Unannounced visits by the Dept of Labour in Port Elizabeth

BY TRACEY MOUTON - MAY 24, 2017
Unannounced visits by the Dept of Labour in Port Elizabeth

As has been discussed in the media, the Department of Labour has announced that it shall be conducting unannounced inspections at firms that persistently contravene various Labour Laws within the Port Elizabeth area. 

Section 35 of the Employment Equity Act 55 of 1998, grants Labour Inspectors the authority to enter, question and inspect as provided for in the Basic Conditions of Employment Act. 

Section 65 of the Basic Conditions of Employment Act 75 of 1997 (the BCEA) specifically sets out that a Labour Inspector may without warrant or notice, at any reasonable time, enter:

“a)      Any workplace or any other place where an employer carries on business or keeps employment records, that is not a home;
b)        Any premises used for skills development in terms of the Skills Development Act, 1998 (Act 97 of 1998); or
c)        Any place at which any person provides or purports to provide any employment services as defined in terms of the Skills Development Act, 1998 (Act 97 of 1998).”

At Section 65 (4), the BCEA sets out that:  “if it is practical to do so, the employer and a trade union representative must be notified that the Labour Inspector is present at a work place and of the reason for the inspection”.

Section 66 of the BCEA sets out the powers which the Labour Inspector has to question and inspect.  In this regard, Section 66 states as follows: 

“1.)     In order to monitor or enforce compliance with an employment law, a Labour Inspector may:

a)        Require a person to disclose information, either orally or in writing and either alone or in the presence of witnesses, on any matter to which an Employment Law relates, and require that the disclosure be made under oath or affirmation;
b)        Inspect, and question a person about any record or document to which an employment law relates;
c)        Copy any record or document referred to in paragraph (b), or remove these to make copies or extracts;
d)        Require a person to produce or deliver to a place specified by the Labour Inspector any record or document referred to in paragraph (b) for inspection;
e)        Inspect, question a person about, and if necessary remove, any article, substance or machinery present at a place referred to in Section 65;
f)         Inspect or question a person about any work performed; and
g)        Form any other prescribed function necessary for monitoring or enforcing compliance with an Employment Law.”

The documentation which a Labour Inspector may inspect relate to the policies, procedures and contracts of employment of the employer. 

The Labour Inspector may also ascertain whether the prescribed summary of the Labour Relations Act, Basic Conditions of Employment Act, Employment Equity Act and Occupational Health and Safety Act are made available on Notice Boards to all employees. 

The Labour Inspector may also scrutinise the working hours and meal intervals of employees to ensure that the employees are not being taken advantage of in contravention of the BCEA or any collective agreement which may regulate such hours of work. 

The Labour Inspector may also ask to see the Employment Equity Plan and shall scrutinise same together with UIF records and Workmans Compensation. 

When an employer is confronted with a Labour Inspector’s unannounced visits, the employer may in terms of Section 66 (3) insist that the Labour Inspector produce a certificate which has been issued to him or her which would set out: 

a)        That the person is a Labour Inspector;
b)        Which legislation that Labour Inspector may monitor and enforce; and
c)        Which of the functions of a Labour Inspector that person may perform. 

The importance of the certificate as set out above is that a Labour Inspector may only monitor and enforce legislation for which he or she is authorised. 

Should an employer be confronted with a Labour Inspector who arrives unannounced, it is essential that the employer first ascertain that the Labour Inspector is legitimate.  It is further important to ascertain which of the legislation the Labour Inspector is entitled to monitor and enforce. 

Once this has been completed, the employer must co-operate with the Labour Inspector and allow such inspector the opportunity to view any document it may require and question the employer, managers of the company and also the employees of the company.

It is important to understand that any person questioned by a Labour Inspector must answer all relevant questions lawfully put to that person truthfully and to the best of his or her ability. 

In answering such questions, the answer by the person to a question of a Labour Inspector may not be used in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement.

Given that the announcement by the Department of Labour is targeted at repeat offenders pertaining to the Basic Conditions of Employment Act, the Employment Insurance Fund, the Employment Equity Act, the Labour Relations Act and Occupational Health and Safety Act, it is recommended that those employers who have in their possession compliance orders which have not been complied with and are aware of their contraventions, that they get their house in order.  

The consequences of not complying with a compliance order issued by a Labour Inspector is great given that the Director General may apply to the Labour Court, without further notice to the employer, for the compliance order to be made an Order of Court. 

The Court at that stage will consider any representations made and may award the payment of a fine calculated in terms of Schedule 2 of the Basic Conditions of Employment Act, which schedule provides for the maximum permissible fines which depending on the severity of the infraction could amount to 200% of the amount due and payable.           

More information and advice can be obtained from:

TRACEY MOUTON - DIRECTOR
GOLDBERG & DE VILLIERS INC.
Bird Street, Port Elizabeth
Tel. 041 501 9800