2024 national minimum wage

2024 national minimum wage

2024 national minimum wage

On 2 February 2024, the Minister of Employment and Labour published the revised national minimum wage in the Government Gazette. The amended minimum wage is scheduled to take effect on 1 March 2024.

COMPLY WITH LABOUR LAW

As an employer, it is crucial to consistently comply with labour legislation, including any amendments or corrections issued by the Department of Employment and Labour. In light of this, it is essential that you adjust the national minimum wage rate for your employees, ensuring compliance with the amended national minimum wage effective from 1 March 2024.

GOVERNMENT GAZETTE

DO YOU PAY AT LEAST THE NATIONAL MINIMUM WAGE?

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Contact the LWO for assistance at 0861 101 828 or send an email to info@lwo.co.za to ensure you follow the correct procedure when adjusting an employee’s compensation, or if you have any queries in this regard.

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Contact the LWO for any advice or assistance!

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Commission workers in the restaurant industry

Commission workers in the restaurant industry

Commission workers in the restaurant industry

Restaurant owners often employ people on a commission basis within their restaurant usually in an attempt to gain assistance.  What many employers do not realise is that this type of employment, which is almost always verbally concluded, has its own requirements and rights conferred which must be adhered to. Often employers end the contract summarily when they don’t want or need the employee anymore for whatever reason and then have to face the consequences of an unfair dismissal at their respective Bargaining Councils*.

COMMISSION WORK:  THE DEFINITION

In order to understand and adhere to the requirements, it is necessary to first explain its definition: in the restaurant industry “commission work” is defined as a worker taking on the role of a waiter and earning a salary through the commission or “tips” he/she earns. The worker will then be paid on the day or as agreed in terms of the contract or the respective Bargaining Council’s main collective agreement.

 

The most important requirement that employers need to be aware of, is that this agreement between the parties needs to be in writing. This is to protect both the employer and employee’s rights should a dispute arise. The contract should also state whether the employee would be employed permanently or only for a fixed term.

ADDRESS THE FOLLOWING

The following points need to be addressed in the contract:

 

  • The worker’s rate of commission.
  • The basis for calculating commission.
  • The period over which the payment is calculated (the Bargaining Councils’ main collective agreements restrict this period to one month).
  • When the employer shall pay the commission to the employee (the Bargaining Councils’ main collective agreements restrict this period to not more than seven days after the end of the earning period).
  • The type, description, number, quantity, margin, profit or orders (individual, weekly, monthly or otherwise) for which the employee is entitled to earn commission.

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COMMISSION VS A MINIMUM WAGE?

Because these workers do not earn a fixed salary, there is a possibility of them not earning any, or enough commission even if they have worked in terms of the agreement. Therefore, the respective main collective agreements require employers to comply with the regulations of the National Minimum Wage Act 9 of 2018 to ensure that commission workers are still paid the minimum wage if they do not earn an amount equivalent or exceeding that of the minimum wage. Employers should therefore compare the amount of commission the employee has earned to the number of hours worked. If the commission does not reach the equivalent of the minimum wage per hour worked, then the employer has the responsibility to pay the difference.

AVOID THIS MISTAKE

Many employers make the mistake of thinking that because the employee only earns commission, the employee is not in fact an “actual employee of the business” and they therefore don’t have to comply with employment procedures as with a normal employee.  Legislation and case law confirms that commission workers are considered employees in terms of their contracts.  Non-compliance with labour law can have a huge financial impact, especially when it comes to termination of the employment relationship, and employers should take care to be informed about their duties and responsibilities.

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EMPLOYMENT CONTRACTS

An employment contract is crucial in managing labour relations as it is the basis of the relationship between the employer and the employee.  It defines the terms and conditions as agreed upon between the parties and regulates their relationship.  Furthermore, the employment contract describes rules and responsibilities to be adhered to by both the employer and the employee.  The employment contract is vital to keep confusion and discontent in the working relationship to a minimum.  By including additional information in the employment contract employers empower themselves and can proactively manage possible future disputes, saving time and money.

