Numerous applications for exemption and institutional failure are hampering the government’s efforts to reach its target of six million workers being paid the minimum wage instituted in January.
It has been almost nine months since the National Minimum Wage Act came into force and yet labour institutions, organised labour and employer organisations are still trying to familiarise themselves with the provisions of the act.
The Commission for Conciliation, Mediation and Arbitration (CCMA) held its third annual conference of shop stewards and union officials in mid-September, with the theme being “The national minimum wage: Post-implementation conversation”.
CCMA media liaison officer Amos Tshabalala said almost 400 delegates attended the conference.
“This year, when we advertised that we are ready for the conference of 2019, it was booked out in the first week and registration was for the whole month … We had to stop people and amend our contract to accommodate more numbers,” said advocate and CCMA director Cameron Morajane.
Among those in attendance on the first day of the conference was Congress of South African Trade Unions president Zingiswa Losi. Minister of Employment and Labour Thulas Nxesi and judge president of the labour court and labour appeals court Basheer Waglay gave the keynote addresses.
History of the conference
Speaking about the idea behind the conference and its focus on shop stewards, Morajane said “shop stewards and union officials … are [the CCMA’s] main customers that come and appear representing workers in all the different platforms and all different types of disputes. We wanted to give commissioners the benefit of having a capacitated official that appears before them, and there have been a lot of calls for such a need as well to be addressed. We then conceptualised and called it the shop stewards conference.”
Education and training is paramount for union officials and shop stewards, which is why the CCMA initiated the conference, said Morajane.
The annual national conference provides “a platform where you can bring different provinces into one room, at national level, where we could talk about matters of national importance. So, it’s not a normal training or a normal workshop. We are discussing topical issues that are of national importance,” said Morajane.
The national minimum wage, a topic that has polarised public debate, was a focal point of discussion for the two-day conference.
National minimum wage
The National Minimum Wage Act came into force on January 1 2019. It set the minimum wage at R20 an hour for most workers, but R18 for farm workers, R15 for domestic workers and R11 for public works programme employees.
In terms of the Act, excluded workers will be brought up to 100% of the national minimum wage two years after its implementation. In other words, farm workers, domestic workers and public works programme employees will receive the same minimum wage as all other workers.
National Minimum Wage Commission chair Adriaan van der Walt reminded delegates that the national minimum wage will be reviewed annually and adjusted if necessary. The objective of the annual review will be to assess the impact of the wage on the economy, bargaining and income difference. There was consensus that R20 an hour is not a living wage.
One of the union officials, Steven Majavu from the South African Commercial, Catering and Allied Workers Union (Saccawu), questioned the annual review and adjustment process.
“My question here is, what will be informing the increase of the national minimum wage? Will it be the gold price or [credit rating agency] Moody’s, or will it be CPI [the consumer price index] or will it be the workers demanding that we want a 15% increase? What will be the platform to determine the increase? We need clarity on those things,” said Majavu.
The CCMA is entrusted with a major role in the implementation of the national minimum wage. Once an employer has been issued with a compliance order or has made an undertaking with a labour inspector to comply with the wage, the CCMA can convert such an undertaking or compliance order into an arbitration award. More importantly, the CCMA can certify the award and enforce it as if it were an order of the labour court.
An employer or a registered employer organisation can apply for an exemption from the minimum wage.
The exemption is not permanent, it is for a period of 12 months. Employers can apply online and have to show that they cannot afford the national minimum wage. Additionally, they have to hold a wide and meaningful engagement with workers and union representatives in the workplace.
The act does not allow for complete exemption from the national minimum wage, only a 10% reduction. So workers entitled to earn R20 an hour can be paid R18 — R16.20 for farm workers and 13.50 for domestic workers — if the CCMA grants an employer an exemption.
Van der Walt said 475 exemption applications were received from employers between January 1 and August 19 2019. The commission granted 289 of these.
The majority of the applications came from the non-profit sector, with 124 applications affecting 19 967 workers, followed by the manufacturing sector, with 105 applications affecting 16 172 workers.
Hindrance to targets
Morajane said in his presentation to delegates at the CCMA conference that exemptions will be one of the major negatives in government reaching its target of six million workers being paid the national minimum wage. He said with 289 exemption applications already having been granted in the space of eight months, reaching the target of six million would be a difficult task.
Workers raised the issue of institutional failure at the department of employment and labour, saying employers are flouting the law and that inspectors are not able to deal with the issues. Union official Sicelo KaMagqwetha said this failure by the department will undermine the objectives of the national minimum wage.
Adding to the challenge of implementing the wage, according to Morajane, is the absence of written contracts and payslips in certain sectors. When a domestic worker refers a dispute to the CCMA, saying they are being paid below the minimum wage, “how would you know that a domestic worker is underpaid the minimum wage if there is no contract or a payslip?” A factual dispute then arises, making the matter more complex to resolve.
It must be made easier for compliance inspectors to access places of work. At the moment, the CCMA said, it is difficult for inspectors to get into private homes and farms, the places of work for domestic and farm workers. Employers hide behind the right to privacy and this should not be the case, it said.
Adding to the delay in the implementation of the minimum wage, among other reasons, is employers appealing minor CCMA decisions in the labour courts. “You can’t fight a R1 000 reward by spending R100 000” in legal costs. To avert this, policy must change to allow the CCMA to administer its own appeals, said Morajane. It is a view Waglay supports.
Reflecting on some of the expert presentations at the conference, certain workers said the language used was not accessible and was too academic.
“I don’t want to call out names, but there were professors here that were addressing mere shop stewards, academically so. Yesterday, the other professor was addressing shop stewards on statistics and was going deeper into statistics, and you could feel the house was not following,” said Majavu.
Saccawu organiser Thokozile Mchunu agreed, saying the organisers had allowed too little time for engagement and questions from delegates who wanted more clarity. But “the academics [were] given ample time to make their presentations”.
Morajane responded by saying that the CCMA would try “vigorously” in future to see the planned presentations beforehand and ask presenters to speak in a more accessible way.
“You can use narratives to show that a category that is affected badly in the benefit of the minimum wage, it’s those that work on farms and as domestic workers. But if you put that in a graph in the economic sense, they are still not following you and the language used becomes too technical.
It has been our intention that when you present, you must simplify. Albert Einstein once said, ‘If you can’t explain it simply, it means you also do not understand it,’” said Morajane.
This article was first published by New Frame.