Employers have been faced with a “BCEA Form 15” regarding an application for a compliance order to be made an arbitration award in terms of the New Minimum Wage Act and are unaware of what to do once a form of this nature has been received. In light of the new amendments to the Labour Relations Act and the Basic Conditions of Employment Act (“BCEA”), a new Rule 31B has been added to the CCMA Rules in relation to what should be included in an application for a compliance order or written undertaking to be made an arbitration award. The process regarding filing of documentation and the hearing that could follow, are also included in this Rule.
In terms of Section 73 of the BCEA, which allows for a compliance order to be made an order of the Labour Court, it has been amended to allow the CCMA to make the said order an arbitration award. If an employer has received a compliance order and fails to comply within 14 days of receiving the order, the Director-General may apply to the CCMA in terms of Rule 31B for the compliance order to be made an arbitration award. The application to the CCMA can only be referred after the date on which the employer was required to comply with the order.
Accordingly, the rules apply to an application for a written undertaking to be made an arbitration award in terms of Section 68(3) of the BCEA pertaining to written undertakings made by the employer and an application for a compliance order, issued by a Labour Inspector to be made an arbitration award in terms of Section 73(1) of the BCEA.
An application must be brought on the prescribed form, “BCEA Form 15”, whereby the following information should be supplied by the Applicant:
- Applicant’s name and authority;
- The date on which the written undertaking was secured or compliance order was issued;
- The date on which the employer ought to have complied with the above;
- Whether the employer has failed to fully or partially comply with either the written undertaking or compliance order and where the employer partially failed to comply with the undertaking or compliance order, the relevant provisions which the employer has failed to comply with.
- The relief sought.
The above application must be supported by a copy of the undertaking or compliance order; proof that the compliance order was served onto the employer in accordance with the BCEA; if applicable any documents related to securing a written undertaking or issuing a compliance order, including a complaint or grievance or an inspection report or notes made during an inspection. If the inspector is not the person signing the prescribed form, a confirmatory affidavit must be submitted by the inspector and any other relevant documentation. The prescribed form and all the supporting documents must be delivered to the CCMA proving that a copy of the application has been served onto all parties who have an interest in the matter including the employees and the employer.
If you have received a BCEA Form 15 application, what should you do? Subject to the provisions of the BCEA an employer may object to a written undertaking or compliance order being made an arbitration award by serving and filing an affidavit to the CCMA, setting out the grounds for the objection within 5 days from the date the application was served onto the employer. The CCMA will determine the application by considering the documentation delivered. If the Commissioner considers it appropriate, he/she may request a date and time to appear.
Should you have any further questions regarding the BCEA Form 15, please contact your nearest CEO Office.
Article by: Melissa Strydom
Legal Assistant – Durban