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Department of Labour to unveil regulations on NMW exemptions

Feb 7, 2018
Department of Labour to unveil regulations on NMW exemptions

The Department of Labour is finalising the drafting of exemption regulations ahead of the enactment of the national minimum wage, Unathi Ramabulana, Deputy Director of Employment Standards Unit told workers.

Addressing a workers engagement/briefing session on the implementation of the national minimum wage (NMW) and amendments to the Basic Condition of Employment Act (BCEA) and the Labour Relations Act (LRA) at Savoy Hotel and Conference Centre in Mthatha, Ramabulana said the Department will, once the regulations have been published conduct training sessions to educate stakeholders.

The Bill provides for the Minister of Labour to grant exemptions from the NMW – the exercise of which is to be regulated by a regulation. The regulation will include the procedure for exemption, the obligation on employer to consult with employees or their trade unions, the criteria for evaluating exemptions, and documents to be submitted among other factors.

Ramabulana said the exemption application will be subjected to thorough audits.

She said South Africa currently has no less than 10 Sectoral Determinations (SDs) with a myriad of varying wage structures, adding a workload to the inspectorate and making them (SDs) cumbersome to enforce.

The NMW Bill, amendments to the BCEA and LRA Bills are currently in Parliament for review.

Department of Labour Director of Collective Bargaining, Ian Macun reiterated that a single minimum wage would improve compliance and would make a difference in the living conditions of the poor.  

“The national minimum wage is a floor. Nobody will earn below the minimum wage. It will also be illegal of an employer to unilaterally change conditions of employment. Workers can exercise their right and take their dispute to CCMA,” Macun said.

The NMW at R20 per hour will be the minimum at which it will be implemented and enforced from 1 May 2018. The NMW will be reviewed annually. The rate will be applicable to all sectors. Sectors excluded from the R20 per hour level for now are:

  • NMW for Farm/Forestry workers: R18 per hour (90% of the NMW)
  • NMW for domestic workers: R15 per hour (75% of the NMW)
  • NMW for workers on the Expanded Public Works Programme:  R11 per hour (55% of the NMW)

Also, learnerships will for now have a separate arrangement.

The transitional phase to bring these sectors to a NMW regime is expected to take at least two years.

Macun cautioned that the NMW does not include payment of allowances (such as transport, tools, food or accommodation) payments in kind (board or lodging), tips, bonuses and gifts.

The proposed legislation also makes provision for the Minister to exclude other forms of payment by regulation.

Ramabulana said the introduction of the NMW Bill has necessitated changes to BCEA, so as to ensure alignment.

In the BCEA the levels of violation of sectoral determination have been found to be very high.

The amended legislation will extend the provisions for monitoring and enforcement by the labour inspectorate to apply to NMW and the Unemployment Insurance. The jurisdiction of the CCMA will be extended to include enforcement and claims for underpayment of the BCEA, the NMW, Unemployment Insurance and claims from contracts or collective agreements.

Meanwhile, the LRA amendments come from a process of engagement through NEDLAC on the state of the labour relations environment and, in particular, to address violent and protracted strikes.

Macun said the law requires of unions to conduct balloting before engaging in industrial action. He said: “balloting can be done. Balloting does not seek to undermine processes. Every member of a union has a right to be able to decide and be protected”.

The new LRA dispensation is intended to be guided by a Code of Good Practice on Collective Bargaining, Industrial Action and Picketing. This will provide practical guidance on collective bargaining, the resolution of disputes of mutual interest, the resort to peaceful industrial action and picketing processes.

Social partners at Nedlac have also agreed on an Accord on Collective Bargaining and Industrial Action to prevent violence, intimidation and damage to property. The Accord also outlines undertakings the signatories commit to which aim at expediting dispute resolution, minimising conflict in labour relations and building capacity for implementing Code of Good Practice.

The Department of Labour has been on a national roadshow hosting worker briefing sessions to educate workers on the implementation of NMW and inform them on the implications of proposed amendments to the Basic Conditions of Employment Act, the Labour Relations Act, the coming into effect of the Accord on Collective Bargaining and Industrial Action and the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing.

The worker engagement/briefing sessions started last November in Johannesburg. The briefing sessions have been held in Pretoria, Cape Town, George, Pietermaritzburg, Richards Bay, Durban, Tzaneen, Polokwane, Mbombela, Emalahleni, Klerksdorp, Rustenburg, Bloemfontein and Welkom.

The next briefing session on NMW, amendments to BCEA and LRA will be held tomorrow (08 February) in East London at Premier Hotel Regent, 22 Esplanade.

The briefing sessions on NMW and amendments to labour laws are held from 10:00-13:00.