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Minimum wage exemption and other regulations in force

Publish date: 07 January 2019
Issue Number: 805
Diary: IBA Legalbrief Africa
Category: South Africa

Regulations on picketing and the process of qualifying for an exemption from paying the national minimum wage came into force on 1 January, with the 2018 Labour Relations Amendment Act and National Minimum Wage Act. Pam Saxby reports for Legalbrief Policy Watch that they were gazetted during the festive season with: a code of good practice on collective bargaining and industrial action; guidelines on conducting a secret ballot before calling a strike or lock-out; revised regulations made under the 1997 Basic Conditions of Employment Act (replacing the 1998 version, as amended in 2002, 2010 and 2014); and guidelines for the registrar when determining if a trade union or employer organisation is ‘genuine’, replacing those issued in 2003. Prescribing the process to be followed and information provided when applying for an exemption from paying the national minimum wage, the regulations also spell out the circumstances in which an exemption may be withdrawn, along with the procedures entailed. This is noting that an exemption may only be granted if the Department of Labour is satisfied not only that the applicant cannot afford to pay the minimum wage, but also that affected workers have been ‘meaningfully consulted’ – either directly or through their trade union representatives. Affordability will be determined by an enterprise’s profitability, liquidity and solvency position, which will be assessed using methodologies detailed in the regulations under ‘system notes’, along with discrepancies likely to trigger an audit.