Altering hours of work constitutes unfair labour practice

The Department of Employment and Labour’s Director: Advocacy and Stakeholder Relations, Dr Pravine Naidoo, has told a seminar that it is an unfair labour practice for an employer to unilaterally alter hours of work or other conditions of employment in implementing the National Minimum Wage (NMW).

Dr Naidoo was addressing an advocacy seminar in Mthatha, in the Eastern Cape on Tuesday held under the theme “Paying the National Minimum Wage is the Right Thing to Do”.

“If in the context of the implementation of the NMW, the employer reduces hours of work, that will be regarded as an unfair labour practice. The Inspector shall advise the employee to refer the unfair labour practice to the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relation Act 66 of 1995 (LRA) as amended -sections 191, 193, 194(4) and 195,” Dr Naidoo said.

Naidoo said the NMW does not include payment of allowances such as transport, tools, food or accommodation, payments in kind, board or lodging, tips, bonuses nor gifts unless it is specified in the Sectoral Determinations.

He warned employers to refrain from making deductions without employee/s agreeing in writing or there is a debt specified in the agreement or the deduction is required or permitted by law, collective agreement, court order or an arbitration award or where a deduction is as a result of loss or damage to reimburse the employer.

In dealing with amendments to the Basic Conditions of Employment Act (BCEA), Unathi Ramabulana, told the seminar that Sectoral Determinations established under the BCEA remain effective as they also regulate conditions of employment that are peculiar than what the BCEA provides, whereas the National Minimum Wage Act regulates the national minimum wage that employers should pay to workers.

Ramabulana told the seminar that the CCMA has jurisdiction to conciliate and arbitrate disputes brought directly to it by an employee earning below the threshold (R241 110.59 per year) for any amount owing in terms of the National Minimum Wage Act, a contract of employment, a sectoral determination or a collective agreement.

“An employer who is found to have failed to comply with the NMWA will be fined by a labour inspector an amount equal to twice the value of the underpayment or twice the monthly wage, whichever is greater for first time offenders and an amount equal to thrice the value of the underpayment or thrice the monthly wage, whichever is the greater, for repeat offenders,” Ramabulana said.

Meanwhile, CCMA Acting Regional Commissioner, Christopher Blayi, explained the BCEA and NMWA related disputes referral processes to the Commission. He told the seminar that the Commission offers administrative support to those earning below the threshold.

The three day seminar continues today with businesses, business organisations as well as organised labour.