Note: This is the first
draft Bill published on 17 December 2010 for public comment.
Comments may be submitted before 11 February 2011, whereafter it
will probably be reviewed by Nedlac before being submitted to
Parliament.
For ease of reference the
original section has been placed in a text box, with the proposed
amendments located beneath.
--------------------------------
(As introduced in the National Assembly (proposed section
75); explanatory summary of Bill published in Government Gazette No. of
) (The English text is the official text of the Bill)
--------------------------------
(MINISTER OF LABOUR)
[B — 2010]
060610nb
GENERAL
EXPLANATORY NOTE
[ ] Words in bold type in square brackets indicate omissions
from existing enactments.
___________ Words underlined with a solid line indicate insertions in
To amend the
Basic Conditions of Employment Act, 1997 so as to substitute or insert certain
definitions; to provide benefits for contract workers; to prohibit certain
conduct of employees; to provide for the prohibition of work by children as
employees or independent contractors; to further provide for the adjustment of
remuneration; to provide for the Minster to publish a sectoral determination for
employees and employers who are not covered by any other sectoral determination;
to delete or repeal certain obsolete provisions; to provide for a convicted
employer to repay an employee amounts which are due to the employee; to provide
for the prohibition of certain exploitative practices by employers; and to
provide for certain offences and penalties; to increase the penalties for
certain offences; and to provide for matters connected therewith.
BE IT ENACTED
by the Parliament of the Republic of South Africa, as follows:—
Amendment of section 1 of Act 75 of 1997, as amended by
section 40 of Act 65 of 2001, section 26 of Act 68 of 2002 and section 25 of Act
52 of 2003
1. Definitions
In this Act, unless the context indicates otherwise—
"agreement" includes a collective agreement;
"area" includes any number of areas, whether or not contiguous;
"bargaining council" means a bargaining council registered in terms
of the Labour Relations Act, 1995, and, in relation to the public
service, includes the bargaining councils referred to in section 35
of that Act;
"basic condition of employment" means a provision of this Act or
sectoral determination that stipulates a minimum term or condition
of employment;
"CCMA" means the Commission for Conciliation, Mediation and
Arbitration established in terms of section 112 of the Labour
Relations Act, 1995;
"child" means a person who is under 18 years of age;
"code of good practice" means a code of good practice issued by the
Minister in terms of section 87 of this Act;
"collective agreement" means a written agreement concerning terms
and conditions of employment or any other matter of mutual interest
concluded by one or more registered trade unions, on the one hand
and, on the other hand—
(a) one or more employers;
(b) one or more registered employers' organisations; or
(c) one or more employers and one or more registered employers'
organisation;
"Commission" means the Employment Conditions Commission established
by section 59(1); "compliance order" means a compliance order issued
by a labour inspector in terms of section 69(1); "Constitution"
means the Constitution of the Republic of South Africa, 1996 (Act
No. 108 of 1996); "council" includes a bargaining council and a
statutory council;
"Department" means the Department of Labour;
"Director-General" means the Director-General of Labour;
"dispute" includes an alleged dispute;
"domestic worker" means an employee who performs domestic work in
the home of his or her employer and includes—
(a) a gardener;
(b) a person employed by a household as driver of a motor vehicle;
and
(c) a person who takes care of children, the aged, the sick, the
frail or the disabled, but does not
include a farm worker;
"employee" means—
(a) any person, excluding an independent contractor, who works for
another person or for the State
and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or
conducting the business of an
employer, and "employed" and "employment" have a corresponding
meaning; ["Employee is given a specific meaning in section 82(1)]
"employers' organisation" means any number of employers associated
together for the purpose, whether by itself or with other purposes,
of regulating relations between employers and employees or trade
unions;
"employment law" includes this Act, any other Act the administration
of which has been assigned to the Minister, and any of the following
Acts:
(a) The Unemployment Insurance Act, 1966 (Act No. 30 of 1966);
(b) the Skills Development Act, 1998 (Act No.97 of 1998)
(c) the Employment Equity Act, 1998 (Act No.55 of 1998);
(d) the Occupational Health and Safety Act, 1993 (Act No. 85 of
1993);
(e) the Compensation for Occupational Injuries and Diseases Act,
1993 (Act No. 130 of 1993);
"farm worker" means an employee who is employed mainly in or in
connection with farming activities, and includes an employee who
wholly or mainly performs domestic work in a home on a farm;
"Labour Appeal Court" means the Labour Appeal Court established by
section 167 of the Labour Relations Act, 1995;
"Labour Court" means the Labour Court established by section 151 of
the Labour Relations Act, 1995;
"labour inspector" means a labour inspector appointed under section