 

*“Bargaining Councils” refers to the Bargaining Council for the Restaurant Catering and Allied Trades (Johannesburg); Bargaining Council for the Food Retail, Restaurant, Catering and Allied Trades (Pretoria) and the Bargaining Council for the Fast Food, Restaurant, Catering and Allied Trades (Rest of South Africa) as a collective.

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Layoffs

Layoffs

Layoffs

Businesses operate in a challenging environment where the economy and other external factors can limit their ability to remain competitive and sustainable in the labour environment. To overcome these challenges, businesses can consider a range of options, including reorganising, restructuring, and even implementing layoffs (retrenchment).

 

Employers must consider many aspects to limit their risk in relation to the process and payment of severance pay.  It is essential that employers always follow the correct procedure as required by labor law when considering any changes to employees’ terms and conditions of employment, especially when there is a possibility that employees may lose their jobs as a result.

LAYOFFS:  CONSULTATION PROCESS

Before an employer can consider any layoffs, they must follow a strict procedure as outlined in the Labour Relations Act. Consultations form an extremely important part of this process and include the following:

 

  • Written notice: Employers must notify employees of the intended consultation by means of a written memorandum with at least 48 hours’ notice before the consultation.  Each employee must sign a copy of the memorandum as proof of receipt.  It is important that employees have the opportunity to prepare for the consultation and find possible alternative workable solutions.  If an employee is a member of a trade union, the trade union must also be notified of the consultation.
  • First consultation: Consult with the employees to discuss the content of the notice.  The purpose of the consultation is for the employer to give employees an opportunity to make representations regarding the proposed layoffs.  Both parties now have the opportunity to discuss alternative considerations.  The employer must at all times act in good faith and keep an open mind throughout the process and give serious consideration to all alternative proposals presented.  The consultation must be held with all potentially affected employees and/or the union.
  • Alternatives: All alternatives presented during the consultation must be investigated and discussed.  If the alternatives are not workable and there are no further alternatives, the process can be concluded.  Employees affected by the layoffs must be informed of this in writing and receive the necessary documentation. The notice period begins when the employee becomes aware of the layoff.

    If an employee suggests at any given moment during the consultations that they can be laid off voluntarily, the employer can accept it as such.  However, if an employee chooses voluntary redundancy, they must be aware that they will not be able to claim unemployment benefits from the Unemployment Insurance Fund.

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TAKE SPECIAL NOTE

Employers must take special note of the following:

 

  • Do not pre-identify employees to be laid off.
  • The reason for layoffs must be fair.
  • All parties must be consulted with.
  • Selection criteria must be fair and objective.
  • The final payment of remuneration must be correctly calculated and paid out.

WHAT IS “SEVERANCE PAY”?

An employer must pay “severance pay” to an employee who is laid off.  This severance package is normally equal to at least one week’s compensation for each completed year of continuous service.  However, the amount can vary depending on industry-specific legal provisions.

 

In addition to the severance pay, the employer must also pay the following as part of the final payment of remuneration:

 

  • Salary up to and including the last working day.
  • Accumulated leave.
  • Payment for notice period, even if the employee is not required to work the notice period.

Employers must comply with strict requirements set by labour legislation.  Compliance is non-negotiable and requires specialist knowledge, which poses a business risk for the employer.

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Compulsory legal posters in the workplace

Compulsory legal posters in the workplace

Compulsory legal posters in the workplace

Article supplied by Beehive OH&S.

People attempting to sell legal posters (wall charts) are on the increase. Some of these persons pretend to be representatives from the Department of Employment and Labour to sell their products.

