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HRTorQue Reporter
January 2018
 
HRTorQue Reporter Archive
Table of Contents
1. National Minimum Wage
2. Potential Changes to Employment Legislation in 2018
3. Increase in Minimum Wages for Domestic Workers - Sectoral Determination
4. SARS 2017 Statistics
5. Can an employee disclose his/her conditions of employment?
6. Contact HRTorQue

Should you require any further detail on any of these topics, please feel free to contact us.
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1. National Minimum Wage Bill
Authors: Jayson Kent, Senior Associate and Taryn York, Candidate Attorney, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorney ([email protected]; [email protected])
On Friday, 17 November 2017 the Department of Labour published the National Minimum Wage Bill, 2017 ("the NMW Bill") and the Basic Conditions of Employment Amendment Bill ("the BCEA Bill") for public comment, pertinent aspects of both are discussed below.

The National Minimum Wage Bill, 2017

The purpose of the NMW Bill is to advance social economic development and social justice by improving the wages of the lowest paid employees, by protecting employees from unreasonably low wages, by preserving the value of the national minimum wage and by promoting collective bargaining and supporting economic policy.

In order to achieve the aforementioned goals, the NMW Bill seeks to provide for a national minimum wage and establish a National Minimum Wage Commission ("the Commission") which is intended to implement the provisions of the National Minimum Wage Act, 2017 ("the Act").

The NMW Bill, in its current form, specifies a national minimum wage of R20,00 for each ordinary hour worked. The NMW Bill further specifies that farm workers, domestic workers and workers employed on an expanded public works programme should be paid a minimum wage of R18,00, R15,00 and R11,00 per hour, respectively. Workers who have concluded learnership agreements will also be entitled to allowances, depending on their qualifications, ranging from R301,01 to R1 755,84 per week.

The NMW Bill further prescribes that the payment of a national minimum wage takes precedence over any contrary provision in any contract, collective agreement or law, except a law amending the Act. The national minimum wage must also constitute a term of the employee's contract except to the extent that the contract, collective agreement or law provides for a wage that is more favourable to the employee.

Furthermore, the national minimum wage is calculated as being the amounts above excluding any payment made to enable an employee to work including transport, equipment, food or accommodation allowance, any payment in kind, which includes board or accommodation, gratuities including bonuses, tips or gifts and any other prescribed category of payment.

If an employee is paid on a basis other than the number of hours worked, the employee may not be paid less than the minimum wage for the ordinary hours of work. Furthermore, it would constitute an unfair labour practice where employers unilaterally alter hours of work or other conditions of employment when the national minimum wage is implemented.

However, the NMW Bill empowers the Minister, on application by an employer, to grant exemptions for payment of the national minimum wage in certain circumstances. The exemption granted must specify the period for which it is granted, which may not be longer than a year, it must specify the wage that the employer is required to pay its employees and any other relevant condition. This may offer some relief to small employers that are genuinely unable to pay employees wages in line with the prescribed minimum.

The NMW Bill also makes provision for the establishment of the Commission to review the national minimum wage and to make recommendations annually for the adjustment of the national minimum wage. The Commission may also investigate the impact of the national minimum wage on the economy, collective bargaining and income differentials.

The Act is to commence on 1 May 2018.
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2. Potential Changes to Employment Legislation
Author: Jonathan Aitken (source: PAGSA)
In November 2017, the Department of Labour released three amendment bills for comment. Should they be implemented they would have an impact on employment relationships. This article serves to act as pre-warning to watch this space over the coming months.
 
1.   Basic Conditions of Employment - proposed changes include:
  a. Provide for daily wage payments for certain employees
b. Repeal the provisions dealing with sectoral determinations and create transitional
    arrangements for sectoral determinations
c. Extend the jurisdiction of the CCMA
d. Extend labour inspector powers to Unemployment Insurance and National Minimum
    Wage enforcement
   
2. Labour Relations - proposed changes include:
  a. Provide for the extension of funding agreements
b. Provide for picketing arrangements
c. Provide for a ratified minimum service
d. Extend the meaning of "ballot"
   
3. National Wage Amendment Bill (discussed in detail in the first article of this newsletter)
  a. Provide for a National Minimum Wage
b. Establish a National Minimum Wage commission
c. Provide for a review and annual adjustment of the National Minimum Wage
d. Provide for exemption from paying the National Minimum Wage
e. Provide for transitional arrangements for farm and domestic workers
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3. Increases in Wages - Domestic Workers
Author: Karen van den Bergh
The Minister of Labour, Mildred Oliphant, had the pleasure of announcing that: "wages for the vulnerable workers in the Domestic Worker Sector will be adjusted with effect from 1 January 2018".

In terms of Sectoral Determination 7: The minimum wages will be adjusted upwards for employees.
 
•   This means that an employee that works more than 27 hours in Area A (largely urban areas) should be paid not less than an hourly rate of R13.05.
Secondly, for an employee that works less than 27 hours in Area A should be paid not less than an hourly rate of R15.28.
Thirdly, for an employee that works more than 27 hours in Area B (largely rural areas) should be paid not less than an hourly rate of R11.89.
Fourthly, for an employee that works less than 27 hours in Area B should be paid not less than an hourly rate of R14.03.

The new determination will be effective until the end of December 2018 (following which a new determination will be issued).

Sectoral determination covers the protection of workers in vulnerable sectors/areas of work. The determination sets minimum working hours, minimum wages, number of leave days and termination rules.
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4. SARS 2017 Statistics
Author: Jonathan Aitken
SARS have released their 2016 statistics, available here.

37% of all tax collections in 2016/17 flowed from personal income tax with the majority collected through PAYE.
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5. Disclosure of Conditions of Employment
Author: Melany Bydawell (archives)
Disclosure by employees of their conditions of employment to other employees.

Is an employee entitled to discuss the conditions of their employment with other employees?

This question comes up regularly from clients who are concerned that employees freely discuss their conditions of employment with others.

The Basic Conditions of Employment includes provision for this under 78.(1) (b) as follows:

Protection of Employees Against Discrimination

Rights of Employees


78. (1) Every employee has the right to:
a.   Make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act;
b. Discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person;
c. Refuse to comply with an instruction that is contrary to this Act or any sectoral determination;
d. Refuse to agree to any term or condition of employment that is contrary to this Act or any sectoral determination;
e. Inspect any record kept in terms of this Act that relates to the employment of that employee;
f. Participate in proceedings in terms of this Act;
g. Request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee.

(2) Every trade union representative has the right, at the request of an employee, to inspect any record kept in terms of this Act that relates to the employment of that employee.

The Act is therefore clear in giving employees the right to communicate with others about their conditions of employment.
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6. Contact HRTorQue
Durban
Phone: 031 564 1155  •  Email: [email protected]  •  Website: www.hrtorque.co.za
Address: 163 Umhlanga Rocks Drive, Durban North, KwaZulu-Natal

Johannesburg
Ground Floor, West Wing, 6 Kikuyu Road, Sunninghill, 2191
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