It has been nearly three months since the legislature has signed into law the Labour Relations Amendment Act (LRAA), Basic Conditions of Employment Amendment Act (BCEAA) and the National Minimum Wage Act (NMWA).
The BCEAA introduced several measures to enforce its provisions, including that of section 73A. The aforementioned section constitutes a significant extension of the jurisdiction of the CCMA, as it will now be the primary body enforcing the provisions of the BCEA and NMWA.
In terms of section 73, an employee or worker, earning less than the prescribed threshold, may refer a dispute to the CCMA concerning the failure to pay any amount owing in terms of the BCEA, the NMWA, a contract of employment, a sectoral determination or a collective agreement.
The effect of this provision is that employees earning below the section 6(3) threshold will now be able to enforce the provisions of the NMWA and the provisions of the BCEA without the assistance or involvement of the Department of Labour. It also means that these employees will be able to enforce contractual rights through the CCMA arbitration process rather than referring cases to the various courts.
However, an employee or worker, earning in excess of the prescribed threshold, may institute a claim concerning the failure to pay any amount in the Labour Court, the High Court, the Magistrates Court or the Small Claims Court.
Furthermore, the introduction of section 76A of the BCEA provides for the imposition of a fine on an employer who paid an employee less than the national minimum wage, in an amount that is either twice the value of the underpayment or twice the employee’s monthly wage, whichever is greater. If an employer failed to comply with the prescribed minimum wage for a second or further time, a fine will be in the amount that is thrice greater the value of the underpayment, or thrice the employee’s monthly wage.
The purpose of the amendments is to provide a cheaper, more expeditious method of enforcing the provisions of the BCEA, the NMWA and to avoid disputes (or rather claims) being split into proceedings before different forums. It’s clear that employees will benefit most from the abovementioned provisions, but this might be to the detriment of the CCMA as this will put more strain on the CCMA’s already existing heavy caseload.
Article by: Erenst du Toit
Provincial Manager – Pretoria