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 National Minimum Wage Act lays down a national minimum wage. If the company is only covered by the BCEA, then it must pay the current national minimum wage. Thabiso has the right to claim the wages that she was promised when she started working for the company. If this is lower than the national minimum wage then she can claim for the minimum wage amount.

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 or in terms of the National Minimum Wage Act, you can either refer the case to the CCMA OR to the Department of Employment and Labour (or Bargaining Council if it applies). You cannot refer the case to both the CCMA and the Department. These are the different procedures you can follow:
  • First you need to contact 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 can decide whether to go to the CCMA or the Department of Employment and Labour (or Bargaining Council).
  • Using the CCMA: The quickest way to deal with the problem of someone not being paid according to the NMWA, is to refer the dispute directly to the CCMA in terms of Section 73A of the BCEA. This process involves sending the CCMA Referral of Dispute Form 7:11 to the employer and then sending it to the CCMA and ticking Section 73A under ‘Nature of Dispute.’
    • Section 73A of the BCEA says that an employee can refer a dispute to the CCMA if the employer fails to pay any amount owing to an employee in terms of the BCEA or the NMWA, or in terms of a contract of employment, a Sectoral Determination or a collective agreement. An employee can make an application to the CCMA for conciliation and if the dispute cannot be resolved, it will then automatically be referred to arbitration. No legal representation is allowed in these disputes.
    • This provision only applies to employees who earn below the BCEA earning threshold of R21 198 per month. Employees who earn above the threshold can make a claim against an employer for failing to pay them what is owed in either the Labour Court, High Court, Magistrates Court or Small Claims Court depending on the jurisdictional requirements for each of these courts.
  • Using the Department of Employment and Labour (or Bargaining Council): You can refer the problem in writing to the Bargaining Council (if it is a Bargaining Council Agreement) or to the Department of Employment and Labour in terms of the National Minimum Wage Act). The complaint 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 Employment and Labour has its procedures for investigating complaints and enforcing rights. To report a complaint, go to the nearest Department of Employment and Labour and report the complaint. You will need to complete the relevant Labour Complaint Form. The Department of Employment and Labour will appoint an inspector to investigate the complaint. If the inspector finds the employer has not paid the minimum wage, they can get a written undertaking from the employer to pay the minimum wage or they can order the employer to pay the employee by giving them a compliance order. Both the compliance order and the written undertaking can be made into an arbitration award by the CCMA. If the award is not complied with, the employee can apply to the CCMA to certify the award and it can be enforced as if it were an order of the Labour Court.
    • You can also use the Department of Employment and Labour Impimpa hotline to report the complaint. Using this hotline doesn’t need data, airtime or a smartphone. The number to dial when reporting a complaint is 134305# and select the relevant job category. Then follow the prompts. (See Summary of the provisions in the BCEA [if she falls under the BCEA]; See Enforcement of the BCEA; See Enforcement of a workplace-based collective agreement; See Enforcement of a Sectoral Determination; See Enforcement and dealing with disputes about minimum wages)