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What can I do if my employer does not pay me minimum wages?
19 February 2020
“I work as a cashier at a local supermarket. My employer keeps promising that he will increase our hourly rates to the minimum wage of R20, but he never does and we are all still working for R15 an hour. We are fed up with the situation but at the same cannot afford to lose our jobs. What can we do?”

The National Minimum Wage Act 9 of 2018 (“Wage Act”) became effective from 1 January 2019 and applies to all employers, unless a sectoral determination determines otherwise. But what happens if an employer does not pay the prescribed minimum wage, as determined by the Wage Act? Some options available are to ask the Department of Labour for assistance or approach the CCMA.

If the Department of Labour is approached with a complaint, the Department has the right to designate a Labour Inspector who will inspect the employer’s premises. During the inspection, the employer will be required to produce all documents required to be kept by employers in terms of labour legislation, including information relating to the remuneration of employees. Should the Labour Inspector have reasonable grounds to believe that there has been non-compliance with any labour legislation, including the Wage Act, the inspector can issue a compliance order giving the employer a specific time frame within which they must rectify their non-compliance. 

Should the employer fail to comply within the time period, the compliance order may be referred to the CCMA,who will subsequently issue an arbitration award requiring the employer to comply with the compliance order, if a CCMA Commissioner is satisfied that the compliance order was served on the employer and the employer has not, in the interim, referred a dispute concerning the same compliance order to the CCMA.

Another option at an employee’s disposal, is to directly approach the CCMA as it has recently attained jurisdiction in terms of section 73A of the Basic Conditions of Employment Act to deal with matters where an employee is claiming payment of monies owed in terms of the Wage Act, a sectoral determination or collective agreement. 

The CCMA will schedule the dispute for conciliation where the Commissioner will attempt to assist both parties to reach an amicable resolution. Should parties fail to reach consensus, the Commissioner will issue a certificate certifying that the dispute remains unresolved and that the matter must be arbitrated. If there are grounds for non-compliance, an arbitration award could then be issued within 14 days of the conclusion of the arbitration proceedings, wherein an employer may be ordered to comply with the Wage Act and pay all outstanding monies. 

From the above, it should be clear that you do have remedies at your disposal. If you remain unsure how to proceed or need assistance, it may be advisable to seek the help of a labour practitioner who can assist.
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