Many employers are unaware that trade unions may acquire certain organisational rights within the workplace if they meet the required level of representation. These rights are regulated by the Labour Relations Act 66 of 1995 (LRA) and allow trade unions to perform specific functions in representing their members. It is therefore important for employers to understand the scope of these rights, when they may arise and what obligations they may place on the employer.

The key organisational rights that trade unions may seek to exercise in the workplace include:

1. Trade union access to workplace

Any official or office bearer of the trade union is allowed to enter the employer’s premises in order to recruit new members, serve their members’ interests and hold meetings, or to conduct any ballot in terms of their constitution. It is important to note that trade unions are limited to meeting with their members outside normal working hours unless agreed otherwise. Employers should take care to conclude a collective agreement with the relevant trade union to give timeous notice of their intention to exercise this right i.e. 48 hours’ notice before conducting a ballot.

2. Deduction of trade union subscriptions or levies

This right confers that employers deduct the trade union’s levies from their members and pay the monies to the trade union. This right is subject to the employee’s authorisation which may be revoked by giving the necessary notice. When remitting the monies to the trade union, the employer must give such trade union:

• A list of the names of every member from whose wages the employer has made the deductions that are included in the remittance;
• Details of the amounts deducted and remitted and the period to which the deductions relate; and
• A copy of every notice of revocation, if applicable.

3. Trade union representatives

A registered trade union, or two or more unions acting jointly, that represent the majority of employees in the workplace, are entitled to elect a trade union representative (shop steward) by its members.  The representative will be responsible for representing employees in disciplinary and grievance proceedings, as well as monitoring the employer regarding compliance with labour law and any collective agreement. The representative can also take time off to fulfil his duties and to be trained in his functions.

4. Leave for trade union activities

Any employee who is an office-bearer of a representative trade union may take reasonable leave to complete or fulfil the obligations of his or her office. The employer and trade union may agree to the number of leave days, how many leave days will be paid, and any conditions attached thereto.  Employers should note that leave for trade union activities is additional to the employee’s annual paid leave.

5. Disclosure of information

By acquiring this right, the trade union may require the employer to disclose relevant workplace information to the trade union in order to allow the trade union to effectively perform its functions or engage in collective bargaining. It is important to note that there are restrictions on the information which may be disclosed (i.e. information which is legally privileged or information that would amount to the contravention of any law or court order if disclosed). Employers should consult their legal advisors to make sure that they do not disclose information that they are not allowed to disclose.

Recognition of trade union organisational rights

It is important to note that these organisational rights are not automatically granted to trade unions. A trade union must follow a process to first seek recognition of the relevant rights from the employer. Where the parties are unable to reach agreement, the matter may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation. If conciliation is unsuccessful, the dispute may proceed to arbitration, where a commissioner will issue a binding ruling. Alternatively, the trade union may elect to pursue protected strike action in respect of organisational rights.

The extent of the rights that a trade union may acquire largely depends on its level of representation in the workplace. Trade unions with sufficient representation (dependant on the workplace, but generally around 25% of the employees in the workplace) may obtain limited organisational rights, such as access to the workplace and the deduction of union subscriptions. Whereas trade unions that represent a majority of employees in the workplace (50% + 1) may, qualify for the full range of organisational rights discussed above.

Employers are lastly encouraged to seek further legal advice if approached by a trade union aiming to exercise these rights. This is essential to ensure adherence to statutory procedures and to mitigate any potential disruptions or risks in the workplace.

Contact the LWO for any advice or assistance!

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South Africa’s labour environment is strictly regulated and employers must manage labour relations in line with legislation. The basic principles employers should follow seldom change and once in place, only minor amendments are necessary in line with updates.  Here are 10 tips for employers:

1. Ensure you have an employment contract in place with every employee 

The employment contract is the most important document in the workplace and forms the basis of the relationship between the employer and employee. This is one of the key tips to protect your rights as the employer and to ensure that there is no uncertainty. Be sure not to settle for a generic employment contract but rather opt for a purpose-built one according to your business needs.

2. Use a fixed term contract carefully and ensure compliance with legislation 

A fixed term contract may not be used for a probation period. It should only be used when there is work for a temporary period. A fixed term contract may only be for a period of three months, unless there is a justifiable reason stipulated in the contract for the extension beyond three months. If an employee has a fixed term contract beyond three months without a valid reason or the employee has no contract at all, the employee may very well be regarded as a permanent employee until the contrary is proven.

