The National Minimum Wage Act (NMWA) came into effect on 1 January 2019, whereby the national minimum wage was set at R20 per hour, with special provisions of R18 per hour (farm workers), R15 per hour (domestic workers), and R11 per hour (Extended Public Works Programme Workers).
The Basic Conditions of Employment Act (BCEA) was amended to confer new enforcement jurisdiction on the Commission for Conciliation, Mediation and Arbitration (CCMA) for NMWA and BCEA disputes, and to hear certain BCEA matters related to payment referred to the CCMA by employees who earn below the Ministerial Threshold of R205 430.33 per annum. Previously such matters could only be included in CCMA referrals related to dismissals.
The BCEA amendments conferred upon the CCMA concurrent enforcement jurisdiction with the courts. This means that the CCMA can convert written undertakings and compliance orders issued by labour inspectors into arbitration awards which are executable through sheriffs. It also means that the Department of Labour officials now have a broader spectrum of enforcement institutions to assist them in serving the public.
The broadening of the enforcement jurisdiction is aimed at speedier enforcement processes to the benefit of an estimated 6 million low-paid workers. Complaints of non-compliance with the National Minimum Wage Act can be referred to the Department of Labour for Labour Inspectors to deal with, or may be referred directly to the CCMA.
The Director of the CCMA, Mr. Cameron Sello Morajane, has welcomed the new jurisdiction changes, stating that this presents a more streamlined and efficient path for speedier resolution of disputes. He has previously called for an integrated approach between labour dispute resolution institutions to more efficiently serve vulnerable workers.
The CCMA is widely regarded as a highly efficient institution, and the largest labour dispute resolution agency in the world by volume of referrals. The CCMA during 2017/2018 received 186 902 referrals, and has processed a total of 3 million referrals since inception in November 1996.
Labour market analysts have acknowledged that a large part of the CCMA’s success can be attributed to ease of access for the public. This includes physical access to CCMA offices, the provision of remote hearing rooms in rural areas, and Department of Labour touch points. It also includes the user-friendly nature of CCMA forms, which are designed to make sure that the referral process and the information contained in referrals enable the best possible opportunity for applicants to submit referrals which are compliant with legal requirements. The fewer the delays in the processing of referral information, the more effective our case management system is, and the quicker the turnaround of matters being heard. During 2017/2018 the CCMA achieved an average turnaround of 23 days for conciliation hearings and 64 days for arbitration hearings.
The CCMA’s preparation for the commencement of the new legislation involved substantial amendments to the CCMA Rules and forms to maintain this standard. Training and capacitation of staff and commissioners was undertaken at all levels of the institution.
The NMWA applies to all workers, and not only employees in defined employment relationships. This presents a change in approach, since the main suite of employment legislation (Labour Relations Act, Employment Equity Act, and BCEA) apply to employees only.
The enforcement of compliance orders and written undertakings of all matters relating to the NMWA and BCEA will be dealt with on papers by CCMA Commissioners. Should employers submit a valid objection to a compliance order within the period stipulated, the Commissioner may decide that the matter may have to be heard to determine whether the objection is valid or whether enforcement should be enacted. This new journey sees CCMA staff and commissioners would be faced with referrals from workers and employers.
Regional offices reported that since 2 January 2019 there has been a strong showing of interest from the public to enquire about their rights relating to the new legislative changes. The queries which were received at the CCMA offices and its Call Centre (Tel: 0861 161616) have not yet translated into a high volume of referrals. By 11 January 2019 a total of just over 200 referrals were received relating to the BCEA and NMWA. It is anticipated that after the January 2019 paydays, a more pronounced flow of referrals would be received. It was reported at the 2018 CCMA Conference that the CCMA’s case load would increase by at least 15%, while there has been speculation from the Labour market that this number would be much higher.
In anticipation of a high volume of dispute referrals related to the National Minimum Wage Act, the Director of the CCMA established telephone lines specifically dedicated to assist with queries relating to the National Minimum Wage Act. The dedicated telephone numbers for receiving all National Minimum Wage Act and related calls from users and the public are: 011 377 6627 and 011 377 6625. Referral forms can be obtained at CCMA offices and the CCMA website at www.ccma.org.za.
The CCMA is equal to the task to ensure workplace relations are improved by the implementation of the National Minimum Wage Act and all Employment Law Amendments. The CCMA will host its second annual Labour Conference on the Implementation and Applications of the National Minimum Wage on 14 and 15 March 2019, Birchwood Hotel, Gauteng.