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CAPE TIMES TALENT 360
Page
4
Date
Mon 10 Dec 2018
AVE (ZAR)
37487.21
THE NATIONALMINIMUM WAGE BILIS NOW LAW
N NOVEMBER 23, 2018,O the state president
assented to and signedinto law the National MinimumWage Bill, bringing into forcethe National Minimum WageAct 9 of 2018.
The act provides for anational minimum wage, dealswith all issues surroundingthe introduction of a nationalminimum wage and establishesa National Minimum WageCommission.
The preamble states thatthe act is as a result of therecognition that South Africais one of the most unequalsocieties in the world and thatthere are huge disparities inincome in the national labourmarket.
It further states that itaims to eradicate poverty andinequality, and to promote fairand effective competition andstability in the labour market.In addition, it states that theact is also as a result of theconstitutional obligation onthe state and employers topromote and fulfil the right tofair labour practices.
The purpose of theact in terms of section 2is to advance economicdevelopment and social justiceby improving the wages oflowest paid workers, to protectworkers from unreasonablylow wages, to preservethe value of the nationalminimum wage, to promotecollective bargaining and tosupport economic policy.
The act prescribes a nationalminimum wage of R20 perhour worked, with certainexceptions being applicableto farm workers, domesticworkers, workers employedon an expanded public worksprogramme and workers whohave concluded learnershipscontemplated in the SkillsDevelopment Act 97 of 1998.
The definition of "basiccondition of employment" interms of the Basic Conditionsof Employment Act 75 of 1997(BCEA) has been amended toinclude the national minimumwage.
Section 15 of the Actprovides for the possibilityof employers or employers'organisations being exemptfrom paying the nationalminimum wage aftersuccessfully applying in theprescribed form and manner.The circumstances that may
justify such an exemption, theprocedure for applying to beexempt and other practicalissues are still to be determinedby the Minister of Labour.
The introduction of anational minimum wage willinevitably be accompaniedby implementation and otherpractical issues. One suchissue is the provision in the actthat states that section 4 (6),which prevents the possibilityof waiving the payment of theminimum wage and providesfor the national minimumwage to take precedenceover any other provision in acontract or agreement, takesretrospective effect from May1,2017.
A law that applies withretrospectiv e effect is onethat takes effect from a pointin time prior to when it waspassed. This is an unusualprovision as laws, oncepromulgated, seldom applywith retrospective effect.
The practical implication ofthe national minimum wageapplying with retrospectiveeffect is that any employeewho has been receivingremuneration of less than R20per hour may claim the balancebetween what they were beingpaid and the national minimumwage, for the period from May1, 2017 until November 27, 2018.
In the event of the employerdisputing this claim, it is
specified by the amendmentsto the BCEA (section 64 (dB)and 73A) that the body that willhave jurisdiction to determinethe dispute is the Commissionfor Conciliation, Mediation andArbitration (CCMA).
Furthermore, theintroduction of section76A of the BCEA providesfor the imposition of a fineon an employer who paidan employee less than thenational minimum wage, in anamount that is either twice thevalue of the underpayment ortwice the employee's monthlywage, or whichever is greater.
Another interestingdevelopment as a result ofthe act is that the BCEA has
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also been amended to includesection 9A, which states thatan employee or a worker whoearns less than the earningsthreshold and who works forless than four hours on any daymust be paid for four hours'work on that day.
The extent of the practicalimplications of the act willbecome apparent over time asissues arise. The solutions tosuch issues will be determinedwith the help of our courtsand other dispute resolutiontribunals such as the CCMAand bargaining councils.
Bradley Workman-Daviesis a director at Werksmans
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