Given the new national minimum wage envisaged by our government, businesses will have to make sure that their employment policies and procedures are comprehensive as some unions and employees might see this as an ideal opportunity to exploit the situation.
Employers who fail to comply with the applicable legislation might risk being caught up in preventable disagreements and legitimate action.
The National Minimum Wage Act (NMWA), currently the National Minimum Wage Bill (the bill), recently created much confusion and uncertainty. The effective date had been 1 May 2018 but was subsequently postponed until further notice by our Labour Minister Mildred Oliphant.
What is the national minimum wage (NMW)?
- In terms of Section 4, the NMW will be the amount referred to in Schedule 1, adjusted annually.
- Every worker is entitled to a wage of an amount not less than the NMW.
- The NMW may not be waived and takes precedence over any contrary provision in any Contract, Collective Agreement or Law, except a Law amending this Act.
- The NMW must be a term of the employee’s contract, except to the extent that the Contract, Collective Agreement or Law provides for a wage that is more favourable to the worker.
- It will be deemed an unfair labour practice if an Employer unilaterally alters wages, hours of work or other conditions of employment relating to the implementation of the NMWA.
What is the main objective of the NMWA?
The main objective of NMWA is to provide for a national minimum wage to advance economic development and social justice by improving the wages of the lowest paid workers, protecting workers from unreasonably low wages, promoting collective bargaining and supporting economic policy.
How is the minimum wage calculated?
1. A wage for purposes of the NMWA is the amount paid in money for ordinary hours worked and is calculated as follows:
- Any payments that enable an employee to work, including any transport, equipment, tool, food or accommodation allowance;
- Payment in kind, including board or accommodation;
- Gratuities, including bonuses, tips or gifts; and
- Any other prescribed category of payment.
If an employee is paid on a basis other than the number of hours worked, he/she may not be paid less than the NMW for ordinary hours worked.
2. The NMW is R20,00 for each ordinary hour worked; however, the following categories of employees have been excluded:
- Farmworkers – R18,00 per hour;
- Domestic workers – R15,00 per hour;
- Workers employed in the extended works programme – R11,00 per hour; and
- Workers who have completed a leadership are entitled to the allowances referred to in Schedule 2 of this Act.
Exemptions from the NMW
In terms of Section 18 of the Bill, an Employer or a registered Employers’ Organisation acting on behalf of its members may apply for an exemption from paying the NMW. On 7 February 2018, the Department of Labour indicated that it was in the process of finalising the draft exemption regulations.
The regulations will contain:
- the procedure for obtaining an exemption;
- he details to be submitted with an exemption application;
- the obligation of Employers to consult with Employees or their Trade Unions;
- the criteria for evaluating an exemption;
- the period within which an exemption application must be submitted;
- the period during which a decision must be made regarding the exemption; and
- any other matter pertaining to the granting and declining of an exemption.
How will the NMW be enforced?
Recent amendments to Sections 69 and 73 of the Basic Conditions of Employment Act deal with enforcement of the NMW. The Director-General of the Department of Labour has been empowered to refer non-compliant employers to the CCMA directly, as opposed to the Labour Court. The CCMA may, as per the nature of the referral, render an arbitration award which can be made an Order of the Labour Court in respect of non-compliance with the NMWA.
Written by: Jared Francis, KZN Labour Manager for SERR Synergy. He holds an LLB degree amongst other qualifications and is an admitted attorney.
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