CHAPTER EIGHT SECTORAL DETERMINATIONS (ss 51-58)

51. Sectoral determination

The Minister may make a sectoral determination establishing basic conditions of employment for employees in a sector and area.

A sectoral determination must be made in accordance with this Chapter and by notice in the Gazette.

If any sectoral determination at the date of the promulgation of the National Minimum Wage Act, 2018, prescribes wages that are higher than the national minimum wage, the wages in that sectoral determination and the remuneration and associated benefits based on those wages must be increased proportionally to any adjustment of the national minimum wage in terms of the National Minimum Wage Act, 2018.

Notwithstanding the provisions of any sectoral determination, an employer must pay a leaner an allowance as prescribed in Schedule 2 of the National Minimum Wage Act, 2018, as is adjusted from time to time, from the date the National Minimum Wage Act, 2018, comes into force.

For the purpose of subsection (4) -

'learner' means a learner as defined in Schedule 2 of the National Minimum Wage Act, 2018; and

'allowance' means an allowance as defined in Schedule 2 of the National Minimum Wage Act, 2018.

52. Investigation

Before making a sectoral determination, the Minister must direct the Commission to investigate conditions of employment in the sector and area concerned.

The Commission must, on its own accord or on the direction of the Minister, as contemplated in subsection (1), determine terms of reference for the investigation, which must include-

the sector and area to be investigated;

the categories or classes of employees to be included in the investigation; and

the matters to be investigated, which may include any matter listed in section 55 (4).

The Commission must publish a notice in the Gazette setting out the terms of reference of the investigation and inviting written representations by the public.

If an organisation representing employers or employees in a sector and area makes a written request to the Minister to investigate conditions of employment in that sector and area, the Minister must either-

direct the Commission to conduct an investigation; or

request the Commission to advise the Minister on whether the requested investigation ought to be conducted.

53. Conduct of investigation

For the purposes of conducting an investigation in terms of section 52 (1), the Commission may-

question any person who may be able to provide information relevant to any investigation; or

require, in writing, any employer or employee in a sector and area that is being investigated or any other person to furnish any information, book, document or object that is material to the investigation within a specified period, which must be reasonable.

A person may not refuse to answer any relevant question by the Commission that he or she is legally obliged to answer.

54. Preparation of report

On completion of an investigation, and after considering any representations made by members of the public, the Commission must prepare a report.

A copy of the report must be submitted to the Director - General for his or her information and the Minister for consideration.

When advising the Minister on the publication of a sectoral determination, the Commission must consider in respect of the sector and area concerned-

the report prepared in terms of subsection (1);

the ability of employers to carry on their business successfully;

the operation of small, medium or micro-enterprises, and new enterprises;

the cost of living;

the alleviation of poverty;

conditions of employment;

wage differentials and inequality;

the likely impact of any proposed condition of employment on current employment or the creation of employment;

the possible impact of any proposed conditions of employment on the health, safety or welfare of employees;

any other relevant information made available to the Commission.

The Commission must prepare a report for the Minister containing recommendations on the matters which should be included in a sectoral determination for the relevant sector and area.

55. Making of sectoral determination

After considering the report and recommendations of the Commission contemplated in section 54(4), the Minister may make a sectoral determination for one or more sector and area or as contemplated by subsection (8).

If the Minister does not accept a recommendation of the Commission made in terms of section 54 (4), the Minister must refer the matter to the Commission for its reconsideration indicating the matters on which the Minister disagrees with the Commission.

After considering the further report and recommendations of the Commission, the Minister may make a sectoral determination.

A sectoral determination may in respect to the sector and area concerned-

set minimum terms and conditions of employment, including minimum rates of remuneration;

provide for the adjustment of remuneration by way of-

minimum rates; or

minimum increases;

regulate the manner, timing and other conditions of payment of remuneration;

prohibit or regulate payment of remuneration in kind;

require employers to keep employment records;

require employers to provide records to their employees;

prohibit or regulate task-based work, piecework, home work, sub-contracting and contract work;

set minimum standards for housing and sanitation for employees who reside on their employers' premises;

regulate payment of travelling and other work-related allowances;

specify minimum conditions of employment for trainees;

specify minimum conditions of employment for persons other than employees;

regulate training and education schemes;

regulate pension, provident, medical aid, sick pay, holiday and unemployment schemes or funds;

regulate any other matter concerning remuneration or other terms or conditions of employment.

taking into account the provisions of section 21(8) of the Labour Relations Act, 1995, set a threshold of representativeness at which a trade union will automatically have the organisational rights contemplated in sections 12 and 13 of the Labour Relations Act, 1995, in respect of all workplaces covered by the sectoral determination; and

establish one or more methods for determining the conditions of service for labour tenants who has a right to occupy and to use a part of a farm as contemplated in section 3 of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996), for the purpose of section 4(3);

Any provisions of a sectoral determination may apply to all or some of the employers and employees in the sector and area concerned.

A sectoral determination in terms of subsection (1):

May not be made in respect of section 7, 43 (2), 44 or 48;

may only be made in respect of section 43 (1) to allow the employment of children in the performance of advertising, sports, artistic or cultural activities;

may not reduce the protection afforded to employees by sections 17 (3) and (4) and 25 or a regulation made in terms of section 13; and

may vary the basic conditions of employment in section 9 in the circumstances contemplated by section 50 (2A).

The Minister may not publish a sectoral determination-

covering employees and employers who are bound by a collective agreement concluded at a bargaining council;

covering employees covered by a collective agreement concluded in a statutory council regulating any matter in respect of which that statutory council has concluded a collective agreement;

regulating any matter regulated by a sectoral determination for a sector and area which has been in effect for less than 12 months.

Subject to the provisions of subsection (7), the Minister may publish a sectoral determination that applies to employers and employees who are not covered by any other sectoral determination.

56. Period of operation of sectoral determination

The provisions of a sectoral determination remain binding until they are amended or superseded by a new or amended sectoral determination, or they are cancelled or suspended by the Minister.

If a collective agreement contemplated in section 55 (6) (a) or (b) is concluded, the provisions of a sectoral determination cease to be binding upon employers and employees covered by the agreement.

The Minister may, by notice in the Gazette-

cancel or suspend any provision of a sectoral determination, either in the sector and area as a whole or in part of the sector or in a specific area; or

correct or clarify the meaning of any provision of a sectoral determination as previously published.

Before publishing a notice of cancellation or suspension in terms of subsection (3) (a) the Minister must, by notice in the Gazette, announce the intention to do so, and allow an opportunity for public comment.

57. Legal effect of sectoral determination
If a matter regulated in this Act is also regulated in terms of a sectoral determination, the provision in the sectoral determination prevails.

58. Employer to keep a copy of sectoral determination
Unless a sectoral determination provides otherwise, every employer on whom the sectoral determination is binding must-

keep a copy of that sectoral determination available in the workplace at all times;

make that copy available for inspection by an employee; and

give a copy of that sectoral determination-

to an employee who has paid the prescribed fee; and

free of charge, on request, to an employee who is a trade union representative or a member of a workplace forum.