3. Implement a formal retirement age

Legislation does not prescribe a retirement age in the private sector. Employers should decide what the retirement age in the workplace should be considering the type of work the employees are expected to do. Only one retirement age should be implemented for all employees to avoid unfair discrimination.

4. Pay the correct wages in terms of the employer’s specific sector

A new national minimum wage is published every year from 1 March for employers that do not resort under a Bargaining Council or a Sectoral Determination prescribing specific wages. Employers should ensure that they pay at least the current minimum wage applicable to their industry for the period of the payment concerned. If an employer is registered under a specific sector, the employer should ensure compliance with that sector’s published wages.

5. Keep a copy of the legislation specific to your industry

Whether the employer resorts under a Sectoral Determination or a Main Collective Agreement of a Bargaining Council, employers are expected to have the applicable legislation available in the workplace for employees to peruse.

6. Display the legally required legislative posters in the workplace

Employers are expected to display updated copies of the Basic Conditions of Employment Act, Employment Equity Act and Occupational Health and Safety Act.

7. Ensure you have a disciplinary code implemented

The disciplinary code should be specific to your workplace. It is important to ensure that there are clear rules in the workplace for employees to follow. Discipline should be applied progressively and consistently. All employees should be aware of the disciplinary code. Arrange a consultation with all employees where the rules are discussed and the employees are given the opportunity to ask questions. Keep an attendance register and minutes of the meeting as proof that it was brought to the attention of the employees.

8. Have a disciplinary hearing prior to dismissing an employee

A dismissal for workplace misconduct should be procedurally and substantively fair. Procedural fairness on the one hand, includes informing the employee in writing of the charges brought against him/her. The charges should be clear and unambiguous. Allow at least 48 hours’ notice (excluding weekends and public holidays) of the hearing to grant the employee sufficient time to prepare for the hearing. An employee has the right to representation by a co-employee, to present their case, to call witnesses, to question the evidence of the employer’s witnesses and to be informed of the outcome of the hearing in writing. It is important for an independent chairperson to chair the hearing. Substantive fairness on the other hand, is having valid grounds to dismiss an employee. An independent chairperson will make a recommendation based on the facts and in terms of the workplace disciplinary code and will assess if there are sufficient grounds to dismiss the employee.

9. Implement an attendance register

All employees are required to record hours worked on a daily basis.

10. Ensure you are legally compliant and registered where necessary

All employers must be registered with the Unemployment Insurance Fund (UIF) and the Compensation Commissioner for any injuries or diseases employees sustain whilst on duty.

Even though these principles are basic, it should still be done on the advice of labour professionals and also correctly to avoid arbitration awards against an employer.

Contact the LWO for any advice or assistance!

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Sick leave is one of the most abused forms of leave in South African workplaces, often because it is misunderstood. Sick leave gives an employee the opportunity to be absent from work when he/she is unable to work due to illness or injury, without losing income. Employers should fully understand the requirements and responsibilities to limit unnecessary costs and proactively manage the business risk linked to labour.

The sick leave cycle

The Basic Conditions of Employment Act 75 of 1997 (BCEA) states that an employee is entitled to six weeks of paid sick leave during each sick leave cycle of 36 months. This is equivalent to 30 days for an employee with a five day workweek or 36 days for an employee with a six day workweek.

This leave cycle begins, regardless of a probation period, on the first day of employment. Please note that newly appointed employees are only entitled to one day of paid sick leave for every 26 days worked during the first six months of employment. Paid sick leave taken during the first six months of employment can then be deducted from the total number of days available in the leave cycle.

Remember that employees are only entitled to sick leave when they are truly too ill to perform their duties.

Is it paid or unpaid?

The employer must first determine whether the employee has sick leave at his/her disposal. If so, the employer must then determine whether a medical certificate is required. A medical certificate must be provided if an employee is absent for more than two work days, or is absent on more than two occasions within an eight week period, even if the absences consist of one day each time. If the employer requests the certificate and no valid certificate is provided, the employer is not obliged to pay the employee for the sick leave taken.

If the employee does not have paid sick leave available, the employer has two options:

1. to treat it as unpaid leave; or
2. to give the employee the option to treat it as paid leave and deduct it from the employee’s annual leave.

In terms of the BCEA, an employer is not obliged to pay an employee if the employee has no available sick leave days, does not provide a valid medical certificate when the employer requires it, or is absent without the employer’s permission.

Abuse of sick leave

When a valid medical certificate is provided, this absence should generally be treated as a form of incapacity as the employee is inherently unable to meet the employer’s set operational standards due to a temporary medical condition. However, when the employer suspects that sick leave is being abused, it is important to follow a fair process to investigate the allegation of misconduct.

