I have a client who is paying her workers weekly, based on actual hours worked. So there is no fixed salary. She has a problem with the approaching annual shutdown and the associated annual leave pay. Some of her workers are often absent from work (unpaid leave) for long stretches of time. Yet her employment contract still provides for 15 working days of annual leave at full pay, per 12 month period.
Now, clearly it's unfair to the employer to pay an employee who frequently doesn't show up for work the full pay for 15 working days. But that doesn't say anything about the legality.
The BCEA does say that you can use 1 hour / day of leave per 17 hours / days worked, instead of the 15 days a year. But that's only by agreement and her employment contracts specifically state that 15 days are given at full pay, so I doubt this is a solution?
There is also section 35(4) of the BCEA, which states that the past 13 weeks of pay may be used to determine the rate for leave pay where wages fluctuate significantly between periods. So, if the employee only worked half the days he should have, then the 15 days of leave will still be paid out, but now only at half the rate. Is it OK to do this?
Does anyone have some legal ideas that can help make the situation more fair, or some comments about what I mentioned above? Any help is greatly appreciated!