NATIONAL MINIMUM WAGE ACT AND ENFORCEMENT AT THE CCMA

On 07 February 2022, the Minister of Employment and Labour (“the Minister”) published increases to the national minimum wage in the Basic Conditions of Employment Act 75 of 1997 (“BCEA”). 

The amendments to the National Minimum Wage Act 9 of 2018 (“NMWA”) came into effect on 01 March 2021. 

The new amendments to the Act will entitle farmworkers and domestic workers to earn a national minimum wage of R23.19 (twenty-three rand and nineteen cents) per hour. In addition, workers employed on an expanded public works programme will now be entitled to a minimum wage of R12.75 (twelve rand and seventy-five cents) per hour. Workers who have concluded learnership agreements contemplated in section 17 of the Skills Development Act, 1998, are entitled to the allowances contained in Schedule 2. 

This new minimum wage structure will enable farmers to hire inexperienced workers at a lower rate rather than hiring experienced farmworkers. This makes it financially, and economically more appealing for unemployed youth to enter the job market. 

It is specifically important to mention that employers are advised that Section 15 of the NMWA makes provision for employers to apply for an exemption from the national minimum wage. When making such an application, the employer will be required to prove the following: - 

1. That the employer cannot afford to pay the minimum wage; and 

2. Meaningful consultation has taken place with every representative trade union, or with the employees themselves, in the absence of a trade union. 

It is worth noting that such an application could be extremely time consuming, and in most cases the exemption granted would not be more than 10% (ten percent). The exemption will remain valid for a period of 12 month, after which another application for exemption would have to be made by the employer. 

The NMWA (s4(8)) provides that it is an unfair labour practice for an employer to unilaterally alter hours of work or other conditions of employment to avoid paying the national minimum wage. In this instance, employees can refer such disputes to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) within 90 days from the date on which the dispute arose. 

Written by: 

DUNSTAN FARRELL