Employers may also question suspicious medical certificates, investigate and take disciplinary action if fraud took place.

Ask the following questions as part of your investigation to determine whether an employee’s conduct amounts to misconduct and whether it may indicate the need to initiate a medical disability investigation:

• Is the employee taking a higher number of sick leave days than usual in a short period of time?
• Is the employee’s sick leave exhausted and if so, should the employer consider other labour law aspects of a medical disability investigation?
• Do the dates of sick leave taken suggest a pattern, i.e. is the employee typically sick on Mondays and Fridays, before or after a public holiday, or off sick after payday?
• Did the employee submit valid medical certificates?
• Is there any evidence that may indicate other reasons for the employee’s absences e.g. domestic problems, family responsibilities etc.?

If an employee is regularly absent, it may also indicate that the employee is truly suffering from ill health and possibly that the employer should initiate a medical disability screening process to determine whether the employee is still able to perform his or her duties and meet the employer’s set operational standards.

Sick leave is only for the employee’s own temporary medical disability and not for their family members. Many employees still mistakenly believe that sick leave can be used when a family member is ill. This is not true. The law clearly states that sick leave is only for the employee’s own illness or injury.

It is important that employers deal with workplace issues as quickly and effectively as possible, while taking care to act objectively and consistently. By being proactive, the employer can greatly contribute to the sustainability and profitability of the business and promote a work environment with limited conflict, friction and misunderstandings, which in turn creates a structured environment that is receptive to growth.

This article is written for employers who resort under the BCEA, if you have any queries regarding your industry, contact the LWO for expert advice.

Contact the LWO for any advice or assistance!

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Timely discipline is essential for maintaining trust, fairness and stability in the workplace. When employers delay disciplinary action after misconduct occurs, it creates the impression that rules are not taken seriously. Employees start to feel uncertain about expectations and those who follow the rules may lose motivation to do so when misconduct goes unaddressed. Over time, delayed action undermines trust and can cause tension or conflict, especially when employees believe the employer is acting inconsistently or showing favouritism.

Delays

A delay in responding to misconduct can unintentionally worsen the situation and may make it seem like the employer is condoning the behaviour. Employees may assume their behaviour is acceptable, which makes it more difficult for employers to later prove that the employment relationship has been damaged beyond repair. The longer the delay, the weaker the employer’s position becomes, both practically and legally.

Delays in bringing charges often create the perception that the employee is being unfairly targeted. Such delays may suggest that the misconduct was not serious enough to warrant discipline, or that the disciplinary action was motivated by hidden reasons rather than the alleged misconduct itself.

Labour law principles

Labour law principles require that disciplinary processes be initiated and concluded within a reasonable period. Any excessive or unexplained delay may render the procedure unfair, even where the misconduct is serious. Hearings should therefore be scheduled and finalised within a reasonable timeframe after the misconduct is discovered. Undue delays can create the impression that the employer has waived disciplinary action and, in many cases, may prejudice the employee.

When misconduct occurs, it is essential to promptly investigate and gather evidence. For less serious offences, follow established processes efficiently and fairly to issue warnings before similar misconduct is repeated, thereby preserving the opportunity to take further action if necessary. In cases requiring more serious measures, such as a disciplinary hearing, charges must be accurately formulated and the employee provided with written notice to attend. Employees should be notified in writing at least 48 hours in advance – excluding weekends and public holidays – with sufficient detail of the allegations to allow adequate preparation. Adhering to this timeline ensures that evidence is collected promptly and helps prevent the deterioration of witness recollections or the loss of relevant documents.

Perceptions are formed

External stakeholders such as clients, trade unions and arbitrators also form perceptions based on how promptly a business acts. Slow or inconsistent disciplinary action may be viewed as poor leadership or weak internal controls, which can harm the business’s professional reputation and undermine confidence in its management practices. In legal proceedings, delays are often closely scrutinised, and employers must be able to justify every period of delay or inactivity. Failure to do so can lead to findings of unfairness against the employer at the CCMA or bargaining council, resulting in an arbitrator ruling in favour of the employee. In dismissal cases, such findings may lead to reinstatement (with or without back pay), re-employment, or compensation.

Ultimately, prompt and fair action strengthens trust, supports a positive working environment and protects the business legally. Addressing misconduct quickly ensures clarity, consistency and credibility both within the workplace and to the outside world.

Contact the LWO for any advice or assistance!

