Date: 28 March 2019 By: Phathutshedzo Luvhengo
The Department of Labour in Limpopo has warned employers, more specifically farmers, to comply with the conditions of the National Minimum Wage Act which came into effect on 1 January this year.
This warning comes after it recently emerged that some farmers in the Vhembe area were still not complying with the Act and continued to pay their labourers an amount below the required minimum wage.
Regarding this non-compliance, the Department of Labour’s spokesperson, Ms Lerato Makomene, warned offenders that they faced dire consequences. She told the newspaper that the legal consequences for non-compliance were that the department would refer the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA). “If not resolved, the matter can end up with the labour court whereby, in most cases, the judge grants an order in favour of the employee,” she said.
Section 71 of the amended Basic Conditions of Employment Act (BCEA) provides for penalties for non-compliance. “The hourly rate for farm workers is R18. By complying with the legislation, employers in the sector will avoid penalties, prosecution and remain in good standing with the department," said Makomene.
An employer who is not paying the minimum wage will face prosecution in terms of the new law. “Prosecution in terms of the new law takes the route of the CCMA, which is faster than the Labour Court, and employers will be prosecuted after 14 days of being issued a compliance order,” she said.
Transgressors who are not paying their employees the minimum wage since the law came into effect will be forced to pay twice the value of the underpayment or twice the employee’s monthly wage. A repeat offender will be forced to pay thrice the value of the underpayment or thrice the employee’s monthly wage.
To curb this problem and to ensure that employers are complying with the national minimum wage, the National Department of Labour developed a system that will give workers the opportunity to report non-complying employers. President Cyril Ramaphosa is expected to launch the system, called Impimpi Alive, on Workers Day in Durban. It will enable workers to send an anonymous SMS to the department, after which an inspector will be dispatched within 48 hours.
While addressing 400 stakeholders from Labour Unions earlier this month at the second CCMA annual labour conference at Birchwood Hotel, Thembinkosi Mkalipi, the chief director responsible for labour relations in the department, said through the system, names of recalcitrant companies would be published. Mkalipi told stakeholders that if employers knew that there was a high risk of being caught, they would comply.
The National Minimum Wage Act, however, does make provision for an employer or employer’s company acting on behalf of his members to apply for an exemption from paying the national minimum wage. This can only happen if an employer can prove that he or she cannot afford paying the minimum wage. Section 15 of the Act stipulates that an exemption period can, however, not exceed one year.
The process for an application should be lodged through the national minimum wage online system on https://nmw.labour.gov.za/. For businesses, the system requires a statement of financial performance, which is an income statement for a three-year period. It also requires a statement of financial position. For private households, the system requires a statement of financial performance that is a one-year income statement. It also requires employees’ working hours and wage information, proof of consultation with every representative trade union or the affected workers if there is no union.
Mr Frits Ahrens, chairman of the Louis Trichardt Farmers’ Union, said on Tuesday that farmers should not get caught out breaking the law. “It is going to be an expensive exercise for those farmers who break the law. You have other options, like applying for exemption or negotiating reduced working hours, otherwise pay your employees what the law says,” said Ahrens. He invited farmers to contact the office of the Soutpansberg District Agricultural Union for more information about the National Minimum Wage Act.