One of the responsibilities of the Department of Employment and Labour is to ensure that all employers adhere to the Basic Conditions of Employment Act (BCEA) and the National Minimum Wage Act (NMWA). These Acts prescribe the minimum conditions of employment, including working hours, sick leave, annual leave, and the determined minimum wage.
A compliance order may be issued if an employee believes their employer is not adhering to the minimum terms and conditions set forth in the Basic Conditions of Employment Act and the National Minimum Wage Act (NMWA). In such cases, the employee can lodge a complaint with the Department of Employment and Labour.
Whether you choose to comply or oppose the compliance order in terms of Chapter 10 of the Basic Conditions of Employment Act, the Minister has the authority to appoint a Labour Inspector who has powers to investigate alleged non-compliance by the employer, including:
- Inspecting records.
- Entering premises without a warrant or prior notice to verify compliance with the BCEA.
- Administering oaths and requiring that all oral information provided by the employer be given under oath or affirmation.
- Questioning any person associated with the business.
- Making copies of documents on the premises and removing documents to make copies if necessary.
- Issuing orders compelling the employer to provide certain documents by specified deadlines.
Upon receiving a compliance order from the Department of Employment and Labour, employers essentially have two courses of action:
- Comply with the order:
The employer must review the compliance order carefully. The Labour Inspector will outline the specific contraventions, required corrective action and deadline for compliance. The deadline is fourteen (14) days from the date of issuing the compliance order. If the decision is made to comply, the employer should contact the relevant Labour Inspector to discuss the issues raised in the order and determine the steps needed to rectify the non-compliance to ensure they comply with the timeframe. It is advisable to demonstrate a willingness to cooperate with the designated official to resolve the matter promptly. In this case, the Labour Inspector may “secure a written undertaking” from the employer to resolve the issues amicably.
- Oppose the order:
If the employer chooses to oppose the compliance order, it is crucial to ensure that there is no breach of the Basic Conditions of Employment Act (BCEA) or the National Minimum Wage Act (NMWA). An employer may then refer the compliance dispute to the CCMA to oppose it. Failing to comply may incur additional costs, such as fines and penalties. Simply failing or refusing to act on a compliance order will likely lead to an enforceable arbitration award against the employer.
Given the urgency and limited options regarding compliance orders, employers should seek legal advice promptly to determine the most appropriate course of action.
Article by Joanie Prinsloo
Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)