63, and includes any person designated by the Minister under that
section to perform any function of a labour inspector;
"Labour Relations Act, 1995" means the Labour Relations Act, 1995
(Act No. 66 of 1995);
"medical practitioner" means a person entitled to practise as a
medical practitioner in terms of section 17 of the Medical, Dental
and Supplementary Health Service Professions Act, 1974 (Act No. 56
of 1974);
"midwife" means a person registered or enrolled to practise as a
midwife in terms of section 16 of the Nursing Act, 1978 (Act No. 50
of 1978);
"Minister" means the Minister of Labour; "month" means a calendar
month;
"NEDLAC" means the National Economic, Development and Labour Council
established by section 2 of the National Economic, Development and
Labour Council Act, 1994 (Act No. 35 of 1994);
"ordinary hours of work" means the hours of work permitted in terms
of section 9 or in terms of any agreement in terms of sections 11 or
12;
"overtime" means the time that an employee works during a day or a
week in excess of ordinary hours of work;
"prescribe" means to prescribe by regulation and "prescribed" has a
corresponding meaning;
"public holiday" means any day that is a public holiday in terms of
the Public Holidays Act, 1994 (Act No. 36 of 1994);
"public service" means the public service referred to in section
1(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994),
and includes any organizational component contemplated in section
7(4) of that Act and specified in the first column of Schedule 2 to
that Act, but excluding—
(a) the members of the National Defence Force;
(b) the National Intelligence Agency; and
(c) the South African Secret Service;
"registered employers' organisation" means an employers'
organisation registered under section 96 of the Labour Relations
Act, 1995;
"registered trade union" means a trade union registered under
section 96 of the Labour Relations Act, 1995;
"remuneration" means any payment in money or in kind, or both in
money and in kind, made or owing to any person in return for that
person working for any other person, including the State, and
"remunerate" has a corresponding meaning; ["Remuneration" is given a
specific meaning in section 35(5).]
"sector" means an industry or a service or a part of an industry or
a service; "sectoral determination" means a sectoral determination
made under Chapter Eight;
"senior managerial employee" means an employee who has the authority
to hire, discipline and dismiss employees and to represent the
employer internally and externally;
"serve" means to send by registered post, telegram, telex, telefax
or deliver by hand;
"statutory council" means a council established under Part E of
Chapter III of the Labour Relations Act, 1995;
"temporary employment service" means any person who, for reward,
procures for, or provides to, a client, other persons—
(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment service;
"this Act" includes the Schedules and any regulation made under this
Act, but does not include the headings or footnotes;
"trade union" means an association of employees whose principal
purpose is to regulate relations between employees and employers,
including any employers' organisations;
"trade union official" includes an official of a federation of trade
unions;
"trade union representative" means a trade union representative who
is entitled to exercise the rights contemplated in section 14 of the
Labour Relations Act, 1995;
"wage" means the amount of money paid or payable to an employee in
respect of ordinary hours of work or, if they are shorter, the hours
an employee ordinarily works in a day or week;
"week" in relation to an employee, means the period of seven days
within which the working week of that employee ordinarily falls;
"workplace" means any place where employees work;
"workplace forum" means a workplace forum established under Chapter
V of the Labour Relations Act, 1995.
1. Section 1 of the Basic Conditions of Employment Act, 1997
(hereafter referred to as the principal Act) is amended by—
(a)
the insertion after the definition of "Constitution" of the following
definition—
" 'contract of employment' means—
(a)a common law contract of employment; or
(b)any other agreement or arrangement under which a person agrees to work for an
employer but excluding a contract for work as an independent contractor;";
(b)
the insertion after the definition of "farmworker" of the following definition:
" 'independent contractor' means a person who works for or
supplies services to a client or customer as part of the person’s business,
undertaking or professional practice;”;
(c) "forced
labour” means all work
or service which is exacted from any person under the menace of any penalty and for which the said person has not offered
himself voluntarily
(d)
the substitution for the definition of “sector” of the following definition:
"'sector' means an industry or a service or part of an
industry or service and in respect of a sectoral determination made in terms
of section 55(8), means the employers and employees covered by that
determination;”; and
(e)
the substitution for the definition of 'serve' of the following definition:
"'serve' means to send by registered post, telegram, telex,
telefax or to deliver by hand and—
(a)in
respect of the Labour Courts, any other method of service specified in the Rules
of that Court;
(b)in
respect of the Commission, any other method of service specified in the Rules of
the Commission;”.