There are various legal posters available in South Africa. These include wall charts of the Basic Conditions of Employment Act, Employment Equity Act, Occupational Health and Safety Act, Labour Relations Act, Skills Development Act, Tobacco Products Control Act, Compensation for Occupational Injuries and Diseases Act, the POPI Act, etc.
A wall chart is a summary of legislation and should be displayed where it can be seen and read by all employees to raise awareness of the legislation. By law, employers are obligated to display certain legal posters in the workplace. Although it is good practice to display all of the abovementioned posters, it might become a costly exercise.
According to law, businesses are obligated to display two wall charts. These two compulsory wall charts are the Basic Conditions of Employment Act (Act 75 of 1997), as amended, and the Employment Equity Act (Act 55 of 1998), as amended.
It is important to have a closer look at the prescriptions relating to the two compulsory wall charts, other prescribed health and safety notices, as well as a copy of the Occupational Health and Safety Act.
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Compulsory legal posters (wall charts):

  • Summary of the Basic Conditions of Employment Act (BCEA):

    Section 30 of the BCEA, as amended, requires all employers to display the employee’s rights at the workplace. It must be in the prescribed form and displayed in the official language(s) spoken by employees at the workplace.

  • Summary of the Employment Equity Act (EEA):
    Section 25(1) of the EEA, as amended, requires employers to display a summary of the Act. “An employer must display at the workplace, where it can be read by employees, a notice in the prescribed form, informing them about the provisions of this Act.”

Prescribed health and safety notices:

According to the prescriptions of the General Machinery Regulations (GMR) of the Occupational Health and Safety Act (Act 85 of 1993) (OHSA), as amended, employers with boilers as well as employers with machinery other than boilers on their premises must display certain notices:

  • Employers with boilers on their premises:
    Regulation 9(2) of the GMR requires employers with boilers on the premises to display a copy of Schedule C. This Schedule must be in a legible form in a conspicuous place on the premises.
  • Employers with machinery other than boilers on their premises:
    Schedule D of the GMR requires employers with machinery other than a boiler to display a copy of Schedule D. This Schedule must be in a legible form and displayed in a conspicuous place.

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Top 3 frustrations in the workplace

Top 3 frustrations in the workplace

Top 3 frustrations in the workplace

Frustrations in the workplace are not uncommon and can negatively impact productivity and morale. Research shows that the average adult gets angry at least once a day and frustrated or annoyed about three times daily. In the employer-employee relationship certain behaviour can lead to a lot of frustration.
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The top three frustrations are as follows:

  • Absenteeism and poor punctuality:

    Absenteeism and poor punctuality are one of the biggest frustrations and a huge time waster in the workplace. Apart from the employee who does not provide services according to agreed hours, absence negatively impacts the team.  Aside from not being at work, absenteeism also means arriving late, leaving early, unauthorised breaks, extended breaks, feigned illness, and other unexplained absences from the workstation or premises.

    How to deal with it:
    It is the employee’s duty to commence and end duties at the times required by the employer.  When employees do not follow the rules, employers have the right to act.  Three important steps include:

    • Interview the employee and record what he/she says;

    • The employee has to prove that the absence was justified;

    • The employee may produce reasons, but even if a reason is valid it can still be unacceptable – apply the disciplinary code.  Always apply progressive discipline according to the seriousness of the offence and keep detailed record thereof.

 

  • Insubordination:
    Insubordination is defined as “resistance to or defiance of authority, disobedience, refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, bringing the employer’s name into disrepute, and rebellious or mutinous behaviour resulting in an actual work stoppage”.  The most common form of insubordination is when employees wilfully disobey the employer’s instructions.

    How to deal with it:
    Apply progressive discipline.  Take note that in order to prove ‘insubordination’, the employer has to prove that the instruction was performable, fell within the scope of the employee’s duties, was reasonable, and that the employee wilfully refused to obey the instruction.

 

  • Poor work performance:
    Poor work performance is the failure of an employee to reach and/or maintain the employer’s required work performance standards.  This has a huge impact on a business’s normal operations, as most employers don’t have the luxury of spare capacity concerning their workforce to compensate for this deficit.