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In terms of the National Minimum Wage Act 9 of 2018 (NMWA), the National Minimum Wage Commission annually reviews the national minimum wage (NMW) and submits a recommendation to the Minister of Employment and Labour to adjust it. Following the latest review, the Minister published the adjusted national minimum wage in the Government Gazette:  effective 1 March 2026, the national minimum wage is R30.23 per hour for ordinary hours worked.

The Commission continues to consider factors such as inflation, the consumer price index (CPI), cost of living, collective bargaining outcomes, employment levels and the broader economic environment when making a recommendation. While the rate of the consumer price index CPI remains an important benchmark, the adjustment is not purely formula driven and may vary from a strict CPI plus calculation. This latest adjustment was calculated using CPI plus 1.5% on the previous NMW rate of R28.79 per hour.

Exemption from paying the national minimum wage

The NMWA recognises that exceptional financial hardship may justify temporary relief in the form of receiving exemption from paying the full NMW rate for a specific time period. Section 15 of the NMWA allows employers to apply for exemption through the Department of Employment and Labour’s online system. However, exemption is not automatic and is treated as an exceptional remedy.

Key requirements of an employer applying for exemption include:

• Providing a clear and substantiated reason for the application.
• Demonstrating that meaningful consultation took place with every representative trade union(s), or if there is no such trade union that affected workers have been meaningfully consulted with.
• Submitting comprehensive financial information showing genuine affordability constraints. The Regulations prescribe objective financial tests relating to profitability, liquidity and solvency. The calculation methodology for these indicators is set out in the Schedules to the Regulations and must be supported by credible financial statements.

Importantly, exemption will only be considered if the employer is fully compliant with statutory obligations, including registration and up-to-date contributions to the Unemployment Insurance Fund (UIF), compliance with the Compensation for Occupational Injuries and Diseases Act (COIDA) administered by the Compensation Fund and any other applicable statutory levies.

If exemption is granted, the employer will have to pay the wage prescribed by the Department of Employment and Labour in the exemption letter. Employers can however still expect to pay at least 90% of the national minimum wage. Exemption is only valid for a maximum period of up to 12 months and employers can expect that the period of exemption will also be stipulated in the exemption letter.

Online application process

Applications must be done online for exemption at http://nmw.labour.gov.za. In most cases, the outcome is generated immediately. Certain applications may be flagged for audit, which must be finalised within 30 days of submission.

If approved, the exemption certificate will specify the commencement date, the period of validity, the authorised wage rate during the exemption period and any additional conditions attached.

Employers are legally required to display the exemption certificate prominently at the workplace and provide copies to affected employees and representative trade union(s). If the application is refused, written reasons will be provided.

Disputes and enforcement

A dispute over non-compliance with the NMWA can land the employer in hot water with the Department of Employment and Labour. If an employer fails to comply with the NMWA, the employer can be fined:

• First time offenders: Fined an amount equal to twice the value of the underpayment or twice the monthly wage, whichever is greater.
• Repeat offenders: Fined an amount equal to thrice the value of the underpayment or thrice the monthly wage, whichever is greater.

A strategic approach to compliance

South Africa’s labour framework is detailed and enforcement driven. While minimum wage increases place pressure on already constrained businesses, non-compliance exposes employers to significant legal and financial risk.

Employers are advised to conduct regular wage audits, ensure statutory registrations remain current, and plan proactively for annual adjustments. Exemption should be viewed as a short term relief mechanism in genuine cases of distress, not a substitute for sustainable workforce planning. Sound labour law compliance remains a critical component of responsible and resilient business management.

Not all employers are subject to the NMW rate and employers should make sure they pay the correct wages in terms of the employer’s specific industry/sector.  Payroll systems, contracts and budgeting should also align with the current prescribed rate.

Employers should consult with a representative of the LWO to ensure that they pay at least the current minimum wage applicable to their industry for the period of the payment concerned.

Contact the LWO for any advice or assistance!

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Die Minister van Indiensneming en Arbeid, Nomakhosazana Meth, het op 4 Februarie 2025 die aanpassing in die nasionale minimumloon vir 2025 in die Staatskoerant gepubliseer. Die nuwe nasionale minimumloon wat reeds op 1 Maart 2025 in werking getree het is vasgestel op R28.79 per normale werksuur. Hierdie loon is van toepassing op werknemers wat resorteer onder die bestek van die Wet op Basiese Diensvoorwaardes, Wet 75 van 1997 soos gewysig (WBDV).

