Public holidays, emergency work and annual leave are covered in clauses 17 – 20 of Sectoral Determination 5 : Learnerships.
Public Holidays, Emergency Work and Annual Leave Pay
Learners are entitled to public holidays and annual leave. There may be times when learners are required to do emergency work and employers respond by paying learners for this time.
Read the clauses to understand precisely how these three areas are regulated in order to be fair for all Learnership parties.
- (1) An employer may not require a learner to work on a public holiday except in accordance with an agreement.
(2) If a public holiday falls on a day on which a learner would ordinarily work, an employer must pay-
(a) a learner who does not work on the public holiday, at least the allowance that the learner would ordinarily have received for work on that day;
(b) a learner who does work on the public holiday-
(i) at least double the amount referred to in paragraph (a); or
(ii) if it is greater, the amount referred to in paragraph (a) plus the amount earned by the learner for the time worked on that day.
(3) If a learner works on a public holiday on which the learner would not ordinarily work, the employer must pay that learner an amount equal to-
(a) the learner’s daily allowance; plus
(b) the amount earned by the learner for the work performed that day.
(4) An employer must pay a learner for a public holiday on the learner’s usual pay day.
(5) If a shift worked by a learner falls on a public holiday and another day, the whole shift is calculated to have been worked on the public holiday. If the greater portion of the shift was worked on the other day, the whole shift is calculated to have been worked on the other day.
In terms of section 2(2) of the Public Holidays Act, 1994 (Act 36 of 1994), a public holiday is exchangeable for any other day, which is fixed by agreement or agreed to between the employer and the employee.
- (1) An employer may only require or permit a learner to work in excess of the limits on working times prescribed in clauses 8 to 17 in order to perform work which is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary working hours of work.
(2) Any work that any learner performs in terms of subclause (1) must be remunerated-
(a) at overtime rates in accordance with section 10, or
(b) if it is performed on a Sunday or on a public holiday at the applicable rate in terms of clause 15 or 17 respectively.
- (1) A learner who has entered into a learnership agreement in respect of learnership requiring more than 120 credits is entitled to one week’s paid leave for every 40 credits that the learner earns during the learnership or every four months worked whichever is the lesser.
(2) A learner is entitled to take leave referred to in subclause (1) during learnership.
(3) A learner who has accumulated sufficient leave is entitled to take up to three weeks leave consecutively in any year of the learnership.
(4) Unless a learner elects to accumulate leave for the purpose of subclause (3), an employer must grant leave not later than four months after the leave was earned.
(5) An employer may not require or permit a learner to take annual leave during-
(a) any other period of leave to which the learner is entitled in terms of clauses 21, 24 and 26; or
(b) any period of notice of termination of learnership.
(6) Despite subclause (5), an employer must permit a learner, at the learner’s written request, to take leave during a period of unpaid leave.
(7) An employer may reduce a learner’s entitlement to leave by the number of days of occasional leave on full remuneration granted to the learner at the learner’s request.
(8) An employer must grant a learner an additional day of paid leave if a public holiday falls on a day during a learne(r’s annual leave on which the learner would ordinarily have worked.
(9) An employer may not require or permit a learner to work for the employer during any period of annual leave.
(10) Leave must be taken-
(a) in accordance with an agreement between the employer and learner;
(b) if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this clause.
(11) An employer may not pay a learner instead of granting paid leave in terms of this clause except-
(a) on termination of learnership; and
(b) in accordance with clause 31(b).
PAY FOR ANNUAL LEAVE
20(1) An employer must pay a learner leave pay at least equivalent to the remuneration that the learner would have received for working for a period equal to the period of annual leave, calculated at the learner’s rate of remuneration immediately before the beginning of the period of leave.
(2) For the purposes of calculating a learner’s leave pay, a learner’s remuneration-
(a) includes the cash value of any payment in kind that forms part of the learner’s remuneration unless the learner receives that payment in kind during the period of leave; but
(ii) allowances paid to a learner for the purposes of enabling a learner to work; and
(iii) any discretionary payments not related to the learner’s hours of work or work performance.
(3) An employer must pay a learner leave pay-
(a) before the beginning of the period of leave; or
(b) by agreement, on the learner’s usual pay day.