Whether an Employer operates within the scope of the Basic Conditions of Employment Act (BCEA) or is regulated by a Bargaining Council and its consequent Collective Agreement, compliance is a prerequisite that no Employer can shy away from.
In the context of Employers operating outside of the scope of any Bargaining Council, the BCEA prescribes certain minimum conditions of employment which speak to issues such as the National Minimum Wage, working hours and overtime, as examples. Much like the BCEA, each Bargaining Council’s Main Collective Agreement will speak to the same aspects as those indicated above.
Naturally, to ensure that Employers abide by the minimum terms and conditions of employment, whether by the BCEA or respective Bargaining Council regulating it, compliance must be monitored and enforced by the various bodies. Under the guise of the BCEA, the Department of Employment and Labour (DOEL) enforces compliance with the BCEA through the use of Labour Inspectors. These Inspectors attend to the Employer’s premises, peruse specific documentation such as the employment contracts and then ascertain whether the Employer is compliant. Much the same as the DOEL has Inspectors, so too do Bargaining Councils. However, they function under a different name, that being an Agent. Bargaining Council Agents are empowered to conduct site inspections at the Employer’s premises and peruse any relevant documentation to establish whether the Employer complies with the Main Collective Agreement.
When it has been established that there has been non-compliance on the part of the Employer, the Inspector or Agent will issue a Compliance Order indicating the various sections of legislation or clauses of the Main Collective Agreement which are alleged to have been breached. Once a Compliance Order has been issued, in any of the guises already indicated, an Employer must take a proactive approach towards dealing with same. The reason is that an Employer has fourteen (14) days in which to object to the compliance and have same referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for adjudication, failing which the DOEL will apply to certify the Compliance Order and the Bargaining Council Agent will set same down for Arbitration.
It is crucial to object to a Compliance Order within fourteen (14) days if an Employer disagrees with same because the compliance could become an enforceable Arbitration Award. It may also attract fines and penalties to be levelled against an Employer. In the case of a Bargaining Council, most charge an Arbitration fee of roughly R 1 500.00 for attending a compliance Arbitration. This is irrespective of whether the Employer and Agent resolve the matter on the day of the Arbitration.
The question then arises, “What does an Employer do who knows full well that they need to be compliant and would like to resolve the matter instead of incurring potential fines and penalties?” This is where being proactive becomes crucial. Upon receipt and perusal of the Compliance Order and the realisation that the Employer wants to resolve same, it is imperative that the Employer, either through their Employers Organisation such as CEO or through direct contact with the Inspector or Agent, indicates their willingness to resolve the issue(s) raised in the Compliance Order with the relevant Inspector or Agent. This will then circumvent the unnecessary Arbitration fee and will most likely lead to the DOEL not imposing fines or penalties on the Employer.
In most instances, non-compliance, either in terms of the BCEA or the Main Collective Agreement, is purely through unintentional error and can easily be rectified. CEO encourages its Members and Employers to immediately engage with the Compliance Order upon receipt and seek guidance from the CEO to ensure that easily resolvable matters can be sorted out with little fuss.
Article by Daniel van der Merwe
National Collective Bargaining Coordinator