Thabiso is employed by Fix-it Tiles. The company makes plastic floor tiles. She thinks that they pay her less than the minimum wage which the law says she should be paid. She wants to know if this is correct.

What Does the Law Say?

• Collective agreements, Bargaining Council Agreements, Sectoral Determinations and Wage Determinations may set out minimum wages. The Basic Conditions of Employment Act (BCEA) does not lay down minimum wages. If the company is only covered by the BCEA, then there is no minimum wage that they have to pay Thabiso so she will have no claim.
• Thabiso has the right to claim the wages that she was promised when she started working for the company.

What Can You Do?

• Check which wage regulating measure protects the company that Thabiso works for, for example, a Bargaining Council Agreement or Wage Determination, BCEA.
  (See: How Do You Know Which Law Applies to an Employee?)

• Once you have established this, check whether there is a minimum wage for the industry. If so, find out what the minimum wage should be for Thabiso. If she is being underpaid according to a BCA or Wage Determination, you can take these steps:
  • Telephone or write to the employer and ask for details on why Thabiso is being underpaid, as the law says that a minimum wage must be paid to her.
  • If the employer carries on paying below the minimum wage and refuses to take any notice of your request, you should refer the problem in writing to the Bargaining Council (if it is an Bargaining Council Agreement) or to the Department of Labour (if it is a Wage Determination). The letter must say exactly what the claim is and what steps have already been taken to sort out the problem.
  • Each Bargaining Council as well as the Department of Labour has its own procedures for investigating complaints and enforcing rights. The Department of Labour will appoint an inspector to investigate the complaint. If the inspector finds the employer has not complied with the BCEA, the inspector can order the employer to pay Thabiso by giving the employer a compliance order. If the employer refuses to pay her, the inspector can refer the matter to the Director General of Labour.
  • Thabiso has the right to bring a private civil claim against the employer, either in the Small Claims Court or in the Magistrate’s Court.
• If Thabiso is covered by the Labour Relations Act, then there is a minimum wage. Ask your client to lodge a formal complaint with the CCMA, making sure that the employer also receives a copy.

(See: Summary of the Provisions in the BCEA [if she falls under the BCEA]; Enforcement of the BCEA; Enforcement of a Workplace-Based Collective Agreement; Enforcement of a Sectoral Determination)