriate guidance.
Submission of Notices/Layoffs applications
We encourage employers to submit their notices and/or lay-off applications online
using the contact details below
Cellphone Number: 7606 4209
Email Address: email@example.com OR firstname.lastname@example.org