Amendment of
section 32 of Act 75 of 1997
32. Payment of remuneration
(1) An employer must pay to an employee any remuneration that is
paid in money—
(a) in South African currency;
(b) daily, weekly, fortnightly or monthly; and
(c) in cash, by cheque or by direct deposit into an account
designated by the employee.
(2) Any remuneration paid in cash or by cheque must be given to each
employee—
(a) at the workplace or at a place agreed to by the employee;
(b) during the employee's working hours or within 15 minutes of the
commencement or conclusion of those hours; and
(c) in a sealed envelope which becomes the property of the employee.
(3) An employer must pay remuneration not later than seven days
after—
(a) the completion of the period for which the remuneration is
payable; or
(b) the termination of the contract of employment.
(4) Subsection (3)(b) does not apply to any pension or provident
fund payment to an employee that is made in terms of the rules of
the fund.
2. Section 32 of the principal Act is hereby amended by the addition
of the following subsection:
"(5)Employers must
contribute benefits of similar or equal value to employees employed on a fixed
term contract as the benefits afforded to permanent employees.”.
Insertion of
section 33A in Act 75 of 1997
33. Information about remuneration
(1) An employer must give an employee the following information in
writing on each day the employee is
paid:
(a) The employer's name and address;
(b) the employee's name and occupation;
(c) the period for which the payment is made;
(d) the employee's remuneration in money;
(e) the amount and purpose of any deduction made from the
remuneration;
(f) the actual amount paid to the employee; and
(g) if relevant to the calculation of that employee's remuneration—
(i) the employee's rate of remuneration and overtime rate;
(ii) the number of ordinary and overtime hours worked by the
employee during the period for which the payment is made;
(iii) the number of hours worked by the employee on a Sunday or
public holiday during that period; and
(iv) if an agreement to average working time has been concluded in
terms of section 12, the total number of ordinary and overtime hours
worked by the employee in the period of averaging.
(2) The written information required in terms of subsection (1) must
be given to each employee—
(a) at the workplace or at a place agreed to by the employee; and
(b) during the employee's ordinary working hours or within 15
minutes of the commencement or conclusion of those hours.
3.
The following section is hereby inserted in the principal Act after section 33:
33A. "Prohibited conduct
An employer must
not—
(a)require
or accept any payment by or on behalf of an employee or prospective employee;
(b)require an
employee or prospective employee to purchase any goods from the employer, any
business or person nominated by the employer; or
(c)accept
or seek benefit of any kind;
in respect of the employment of, or the allocation of work
to, an employee or prospective employee.".
Substitution of
section 35 of Act 75 of 1997
35. Calculation of remuneration and wages
(1) An employee's wage is calculated by reference to the number of
hours the employee ordinarily works.
(2) For the purposes of calculating the wage of an employee by time,
an employee is deemed ordinarily to work—
(a) 45 hours in a week, unless the employee ordinarily works a
lesser number of hours in a week;
(b) nine hours in a day, or seven and a half hours in the case of an
employee who works for more
than five days a week, or the number of hours that an employee works
in a day in terms of an agreement concluded in accordance with
section 11, unless the employee ordinarily works a lesser number of
hours in a day.
(3) An employee's monthly remuneration or wage is four and one-third
times the employee's weekly remuneration or wage, respectively.
(4) If an employee's remuneration or wage is calculated, either
wholly or in part, on a basis other than time or if an employee's
remuneration or wage fluctuates significantly from period to period,
any payment to that employee in terms of this Act must be calculated
by reference to the employee's remuneration or wage during—
(a) the preceding 13 weeks; or
(b) if the employee has been in employment for a shorter period,
that period.
(5) (a) The Minister may, by notice in the Gazette, after
consultation with the Commission and NEDLAC, determine whether a
particular category of payment, whether in money or in kind, forms
part of an employee's remuneration for the purpose of any
calculation made in terms of this Act.
(b) Without limiting the Minister's powers in terms of paragraph
(a), the Minister may—
(i) determine the value, or a formula for determining the value, of
any payment that forms part of remuneration;
(ii) place a maximum or minimum value on any payment that forms part
of remuneration; and
(iii) for the purposes of any calculation, differentiate between
different categories of payment and different sectors.
