During the course of recent months, South African Parliament has considered four bills proposing significant changes to South Africa’s labour legislation. These are the National Minimum Wage Bill, the Basic Conditions of Employment Amendment Bill (the “BCEA Bill”), the Labour Relations Amendment Bill (the “LRA Bill”) and the Labour Laws Amendment Bill.
All four bills have been passed by the National Assembly and sent to the National Council of Provinces (“NCOP”) for concurrence. On 19, 20 and 26 June 2018, public hearings were held to consider the National Minimum Wage Bill, the BCEA Bill and the LRA Bill. It has been indicated that the NCOP is currently considering the bills. Below, we consider the BCEA Bill and, in particular, those provisions of the bill that significantly extend the jurisdiction of the Commission for Conciliation Mediation and Arbitration (“CCMA”) to enforce the provisions of the BCEA and the proposed National Minimum Wage Act.
Claiming the underpayment and/or non-payment of salaries: the current position
When employees are faced with the underpayment or non-payment of salaries, they have three potential causes of actions available to them:
1. obtaining a compliance order from the Department of Labour
2. In terms of section 32(3) of the BCEA, an employer must pay an employee his or her remuneration no later than seven days after the completion of the period for which the remuneration is payable. Non-payment within this period, or the underpayment of salary, will be in breach of this section.
Section 68 states that if a labour inspector has reasonable grounds to believe that an employer has not complied with any provision of the BCEA (including section 32(3)), the inspector may endeavour to secure a written undertaking by the employer to comply with this provision. Should such an undertaking be given, but the employer subsequently fails to comply with the undertaking, the Director-General of Labour may apply to the Labour Court for an order directing the employer to comply with the undertaking.
Alternatively, section 69 of the BCEA provides that a labour inspector may issue a compliance order where the inspector has reasonable grounds to believe that an employer has not complied with any provision of the BCEA, including section 32(3). Should the employer fail to comply with a compliance order within the specified time period, the Director-General of Labour may apply for the compliance order to be made an order of court.
2. alleging an unfair labour practice
Employees may also choose to identify the underpayment or non-payment of their salary as an unfair labour practice relating to the provision of a benefit and refer a dispute to the CCMA in this regard.
3. a contractual claim
Finally, an employee may argue that the underpayment or non-payment of their salary constitutes a breach of contract on the part of the employer and approach the Labour Court or the civil courts for a remedy.
The BCEA Bill amendments: claiming the underpayment and/or non-payment of salaries
The BCEA Bill introduces significant measures to enforce its provisions. These are made all the more important in that these same measures will be utilised to enforce the provisions of the National Minimum Wage Act, 2018. The failure of an employer to pay an employee the national minimum wage will constitute a breach of the BCEA. Below, we highlight significant amendments to the bill:
Section 68 will be amended to provide that, if an employer fails to comply with a written undertaking it has given, the Director-General may apply to the CCMA to make that written undertaking a CCMA award. It will no longer be necessary for the Director-General to take the time-consuming approach of applying to the Labour Court for the undertaking to be made an order of court.
Similarly, section 69 will be amended to provide that an employer must comply with a compliance order unless the employer has referred a dispute concerning the compliance order to the CCMA. If such a dispute is referred to the CCMA, it will arbitrate the dispute in terms of section 73 of the BCEA.
Section 73 will, in turn, be amended to provide that the Director-General may apply to the CCMA for a compliance order to be made a CCMA award if an employer fails to comply with a compliance order.
Linked to the above are proposed amendments to section 64, which deal with the powers of labour inspectors. This section will be amended to empower inspectors to refer disputes to the CCMA concerning a failure to comply with the BCEA, 1997, the National Minimum Wage Act, the Unemployment Insurance Act, 2001 and the Unemployment Insurance Contributions Act, 2002.
The above amendments constitute a significant extension of the jurisdiction of the CCMA, as it will be the primary body enforcing the provisions of the BCEA and the National Minimum Wage Act.
However, the proposed introduction of section 73A into the BCEA extends the jurisdiction of the CCMA even further. It provides that, despite section 77 of the BCEA, any person earning below the threshold amount prescribed in section 6(3) of the BCEA may refer a dispute to the CCMA concerning the failure to pay any amount owing to that person in terms of the BCEA, the National Minimum Wage Act, 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 be able to enforce the provisions of the National Minimum Wage Act and the provisions of the BCEA (at least in so far as it deals with the payment of a sum of money) without the assistance or intervention of the inspectors of the Department of Labour. It also means that these employees will be able to enforce contractual rights through CCMA arbitration rather than referring cases to the courts.
The BCEA Bill has not set out the specificities of how an employee will approach the CCMA and whether a procedure similar to that utilised for referrals in terms of the Labour Relations Act, 1995 will apply. This will presumably be dealt with in regulations.
The purpose of the amendments is to provide a cheaper and more expeditious method of enforcing the provisions of the BCEA, the National Minimum Wage Act and other statutes. The Department of Labour has stated that employees will benefit the most from the amendments as they seek to provide enforcement measures in the most effective manner possible.
However, where employees will benefit from these amendments, the CCMA will bear its costs. There can be little doubt that it will place further strain on the CCMA’s resources, especially if one takes into account that recent amendments to the Employment Equity Act, 1998 have extended the jurisdiction of the CCMA to arbitrate disputes that arise from the provisions of this Act.