***The new amendments to the Basic Conditions of Employment Act significantly extend the jurisdiction of the CCMA to enforce the provisions of the BCEA and the New Minimum Wage Act.
The previous position when claiming the underpayment and/or non-payment of salaries
In terms of section 32(3) of the BCEA, an employer must pay an employee their remuneration no later than seven days after the completion of the period for which the remuneration is payable. Non-payment within this period, or under-payment of salary, will be in breach of this section.
Section 68 stated that if a labour inspector had reasonable grounds to believe that an employer has not complied with any provision of the BCEA (including section 32(3)), the inspector could endeavour to secure a written undertaking by the employer to comply with this provision. Should such an undertaking be given, but the employer subsequently failed to comply with the undertaking, the Director-General of Labour could apply to the Labour Court for an order directing the employer to comply with the undertaking.
As an alternative, section 69 provided that a labour inspector could issue a compliance order where the inspector had reasonable grounds to believe that an employer has not complied with any provision of the BCEA, including section 32(3). If the employer failed to comply with a compliance order within the specified time period, the Director-General could apply for the compliance order to be made an order of court.
Alleging unfair labour practice
Employees could 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.
Lastly, employees could argue that the underpayment or non-payment of their salary constituted a breach of contract on the part of the employer and approach the Labour Court or the civil courts for a remedy.
New position on claiming for underpayment and/or non-payment of salaries under the amendments
The amendments to the BCEA introduce 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 9 of 2018. Under the amendments, the failure of an employer to pay an employee the national minimum wage will constitute a breach of the BCEA. Some of the significant amendments are highlighted below.
Section 68(3) has been 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 is no longer 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 the court.
Similarly, section 69 has been 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 has, in turn, been 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.
The CCMA has the discretion to issue an arbitration award requiring the employer to comply with a compliance order if it is satisfied that the compliance order was served on the employer and the employer has not referred a dispute in terms section 69 above.
Linked to the above are the amendments to section 64, which deals with the powers of labour inspectors. This section has been 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.
From the above amendments, it is clear that the jurisdiction of the CCMA has been significantly extended, as it will now be the primary body enforcing the provisions of the BCEA and the National Minimum Wage Act.
The 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 effect of the above amendments is that it provides a cheaper and more expeditious method of enforcing the provisions of the BCEA, the National Minimum Wage Act and other statutes. Employees will benefit the most from the amendments as they seek to provide enforcement measures in the most effective manner possible.
NB: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information.
By: Zinhle Mavuso (Candidate Attorney)