(c) Before the Minister issues a notice in terms of paragraph (a),
the Minister must—
(i) publish a draft of the proposed notice in the Gazette; and
(ii) invite interested parties to submit written representations on
the draft notice within a reasonable period.
(4)
If an employee’s remuneration or wage is calculated, either wholly or in
part, on a basis other than time or if an employee’s remuneration or wage
fluctuates [significantly].”.
Substitution of
section 43 of Act 75 of 1997
43. Prohibition of employment of children
(1) No person may employ a child—
(a) who is under 15 years of age; or
(b) who is under the minimum school-leaving age in terms of any law,
if this is 15 or older. [Section
31(1) of the South African Schools Act, 1996 (Act No. 84 of 1996)
requires every parent to cause every learner for whom he or she is
responsible to attend a school until the last school day of the year
in which the learner reaches the age of 15 or the ninth grade,
whichever is the first.]
(2) No person may employ a child in employment—
(a) that is inappropriate for a person of that age;
(b) that places at risk the child's well-being, education, physical
or mental health, or spiritual, moral
or social development.
(3) A person who employs a child in contravention of subsection (1)
or (2) commits an offence.
4. The following section is hereby substituted for section 43 of the
principal Act:
43. “Prohibition of
[employment of] work by children
(1) No person may [employ]
require or permit a child to work as an employee or independent contactor
if the child—
(a)[who] is under
15 years of age; or
(b)[who] is
under the minimum school-leaving age in terms of any law[, ifthis is
15 or older].
(2) No person may [employ]require or permit a child [in employment]to perform any work
or provide services—
(a) that [is]
are inappropriate for a person of that age;
(b) that place[s]
at risk the child’s well-being, education, physical or mental health, or
spiritual, moral or social development.
(3) A person who [employs]requires or permits a child to work in contravention of subsection
(1) or (2) commits an offence.”.
Substitution of
section 44 of Act 75 of 1997
44. Employment of children of 15 years or older
(1) Subject to section 43(2), the Minister may, on the advice of the
Commission, make regulations to prohibit or place conditions on the
employment of children who are at least 15 years of age and no
longer subject to compulsory schooling in terms of any law.
(2) A person who employs a child in contravention of subsection (1)
commits an offence.
5. The following section is hereby substituted for section 44 of the
principal Act:
44. “Regulations of work by children [of 15 years or
older]
(1) Subject to section 43(2), the Minister
may, on the advice of the Commission, make regulations to prohibit or place
conditions of [on the employment of]work by children who are at
least 15 years of age and no longer subject to compulsory schooling in terms of
any law.
(2)A person who[employs]requires or permits a child to work in
contravention of [subsection (1) or (2)] any regulation made in terms
of this section commits an offence.".
(3)The Minister may,
on the advice of the Commission, make regulations to give effect to South
Africa’s international law obligations in terms of the International Labour
Organisation Convention (No.182) on the Worst Forms of Child Labour and any
other international instrument dealing with work by children.
Substitution of
section 45 of Act 75 of 1997
45. Medical examinations
The Minister may, after consulting the Commission, make regulations
relating to the conduct of medical examinations of children in
employment. [Section 90(3) protects the confidentiality of any
medical examination conducted in terms of this Act.]
6. The following section is hereby substituted for section 45 of the
principal Act:
45. "Medical examinations
The Minister may, after consulting the
Commission, make regulations relating to the conduct of medical examinations of
children [in employment]who perform work.".
Amendment of
section 46 of Act 75 of 1997
46. Prohibitions
It is an offence to—
(a) assist an employer to employ a child in contravention of this
Act; or
(b) discriminate against a person who refuses to permit a child to
be employed in contravention of this Act.
7.Section 46 of the principal Act is hereby
amended by—
(a)
the substitution for paragraph (a) of the
following paragraph:
“(a) assist [an
employer to employ]any person to require or permit a child to
work in contravention of this Act; or”; and
(b)
the substitution for paragraph (b) of the following paragraph:
“(b) discriminate
against a person who refuses to permit a child to [be employed] work
in contravention of this Act.".
Substitution of
section 47 of Act 75 of 1997
47. Evidence of age
In any proceedings in terms of this Act, if the age of an employee
is a relevant factor for which insufficient evidence is available,
it is for the party who alleges that the employment complied with
the provisions of this Chapter to prove that it was reasonable for
that party to believe, after investigation, that the person was not
below the permitted age in terms of section 43 or 44.