Nasionale Minimumloonkommissie

Ingevolge die Nasionale Minimumloonwet Wet, Wet 9 van 2018 soos gewysig (NMLW), beoordeel en hersien die Nasionale Minimumloonkommissie (die Kommissie) jaarliks die nasionale minimumloon. Die Kommissie maak daarna ‘n aanbeveling aan die Minister van Indiensneming en Arbeid om die loon aan te pas.

Die kriteria wat die Kommissie oor die algemeen gebruik om die voorgestelde verhoging te bepaal, is die verbruikersprysindeks (VPI) plus ‘n addisionele persentasiepunt (gewoonlik 1.5%). Sleutelfaktore soos voorgeskryf deur die NMLW word ook in ag geneem en sluit dit die volgende in: inflasie en lewenskoste, loonvlakke en kollektiewe bedingingsuitkomste, die Bruto Binnelandse Produk (BBP) en produktiwiteit. Verdere faktore sluit in werkgewerlewensvatbaarheid en die impak op indiensneming, asook openbare insette.

Die Departement van Indiensneming en Arbeid het op 18 Desember 2024 in ‘n mediaverklaring aangedui dat die Kommissie in sy voorlopige verslag ‘n jaarlikse verhoging in die nasionale minimumloon in die omgewing van VPI + 1.5% vir 2024/2025 ondersoek.

Gegewe inligting wat ten tye van die artikel deur Statistieke Suid-Afrika reeds beskikbaar was kan ons sien dat die VPI met 0.1% verhoog het van 2.9% vir November 2024 tot 3.0% vir Desember 2024, wat die nasionale minimumloonverhoging dus op ongeveer 4.4% bereken het. Die Kommissie het in ooreenstemming hiermee, dié voorstel gemaak aan die Minister.

Dit is wel interessant dat die nuwe loon ook in lyn is met die algehele gemiddelde VPI vir 2024 van 4.4% soos gepubliseer deur Statistieke Suid-Afrika vroeër die jaar.

Kwytskelding

As ‘n werkgewersorganisasie weet ons besighede word bedryf in ‘n uitdagende omgewing. Die nasionale minimumloon met gepaardgaande verhogings plaas dikwels bykomende druk op werkgewers aangesien daar nie oor die betaling van die loon onderhandel kan word nie. Dit is wel belangrik dat werkgewers weet dat hul versuim om aan die NMLW te voldoen kan lei tot fel boetes.

Die NMLW bepaal dat indien werkgewers nie die nasionale minimumloon kan bekostig nie, hulle aanlyn kan aansoek doen om kwytskelding (http://nmw.labour.gov.za). Indien kwytskelding toegestaan word, sal die werkgewer steeds minstens 90% van die nasionale minimumloon moet betaal. Kwytskelding is geldig vir ‘n periode van maksimum 12 maande.

As deel van die kwytskeldingsaansoek moet die werkgewer ‘n goeie rede vir die kwytskelding verskaf, asook bewys dat daar sinvol met werknemers en verteenwoordigende vakbond(e) gekonsulteer is waar van toepassing. Die regulasies bepaal verder dat so ‘n aansoek nie toegestaan sal word indien die werkgewer nie aan die bekostigbaarheidselemente ten opsigte van winsgewendheid, likiditeit en solvensie voldoen nie. Die berekeninge vir hierdie toetse word ingesluit as deel van die skedules tot die wet. Kwytskelding sal slegs oorweeg word indien die werkgewer op datum is met alle wetlike betalings, insluitend die Werkloosheidsversekeringsfonds, die Beroepsbeserings- en vergoedingsfonds (Vergoedingskommissaris) en enige ander toepaslike heffings.

Die uitkoms sal die datum van inwerkingtreding van kwytskelding bevestig, asook die tydperk waarvoor dit toegestaan word, die lone wat die werkgewer verplig is om te betaal en enige ander relevante voorwaardes. Indien kwytskelding toegestaan word, moet ‘n afskrif van die kwytskeldingsertifikaat in die werksplek vertoon word, asook aan die betrokke werknemers en verteenwoordigende vakbond(e) waar van toepassing verskaf word. Indien die aansoek onsuksesvol is, sal die werkgewer ‘n kennisgewing ontvang met die redes vir die weiering.

Hierdie artikel is bedoel om geag te word as algemene inligting en is nie bedoel om geag te word as regsadvies nie en werkgewers word aangeraai om ons te kontak om die korrekte minimum loon te bevestig wat op hul spesifieke bedryf van toepassing is, aangesien dit kan verskil van die nasionale minimum loon soos hierbo uiteengesit.

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