How to deal with it:
Firstly, it is crucial to differentiate between misconduct and incapacity, as this will determine what process the employer should follow to address the issue:

 

    • Misconduct refers to an employee’s failure to adhere to the employer’s rules and policies, and is a behaviour issue of the employee. Such behaviour is normally deliberate or negligent, and employees can be held accountable for their actions.

    • Incapacity refers to when an employee is incompetent and inherently unable to meet fixed performance standards whether due to ill health or poor work performance.  The employer is required to provide an employee with training and guidance, as well as the opportunity to improve, where the employee lacks the required skill or knowledge to perform a certain task.

Labour law pothole!

Frustrations can easily lead to impulsive or explosive reactions.  When the employer dismisses an employee in the heat of the moment without following the correct procedure, it can lead to an unfair dismissal dispute at the CCMA where the employer can face an award to pay up to 12 months compensation to the employee and/or reinstatement.

Each workplace is a unique environment and should be evaluated accordingly in terms of labour relations. Employers are tasked to follow a progressive approach to discipline and to always support an employee to improve on his/her work. This approach not only limits frustration but leads to a better work environment for all.

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The employer’s guide to South Africa’s Employment Equity Amendment Act

The employer’s guide to South Africa’s Employment Equity Amendment Act

The employer’s guide to South Africa’s Employment Equity Amendment Act

President Cyril Ramaphosa signed the Employment Equity Amendment Act. This Amendment Act introduces several significant changes that will reshape the landscape of employment practices in South Africa.

Employment Equity Amendment Act – Prominent changes are as follows:

  • Revision of the definition of a ‘designated employer’:
    From 1 September 2023, only employers with 50 or more employees will be considered designated employers. The total annual turnover that was previously also taken into account will no longer be a consideration.

  • Numerical targets for each sector:
    The Minister of Employment and Labour was given the power to identify national economic sectors and establish numerical targets for each sector.

  • Certificate as a compliance requirement:
    The introduction of a certificate as a compliance requirement has significant implications for employers regarding agreements with the state. In order to enter into contracts with government entities, designated and non-designated employers must obtain a certificate of compliance issued by the Department of Employment and Labour.
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With the revised definition of a designated employer, smaller employers will be positively affected by a change in the definition of “designated employer”. Only businesses employing 50 or more employees will have a specific obligation to implement corrective action measures. This change aims to create more opportunities for historically disadvantaged individuals, including marginalised racial and gender groups, by promoting their representation in the workplace.
The Minister’s authority to set numerical targets for different economic sectors means that transformation objectives will be tailored for each industry. This targeted approach seeks to address specific challenges and historical imbalances within each sector. As a result, employees working in sectors such as agriculture, finance, insurance, education and others are likely to witness greater efforts by employers to promote diversity and inclusion, providing them with a more equitable work environment.
The introduction of the compliance certificate indicates a strengthened commitment to the enforcement of fair employment opportunities.
An amendment to section 21 of the Employment Equity Act, which deals with the reports as well as their annual submission by designated employers, omits a specific date for this annual submission. This amendment empowers the Minister to make regulations regarding the requirements for employers when submitting their employment equity reports.
The Amendment Act introduces robust compliance measures to promote meaningful change. Employers are required to submit detailed workforce profiles and statistics to the Department of Employment and Labour, enabling the government to monitor progress. Development of employment equity plans serve as road maps for employers to achieve their diversity and inclusion goals. The Amendment Act requires employers to develop and implement these plans, which set out specific measures to promote the representation and participation of designated groups at all levels of the business.

The big question is when what should happen at this point.

Although President Cyril Ramaphosa has signed the Amendment Act, the effective date has yet to be proclaimed by the President. The Employment Equity Act, as currently applicable, is therefore valid and employers must ensure that they comply and fulfill all existing obligations.
It is clear that being proactive plays a crucial role in taking the necessary steps to comply with this legislation. In a rapidly changing world, being proactive is not just a desirable trait, but a necessity.

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