8. The following section is hereby substituted for section 47 of the
principal Act:
47. "Evidence of age
In any proceedings in terms of this Act, if the
age of [an employee] any person is a relevant factor for which
insufficient evidence is available, it is for the party who alleges that the
[employment]work by that person complied with the provisions of this
Chapter to prove that it was reasonable for that party to believe, after
investigation, that the person was not below the permitted age in terms of
section 43 or 44.".
Amendment of
section 55 of Act 75 of 1997, as amended by section 11 of Act 11 of 2002
55. Making of sectorall determination
(1) After considering the report and recommendations of the
Commission contemplated in section 54(4), the Minister may make a
sectoral determination for one or more sector and area.
(2) If the Minister does not accept a recommendation of the
Commission made in terms of section 54(4), the Minister must refer
the matter to the Commission for its reconsideration indicating the
matters on which the Minister disagrees with the Commission.
(3) After considering the further report and recommendations of the
Commission, the Minister may make a sectoral determination.
(4) A sectoral determination may in respect to the sector and area
concerned—
(a) set minimum terms and conditions of employment, including
minimum rates of remuneration;
(b) provide for the adjustment of minimum rates of remuneration;
(c) regulate the manner, timing and other conditions of payment of
remuneration;
(d) prohibit or regulate payment of remuneration in kind;
(e) require employers to keep employment records;
(f) require employers to provide records to their employees;
(g) prohibit or regulate task-based work, piecework, home work and
contract work;
(h) set minimum standards for housing and sanitation for employees
who reside on their employers' premises;
(i) regulate payment of travelling and other work-related
allowances;
(j) specify minimum conditions of employment for trainees;
(k) specify minimum conditions of employment for persons other than
employees;
(l) regulate training and education schemes;
(m) regulate pension, provident, medical aid, sick pay, holiday and
unemployment schemes or funds; and
(n) regulate any other matter concerning remuneration or other terms
or conditions of employment.
(5) Any provisions of a sectoral determination may apply to all or
some of the employers and employees in
the sector and area concerned.
(6) A sectoral determination in terms of subsection (1)
(a) may not be made in respect of section 7, 43(2), 44 or 48;
(b) may only be made in respect of section 43(1) to allow the
employment of children in the performance of advertising, sports,
artistic or cultural activities;
(c) may not reduce the protection afforded to employees by sections
17(3) and (4) and 25 or a regulation made in terms of section 13;
and
(d) may vary the basic conditions of employment in section 9 in the
circumstances contemplated by section 50 (2A).
(7) The Minister may not publish a sectoral determination—
(a) covering employees and employers who are bound by a collective
agreement concluded at a bargaining council;
(b) regulating any matter in a sector and area in which a statutory
council is established and in respect of which that statutory
council has concluded a collective agreement;
(c) regulating any matter regulated by a sectoral determination for
a sector and area which has been in effect for less than 12 months.
9. Section 55 of the principal Act is hereby amended by—
(a)
the substitution for subsection (1) of the following subsection:
"(1) After considering the
report and recommendations of the Commission contemplated in section 54 (4), the
Minister may make a sectoral determination for one or more sector and area or
as contemplated by subsection (8).";
(b)
the substitution in subsection (4) for paragraph (b) of of the following
paragraph:
"(b) provide for the adjustment of
remuneration by way of—
(i) minimum rates;
or
(ii)minimum
increases of remuneration;";
(c)
the substitution for paragraph (g) of subsection (4) of the following paragraph:
“(g) prohibit or regulate task-based work, piecework,
homework, the placement of employees by temporary employment services,
sub-contracting and contract work;”
(d)
the deletion of the word “and” at the end of paragraph (m), the insertion
of the word “and” at the end of paragraph (o) and the addition of the
following paragraphs:
"(o)subject to the provisions of the Labour
Relations Act, set a threshold of representativeness for a registered trade
union to have the organisational rights contemplated in sections 12 and 13 of
the Labour Relations Act in respect of all workplaces covered by the sectoral
determination; and
(p)any matter
necessary to determine the conditions of a labour tenant as contemplated in
section 4 of the Land Reform (Labour Tenants) Act No. 3 of 1996;";
(e)
the substitution in subsection (7) for paragraph (a) of the following
paragraph:
"(a) covering employees and employers who are
bound by a collective agreement concluded at a bargaining council in respect
of any matter dealt with in that collective agreement;"; and
(f)
the addition of the following subsection:
"(8)Subject to the
provisions of subsection (7), the Minister may publish a sectoral determination
that applies to employers and employees who are not covered by any other
sectoral determination.".
