WHAT SHOULD YOU DO IF YOUR EMPLOYER DOES NOT PAY YOU THE PRESCRIBED MINIMUM WAGE, IN TERMS OF THE NATIONAL MINIMUM WAGE ACT?

The National Minimum Wage Act 9 of 2018 (Wage Act) became effective from the 1st of January 2019 this was to protect workers from “unreasonably low wages” and to promote collective bargaining it applies to all employers unless there is a Sectoral Determination. The Minister may make a sectoral determination establishing basic conditions of employment for employees in a sector and area, this includes the minimum wage. As an example the Minister may make a sectoral determination for the Automotive Industry and they will have a different amount set for the employees’ wages to the prescribed minimum wage. As of the 1st of March 2020 the minimum wage was increased for the first time since its introduction in 2019.

The minimum hourly wage increased by approximately 3.8 percent and this is in line with the inflation rate. Below are the new minimum wages due to come into effect on 1 March 2020, according to The Minister of Employment and Labour, Thula Nxesi.

  • For work not covered by a special determination: R20.76 per hour.
  • For domestic workers: R15.57 per hour.
  • For contract cleaning staff: between R20.83 and R22.84 per hour, depending on the geographic area.
  • For farm workers: R18.68 per hour.
  • For workers in government’s expanded public works programme: R11.42 per hour.

If your employer does not pay the prescribed minimum wage, there are options available. Some options include approaching the Department of Labour or approaching the CCMA for assistance.

Should the Department of Labour be approached they are likely to appoint a Labour Inspector. The Labour Inspector has a right to inspect the employer’s premises, during the inspection the employer will have to produce all documents that they are legally required to keep in their possession, this is in terms of labour legislation and this includes documentation relating to remuneration of employees. The Labour Inspector can then make a reasonable determination and should the inspector have reasonable grounds to believe that there is non-compliance with labour legislation, the inspector can issue a Notice of Non-Compliance. This means that the employer is still awarded a specific time frame to rectify their non-compliance.

After the determined time period prescribes and the employer still has not complied with the Compliance Order, the Compliance Order will then be referred to the CCMA. The CCMA will then issue an Arbitration Award. An Arbitration Award requires the employer to comply with a Compliance Order. An Arbitration Award will only be awarded if the CCMA Commissioner is satisfied that the Compliance Order was served on the employer and the employer did not refer the order for dispute to the CCMA.

The employee also has another option should they decide not to approach The Department of Labour. The employee can directly refer the dispute to the CCMA, this is because the CCMA has now obtained jurisdiction in terms of section 73 of the Basic Conditions of Employment Act to directly deal with a matter where employees claim that monies are owed to them in terms of either The Wage Act, a Collective Agreement or a Sectoral Determination.

The CCMA has a right to schedule the dispute for conciliation, the commissioner will have to remain impartial and will have to assist both parties to try and reach a resolution. If this is unsuccessful the Commissioner is required to issue a certificate stating that the parties have failed to reach a resolution and the dispute remains unresolved. The matter will now have to be arbitrated. The CCMA will have to investigate if there are any reasonable grounds of non-compliance. If there are grounds of non-compliance an Arbitration Award will be issued within 14 days of the conclusion of the Arbitration Proceedings, the employer will then be instructed to comply with the Wage Act and pay any outstanding money due to employees.

The National Minimum Wage Act enables the National Minimum Wage Commission to review the minimum wage each year. The commission has to take into account the views of South African trade unions. Unions had sought an increase of at least 12.5% in the minimum wage for 2020 and were dissatisfied with the 3.8 percent increase.  COSATU, FEDUSA, and NACTU labelled the minimum wage increase by the National Minimum Wage Commission as “Shocking”

However National Treasury has hit back at the unions and stated that the stipulated increase is to protect the employment rate in an already volatile economy.  National Treasury has especially singled out domestic workers and stated that there will be a high risk of unemployment if the minimum wage for domestic work is increased dramatically.

Due to the dissatisfaction of the unions, inflation and the high unemployment rate   the minimum wage is likely to be reviewed again in the coming years if not annually.

BY: Alisha Rambaran (Randles Attorneys)

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