WHAT IS THE MINIMUM WAGE?

The current minimum wage is R27.58 per hour and is reviewed at different times.  The same minimum wage applies to farm employees and domestic employees whether they are working in an urban or rural area and includes a gardener, driver for a household, or caretaker of children, disabled or elderly. 

 Employees on an expanded public works programme are entitled to a minimum wage of R 15.16 per hour (a programme providing public or community services through a labour-intensive programme and which is funded from public resources).

The prescribed minimum wages do not include benefits such as transport, meals, accommodation allowances and so on, unless the Minister makes a determination that these benefits may be included for a specific group of employees.

MINIMUM WAGES IN DIFFERENT SECTORS

 Sectoral Determination 9 (SD9): Wholesale and Retail Sector  – this provides its own regulation on minimum wages and depends on the job category. The lowest minimum wage for the Wholesale and Retail Sector is R27.58  R27.58 per hour.

Sectoral Determination 1 (SD1): Contract Cleaning Sector – provides a minimum rate of R30.35 R30.35 in metropolitan areas and R27.67 R27.67 in certain rural areas.

Learnership programmes – The NMWA provides for minimum wages relating to employees who are part of a learnership programme. However, the minimum wage is determined per week and depends on the number of credits already earned by the learner

CAN AN EMPLOYER REDUCE A SALARY TO THE MINIMUM WAGE? 

If an employment agreement already exists between an employer and employee and provides for a salary higher than the prescribed minimum wage, the employer cannot unilaterally reduce this. On the other hand, if the employment contract provides for less than the prescribed minimum wage, the employer must increase the employee’s salary to be in line with the minimum wage.

It is an unfair labour practice for an employer to unilaterally change an employee’s hours of work or other conditions of employment in implementing the national minimum wage.

The NMWA provides for different procedures to enforce the law and deal with disputes about minimum wages. 

ENFORCEMENT AND DEALING WITH DISPUTES ABOUT MINIMUM WAGES

Disputes around minimum wages can be referred to the CCMA or the Department of Employment and Labour. A dispute cannot be referred to both. This only applies to employees who earn below the BCEA earning threshold of R 254, 372 per year or R21, 198 per month. Employees who earn above the threshold can claim in either the Labour Court, High Court, Magistrates Court or Small Claims Court, depending on the jurisdictional requirements for each of these courts.

REFERRING THE DISPUTE TO THE CCMA: 

The BCEA provides that any employee (defined in S1 of the BCEA or S1 of the NMWA) may refer a dispute to the CCMA if the employer fails to pay any amount owing to an employee. An employee can make an application to the CCMA for conciliation and if the dispute cannot be resolved, it will then automatically go to arbitration on the same day.  No legal representation is allowed in these disputes. This process involves sending the CCMA Referral of Dispute Form 7:11 to the employer and then the CCMA and ticking Section 73A under ‘Nature of Dispute.’

This provision only applies to employees who earn below the BCEA earning threshold of R 254, 372 per year or R21, 198 per month. Employees who earn above the threshold can claim in either the Labour Court, High Court, Magistrates Court or Small Claims Court depending on the jurisdictional requirements for each of these courts.

REFERRING THE DISPUTE TO THE DEPARTMENT OF EMPLOYMENT AND LABOUR:

A dispute regarding minimum wages can also be referred to the Department of Employment and Labour. Inspectors can get a written undertaking from employers to pay the minimum wage or they can issue compliance orders to employers for non-enforcement instructing them to pay the minimum wage. Both the compliance orders and written undertakings may be made into arbitration awards by the CCMA. If the award is not complied with, the employee can apply to the CCMA to certify the award and it may be enforced as if it were an order of the Labour Court.

An employee can refer a dispute about minimum wages to either the CCMA or the Department of Employment and Labour but not to both.

PENALTIES FOR FAILING TO COMPLY WITH THE NATIONAL MINIMUM WAGE ACT

An employer may be issued with a fine if an employee is paid less than the prescribed minimum wage. This fine may be either one of the following (whichever is the higher amount):

●        Twice the value of the amount the employee is paid below the prescribed minimum wage. For example, an employer pays an employee R5 less than the prescribed minimum wage. This means that the fine will be twice that amount, which is R10.

●        Twice the employee’s monthly wage. For example, if an employee earns R900 per month, the fine can be R1 800.

EXEMPTIONS FROM PAYING THE MINIMUM WAGE

NMWA provides for an employer to apply for exemption from paying the national minimum wage. 

(See Enforcement and dealing with disputes about minimum wages)