Section 73A of the BCEA came into effect on 1 January 2019 and provides that employees earning below the threshold of R 205 433.30 per annum, may now refer disputes to the CCMA relating to employers’ failure to pay any amounts owing to that employee in terms of the Basic Conditions of Employment Act, the National Minimum Wage Act, a contract of employment, a sectoral determination or a collective agreement. Employees earning above the earnings threshold may refer their claims to the Labour Court, High Court, Magistrates’ Court or Small Claims Court.

 

The NMWA applies to all workers and their employers except members of the National Defence Force, the National Intelligence Agency and the South African Secret Service. This means that –

  • every worker, except those specifically excluded, is entitled to at least the minimum wage (currently R20,76);
  • every employer may not pay wages that are below the minimum wage;
  • the national minimum wage cannot be reduced by contract, collective agreement or law;
  • the national minimum wage constitutes a term of the worker’s contract except to the extent that the contract provides for a more favourable wage; and
  • it is an unfair labour practise for an employer to unilaterally alter hours of work or other conditions of employment in implementing the national minimum wage.

 

The CCMA will firstly Conciliate the dispute related to the failure to pay an employee/worker. Should Conciliation be unsuccessful, the CCMA Commissioner will certify that the dispute remains unresolved and the Arbitration will commence immediately after Conciliation. Therefore no objections are allowed to the con/arb process.

 

If an employee institutes proceedings for unfair dismissal, the Labour Court or Arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act or the National Minimum Wage Act, 2018. Similarly, a dispute concerning any amount that is owing to an employee as a result of a contravention of the BCEA or the NMW Act, may be initiated jointly with a dispute instituted by that employee over the entitlement to severance pay.

 

An employer shall be liable to pay interest on any amount owing in terms of the BCEA or NMW Act. In terms of section 76A, an employer who pays an employee less than the minimum wage shall be liable to a fine, which shall be an amount greater of twice the value of the underpayment or twice the employee’s monthly wage. For second or further non-compliance, the fine shall be equivalent to an amount that is greater of thrice the value of the underpayment, or thrice the employee’s monthly wage.

 

Article by: Anesta Kruger

Dispute Resolution Official – Durban