In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.
In terms of s34(2) of the BCEA, a deduction in terms of s34(1) can only be made if:
- the loss/damage occurred in the course of employment and the employee is at fault
- the employer followed a fair procedure – i e give the employee a reasonable opportunity to show why deductions should not be made
- the total amount of debt does not exceed the actual amount of loss/damage
- the total deductions do not exceed a quarter of the employee’s remuneration in
money
How did the labour appeal court, in North West Provincial Legislature and Another v National Education, Health and Allied Workers Union obo Members (2023) 34 SALLR 351 (LAC) apply the aforesaid statutory provisions if the employer erroneously made payment to employees while they were participating in a strike?
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The labour appeal court adopted, inter alia, the following approach:
- the principle of no work no pay, applicable during a strike, whether lawful or unlawful (ito s67(3) of the LRA) is not in conflict with the aforesaid statutory provisions of the BCEA
- there is a difference between an employer’s entitlement not to pay during a strike ito s67(3) of the LRA and an employer’s entitlement to deduct from the remuneration of employees ito s34 of the BCEA
- although there is compliance with a fair procedure as required by s34(2)(b) of the BCEA, in the absence of such fair procedure leading to an agreement and in the absence of the other requirements being complied with (i e a law, collective agreement, court order arbitration award), the right to make deductions is not triggered
- the no work, no pay principle, contemplated in s67(3) of the LRA, is not a law contemplated in s34(1)(b) of the BCEA