Amendment of
section 64 of Act 75 of 1997
64. Functions of labour inspectors
(1) A labour inspector appointed under section 63(1) may promote,
monitor and enforce compliance with an
employment law by—
(a) advising employees and employers of their rights and obligations
in terms of an employment law;
(b) conducting inspections in terms of this Chapter;
(c) investigating complaints made to a labour inspector;
(d) endeavouring to secure compliance with an employment law by
securing undertakings or issuing compliance orders; and
(e) performing any other prescribed function.
(2) A labour inspector may not perform any function in terms of this
Act in respect of an undertaking in respect of which the labour
inspector has, or may reasonably be perceived to have, any personal,
financial or similar interest.
10. Section 64 of the
principal Act is hereby amended by the deletion in subsection (1) of paragraph
(d).
Amendment of
section 65 of Act 75 of 1997, as amended by section 17 of Act 37 of 2008
65. Powers of entry
(1) In order to monitor and enforce compliance with an employment
law, a labour inspector may, without warrant or notice, at any
reasonable time, enter—
(a) any workplace or any other place where an employer carries on
business or keeps employment records, that is not a home;
(b) any premises used for training in terms of the Manpower Training
Act, 1981 (Act No. 56 of 1981); or
(c) any private employment office registered under section 15 of the
Guidance and Placement Act,
1981 (Act No. 62 of 1981).
(2) A labour inspector may enter a home or any place other than a
place referred to in subsection (1) only—
(a) with the consent of the owner or occupier; or
(b) if authorised to do so in writing in terms of subsection (3).
(3) The Labour Court may issue an authorisation contemplated in
subsection (2) only on written application by a labour inspector who
states under oath or affirmation the reasons for the need to enter a
place in order to monitor or enforce compliance with any employment
law.
(4) If it is practical to do so, the employer and a trade union
representative must be notified that the labour inspector is present
at a workplace and of the reason for the inspection.
11. Section 65 of the
principal Act is hereby amended by—
(a)
the deletion in subsection (1) of paragraphs (b) and (c); and
(b)
the addition of the following subsection:
"(5)An interpreter, a
member of the South African Police Service or any other assistant may, when
required by a labour inspector, accompany the labour inspector when he or she
performs his or her functions under this Act or any employment law.".
Repeal of
sections 68, 69, 70, 71, 72 and 73 of Act 75 of 1997
68. Securing an undertaking
(1) A labour inspector who has reasonable grounds to believe that an
employer has not complied with any
provision of this Act must endeavour to secure a written undertaking
by the employer to comply with the provision.
(1A) A labour inspector may endeavour to secure a written
undertaking by the employer to comply with subsection (1) either by—
(a) meeting with the employer or a representative of the employer;
or
(b) serving a document, in the prescribed form, on the employer.
(2) In endeavouring to secure the undertaking, the labour inspector—
(a) may seek to obtain agreement between the employer and employee
as to any amount owed to
the employee in terms of this Act;
(b) may arrange for payment to an employee of any amount paid as a
result of an undertaking;
(c) may, at the written request of an employee, receive payment on
behalf of the employee; and
(d) must provide a receipt for any payment received in terms of
paragraph (c). 69. Compliance order
(1) A labour inspector who has reasonable grounds to believe that an
employer has not complied with a
provision of this Act may issue a compliance order.
(2) A compliance order must set out—
(a) the name of the employer, and the location of every workplace,
to which it applies;
(b) any provision of this Act that the employer has not complied
with, and details of the conduct
constituting non-compliance;
(c) any amount that the employer is required to pay to an employee;
(d) any written undertaking by the employer in terms of section
68(1) and any failure by the
employer to comply with a written undertaking;
(e) any steps that the employer is required to take including, if
necessary, the cessation of the
contravention in question and the period within which those steps
must be taken; and
(f) the maximum fine that may be imposed upon the employer in
accordance with Schedule Two for
a failure to comply with a provision of this Act.
(3) (a) A labour inspector must serve a copy of the compliance order
on the employer named in it, and on
each employee affected by it unless this is impractical, and on a
representative of the employees.
(b) The failure to serve a copy of a compliance order on any
employee or any representative of
employees in terms of paragraph (a) does not invalidate the order.".
(4) The employer must display a copy of the compliance order
prominently at a place accessible to the
affected employees at each workplace named in it.
