Changes to employment laws

Just when we thought that we could start thinking about packing up for the holidays, the President had a busy November and assented to four new employment Acts, being

• The National Minimum Wage Act
• The Basic Conditions of Employment Amendment Act
• The Labour Relations Amendment Act
• The Labour Laws Amendment Act.

It is anticipated that the proclamation dates could be as early as January 1, 2019, which does not leave employers with much time to familiarise themselves with the proposed amendments.

In summary, this is what employers can expect:

National Minimum Wage Act

The National Minimum Wage Act applies to workers and their employers, except members of the South African National Defence Force, the National Intelligence Agency and the South African Secret Service. The definition of ‘worker’ is new in the employment space. Worker will mean ‘any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind’.

The national minimum wage takes precedence over any contrary provision contained in any employment contract, collective agreement, sectoral determination or law. This means that contracting parties may not agree on a wage lower than the minimum wage. Such a provision will not be valid or enforceable.

What are the minimum prescribed wages?

• Farm workers will be entitled to a minimum wage of R18 per hour.
• Domestic workers (including gardeners, caregivers and drivers employed by a household) will be entitled to a minimum wage of R15 per hour.
• Workers employed on an expanded public works programme (programmes to provide public or community services through a labour intensive programme determined by the Minister), will be entitled to a minimum wage of R11 per hour.
• Workers who have concluded learnership agreements as defined in section 17 of the Skills Development Act will be entitled to certain allowances that are set out in schedule 2 of the National Minimum Wage Act.
• All other workers will be entitled to receive R20 for each ordinary hour worked. The Basic Conditions of Employment Act, 1997 (BCEA) currently provides that an employee’s ordinary hours of work may not exceed 45 hours in any week and nine hours in any day if the employee works for five days or fewer in a week. Employees who work six days a week may not work ordinary hours that exceed eight hours in any day. Thereafter the standard provisions contained in the BCEA which relate to overtime will apply, in respect of employees who earn below the earnings threshold of R205 433,30 per year.

The national minimum wage is subject to an annual review pursuant to recommendations being made to the Minister of Labour by the commission appointed for this purpose. The National Minimum Wage Act provides for an exemption mechanism for employers who can motivate as to why they are unable to meet the minimum wage level and why they should be granted the exemption. Such an exemption may not be granted for longer than a year. In addition an employer who fails to pay in accordance with the national minimum wage will be required to pay the employee an amount twice the value of the under-payment or twice the employee’s monthly wage, whichever is the greater. Fines will be imposed for non-compliance.

Basic Conditions of Employment Amendment Act

Amongst the most significant changes to the BCEA is that the amendment act provides for the enforcement of the National Minimum Wage Act and extends the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (CCMA).

Any employee or worker (as defined in the National Minimum Wage Act) who works for less than four hours on any day must be paid for four hours of work on that day. This applies to employees who earn less than the earnings threshold currently set at R205 433.30 per year. If there is a sectoral determination that prescribes a higher minimum wage than the minimum wage in terms of the National Minimum Wage Act, the wages and benefits set out in that sectoral determination must be increased proportionately whenever the minimum wage is increased.

Labour inspectors now have the power to refer disputes to the CCMA for non-compliance with the BCEA and the National Minimum Wage Act.

A worker may also refer a dispute to the CCMA concerning an employer’s failure to pay the prescribed minimum wage, if they earn less than the earnings threshold.

Labour Relations Amendment Act

The Labour Relations Amendment Act provides for the extension of the application of a collective agreement.

It provides for the extension of the application of a collective agreement for a defined period and for the renewal of collective agreements which have a funding provision in respect medical aids, sick pay, dispute resolution funds and more.

Where there is a dispute on picketing rules that apply to a strike or lockout, a CCMA commissioner must attempt to secure agreement between the parties before the period contemplated in section 64(1)(a)(ii) (30 days unless otherwise agreed), expires if there is no collective agreement in place that regulates the picketing.

The Director of the CCMA may appoint an advisory arbitration panel if a strike or a lockout is no longer functional to collective bargaining in that it has continued for a protracted period and no resolution is imminent, if there is an imminent threat to Constitutional rights, or if these rights are being violated by persons participating in or supporting a strike or lockout, or if the continuation of the strike or lockout has the potential to cause a national or local crisis.

Labour Laws Amendment Act

The Labour Laws Amendment Act amends several provisions of the existing BCEA and the Unemployment Insurance Act.

The amendment allows for 10 consecutive days’ parental leave, which has been commonly referred to as ‘paternity leave’ in the media. Either parent may take this parental leave when the employee’s child is born or adopted or placed in their care by a competent court.

Employees will still be entitled to three days’ paid family responsibility leave but only when the employee’s child is sick or in the event of the death of the employee’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling. When an employee’s child is born, the employee will be entitled to the parental leave referred to above.

The wording of these amendments is gender neutral and therefore recognises that any person, irrespective of gender, will be entitled to these benefits.

Parents who adopt a child below the age of two years old will also be entitled to adoption leave of at least ten consecutive weeks, or they may utilise the parental leave described above.

The Labour Laws Amendment Act also recognises surrogacy arrangements under the section headed ‘Commissioning Parental Leave’ and such an employee who is the new parent, will be entitled to parental leave as well.

Conclusion

To avoid fines and uncomfortable inspections from Department of Labour officials, employers need to assess what impact the National Minimum Wage Act will have on its operations. In addition, employers should asses their current employment contracts, collective agreements, staff policies and handbooks and incorporate the required changes in order to ensure that the terms and conditions of employment and employee benefits are in line with these changes. It is anticipated that the vast majority of employment contracts and staff policies will be outdated once the new amendments come into effect. Should you require any assistance in bringing your existing terms and conditions of employment in line with these changes, you can contact anyone without our employment and labour team for assistance.