Inspection by the Department of Labour

Labour inspectors are appointed by the Department of Labour to advise employers and employees of their rights and obligations in terms of employment, to conduct an inspection of the workplace and to investigate complaints. Labour inspectors visit the workplace in order to ensure compliance with labour law, especially the following:

  • Labour Relations Act
  • Basic Conditions of Employment Act (“BCEA”)
  • Sectoral Determination or Bargaining Council Agreement
  • Compensation for Occupational Injury and Diseases Act
  • Employment Equity Act
  • Occupational Health and Safety Act
  • Unemployment Insurance Act

Before such an inspection, the employer has the right to first verify the identity of the person claiming to be a labour inspector, before granting the person access to the workplace.

How to verify the identity of a labour inspector

A labour inspector is appointed by the Minister of Labour and is issued with a certificate that states the following:

  • that the person is a labour inspector appointed by the Department of Labour;
  • the legislation the labour inspector may monitor; and
  • the functions the labour inspector may perform.

There are cases where persons impersonate labour inspectors, wanting to gain access to the workplace for various reasons. Therefore it is vital for the employer to exercise his/her right to verify the identity of the person claiming to be a labour inspector and insist on a certificate and proper identification. Should the person not have the relevant documentation on hand, the employer can refuse him/her access to the workplace or contact the Department of Labour directly.

It is important to note that a labour inspector may not charge a fee for the inspection or any advice or assistance. A labour inspector may also not sell posters, products or information. The Department of Labour does not delegate any third party to conduct an inspection on behalf of the Department of Labour – none of the Department of Labour’s powers may therefore be delegated.

Access to the workplace

Labour inspectors may enter the following workplaces at any reasonable time without notice or a warrant, to monitor and enforce compliance with labour legislation: premises where business is conducted, where training of employees take place and registered employment offices. Residential premises are not excluded from labour inspections but a labour inspector may enter a house only with the consent or written authorisation from an owner or tenant.

In some instances a labour inspector will notify employers of a planned visit. Questions that will be asked and addressed during the inspection are usually included in such a notification. A checklist is also available on the Department of Labour’s website.

A labour inspector will usually check the following during an inspection:

During an inspection a labour inspector will check various points in terms of compliance with labour legislation and can request copies of employment contracts and payslips. Labour inspectors in some instance also interview one or two of the employees. Other points for inspection include:

  • Proof of registration with the Workman’s Compensation Fund and Unemployment Insurance Fund, as well as proof of the last payments made.
  • Is there a summary of the following legislation displayed in the workplace?
    • Basic Conditions of Employment Act
    • Employment Equity Act
    • Occupational Health and Safety Act and the Regulations – this Act only needs to be displayed when the employer has five or more employees.
  • Is there a Health and Safety Representative as well as committee members where applicable appointed in the workplace? This appointed person should have a letter of appointment and the labour inspector will request the minutes of the previous meetings that were held.
  • Are the employer and employees trained to recognize health and safety problems? Examples include:
    • Are moving parts like drive belts and chains guarded?
    • Are chemicals used safely and stored in a safe place?
    • Are emergency exits clearly marked and easily accessible?
    • Are fire extinguishers accessible and serviced regularly?
    • Are flammable materials stored and used correctly, for instance not near fires?
    • Are all electrical wires insulated and proper plugs used in your workplace?
  • Does the employer have fully equipped first aid boxes on the premises?
  • Does the employer report occupational injuries and deceases to the Department of Labour?
  • Does the employer have clean and hygienic toilets and washing facilities provided for male and females?
  • Does the employer have an attendance register at your workplace?
  • Does the employer have the applicable Sectoral Determination or Bargaining Council Agreement available for the employees?
  • Does the employer pay at least the prescribed minimum wage where applicable?

Consequences of non-compliance

Amendments to the BCEA (which came into effect during December 2014) resulted in the grace period to comply in cases of non-compliance, to fall away. Labour inspectors can now immediately issue a compliance order. Legal implications and consequences for the employer in cases of non-compliance can include fines (between R300 (minimum) to R1500 (maximum) per employee) and imprisonment (one year (minimum) to six years (maximum)). Recent amendments to the BCEA have resulted in fines and imprisonment having tripled.

Employers cannot afford not to address registration and have labour related documentation, policies and procedures implemented in their businesses. Not only does it minimise the risk of disputes and uncertainty between employers and their employees, but it also ensures that the most prevalent labour legislation specific to the industry is complied with.

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LWO Regsadviseur - LWO Legal Advisor

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