(5) An employer must comply with the compliance order within the
time period stated in the order unless
the employer objects in terms of section 71. 70. Limitations
A labour inspector may not issue a compliance order in respect of
any amount payable to an employee as a result of a failure to comply
with a provision of this Act if—
(a) the employee is covered by a collective agreement that provides
for resolution by arbitration of
disputes concerning amounts owing in terms of this Act;
(b) the employee is employed in a category of employees mentioned in
section 6(1)(a) or in respect
of which a notice has been issued in terms of section 6(3);
(c) any proceedings have been instituted for the recovery of that
amount or, if proceedings have
been instituted, those proceedings have been withdrawn; or
(d) that amount has been payable by the employer to the employee for
longer than 12 months
before the date on which a complaint was made to a labour inspector
by or on behalf of the employee or, if no complaint was made, the
date on which a labour inspector first endeavoured to secure a
written undertaking by the employer in terms of section 68. 71. Objections to compliance order
(1) An employer may object to a compliance order by making
representations in writing to the Director-
General within 21 days of receipt of that order.
(2) If the employer shows good cause at any time, the Director-
General may permit the employer to object
after the period of 21 days has expired.
(3) After considering any representations by the employer and any
other relevant information, the Director-
General—
(c) may confirm, modify or cancel an order or any part of an order;
and
(d) must specify the period within which the employer must comply
with any part of an order that is
confirmed or modified.
(4) The information that the Director- General must consider
includes—
(a) any evidence concerning the employer's compliance record;
(b) the likelihood that the employer was aware of the relevant
provisions; and
(c) the steps taken by the employer to ensure compliance with the
relevant provision.
(5) The Director-General must serve a copy of the order made in
terms of subsection (3) on the employer
and on each employee affected by it or, if this is impractical, on a
representative of the employees.
(6) If the Director-General confirms or modifies the order or any
part of the order, the employer must
comply with that order within the time period specified in that
order. 72. Appeals from order of Director-General
(1) An employer may appeal to the Labour Court against an order of
the Director-General within 21 days of
receipt of that order.
(2) The order is suspended pending the final determination of the
appeal by the Labour Court or any appeal
from the Labour Court.
(3) If the employer shows good cause at any time, the Labour Court
may permit the employer to appeal
after the period of 21 days has expired. 73. Order may be made order of Labour Court
(1) The Director-General may apply to the Labour Court for a
compliance order to be made an order of the
Labour Court in terms of section 158(1)(c) of the Labour Relations
Act, 1995, if the employer has not complied with the order and has
not lodged an objection against the order in terms of section 71(1).
(2) The Director-General may apply to the Labour Court for an order
of the Director-General in terms of
section 71(3) to be made an order of the Labour Court in terms of
section 158(1)(c) of the Labour Relations Act, 1995, if the employer
has not complied with the order and has not appealed against the
order in terms of section 72(1).
13. Sections 68, 69, 70, 71, 72 and 73 of the principal Act are hereby
repealed.
Amendment of
section 74 of Act 75 of 1997, as amended by section 17 of Act 11 of 2002
74. Consolidation of proceedings
(1) A dispute concerning a contravention of this Act may be
instituted jointly with proceedings instituted by an employee under
Part C of this Chapter.
(2) If an employee institutes proceedings for unfair dismissal, the
Labour Court or the arbitrator hearing the matter may also determine
any claim for an amount that is owing to that employee in terms of
this Act if—
(a) the claim is referred in compliance with section 191 of the
Labour Relations Act, 1995;
(b) the amount had not been owing by the employer to the employee
for longer than one year prior to the dismissal; and
(c) no compliance order has been made and no other legal proceedings
have been instituted to recover the amount.
(3) A dispute concerning any amount that is owing to an employee as
a result of a contravention of this Act may be initiated jointly
with a dispute instituted by that employee over the entitlement to
severance pay in terms of section 41(6).
14. Section 74 of the
principal Act is hereby amended by—
(a) the substitution
in subsection (2) of the words preceding paragraph (a) of the following
words:
"If an employee institutes
proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the
matter may also determine any claim for an amount that is owing to that employee
in terms of this Act if [—] the claim has not prescribed.”; and
(b)
the deletion in subsection (2) of paragraphs (a), (b) and (c).
Amendment of
section 77 of Act 75 of 1997
77. Jurisdiction of Labour Court
(1) Subject to the Constitution and the jurisdiction of the Labour
Appeal Court, and except where this Act provides otherwise, the
Labour Court has exclusive jurisdiction in respect of all matters in
terms of this Act, except in respect of an offence specified in
sections 43, 44, 46, 48, 90 and 92.
(2) The Labour Court may review the performance or purported
performance of any function provided for in this Act or any act or
omission of any person in terms of this Act on any grounds that are
permissible in law.
(3) The Labour Court has concurrent jurisdiction with the civil
courts to hear and determine any matter concerning a contract of
employment, irrespective of whether any basic condition of
employment constitutes a term of that contract.
(4) Subsection (1) does not prevent any person relying upon a
provision of this Act to establish that a basic condition of
employment constitutes a term of a contract of employment in any
proceedings in a civil court or an arbitration held in terms of an
agreement.
(5) If proceedings concerning any matter contemplated in terms of
subsection (1) are instituted in a court that does not have
jurisdiction in respect of that matter, that court may at any stage
during proceedings refer that matter to the Labour Court.
15. Section 77 of the
principal Act is hereby amended by—
(a)
the substitution for subsection (1) of the following subsection:
"(1) Subject to the
Constitution, the Labour Court has exclusive jurisdiction in respect of all
matters in terms of this Act.”; and
(b)
the substitution of subsection (3) of the following subsection:
“(3) The Labour Court has
[concurrent]exclusive jurisdiction [with the civil courts] to
hear and determine any matterconcerning a contract of employment,
irrespective of whether any basic condition of employment constitutes a term of
that contract.”.
Amendment of
section 77A of Act 75 of 1997
77A. Powers of Labour Court
Subject to the provisions of this Act, the Labour Court may make any
appropriate order, including an order—
(a) making a compliance order issued in terms of this Act, an order
of the Labour Court, on application by the Director-General in terms
of section 73(1) or 73(2);
(b) condoning the late filing of any document with, or the late
referral of any dispute to, the Labour Court;
(c) confirming, varying or setting aside all or part of an order
made by the Director- General in terms of section 71(3), on appeal
by the employer in terms of section 72;
(d) reviewing the performance or purported performance of any
function provided for in terms of this Act or any act or omission by
any person or body in terms of this Act, on any grounds permissible
in law;
(e) making a determination that it considers reasonable on any
matter concerning a contract of employment in terms of section
77(3), which determination may include an order for specific
performance, an award of damages or an award of compensation;
(f) imposing a fine in accordance with Schedule 2 to this Act or for
any contravention of any provision of this Act for which a fine can
be imposed; and
(g) dealing with any matter necessary or incidental to performing
its functions in terms of this Act.
16. Section 77A of the
principal Act is hereby amended by—
(a)
the deletion of paragraphs (a) and (c); and
(b)
the substitution for paragraph (d) of the following paragraph:
“(d) reviewing [the performance or purported
performance of] any [function provided for]administrative action
in terms of this Act [or omission by any person or body in terms of this Act,
on any grounds permissible in law] or any employment law;”.
Repeal of
section 82 of Act 75 of 1997
82. Temporary employment services
(1) For the purposes of this Act, a person whose services have been
procured for, or provided to, a client by a temporary employment
service is the employee of that temporary employment service, and
the temporary employment service is that person's employer.
(2) Despite subsection (1), a person who is an independent
contractor is not an employee of a temporary employment service, nor
is the temporary employment service the employer of that person.
(3) The temporary employment service and the client are jointly and
severally liable if the temporary employment service, in respect of
any employee who provides services to that client, does not comply
with this Act or a sectoral determination.
17. Section 82 of the principal Act is
hereby repealed.
Amendment of
section 93 of Act 75 of 1997
93. Penalties
(1) Any magistrates' court has jurisdiction to impose a penalty for
an offence provided for in this Act.
(2) Any person convicted of an offence in terms of any section
mentioned in the first column of the table below may be sentenced to
a fine or imprisonment for a period not longer than the period
mentioned in the second column of that table opposite the number of
that section.
OFFENCES AND PENALTIES
18. Section 93 of the
principal Act is hereby amended by—
(a)
the insertion after subsection (1) for the following subsection:
“(1A)If an employer is
convicted of any offence under this act, the court that imposes the sentence
must consider any amounts due to the employee as a result of non payment or
illegal deductions and must make an appropriate order for the payment of amounts
due to the employee.”;
(b)the substitution for the table of the
following table:
"OFFENCES AND PENALTIES
It is a
criminal offence to contravene the following provisions
Member
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