CHAPTER TEN MONITORING, ENFORCEMENT AND LEGAL PROCEEDINGS (ss 63-81)

Part A
Monitoring and enforcement (ss 63-73)

62A. Definitions
For the purpose of Chapter 10, an employee includes a worker as defined in section 1 of the National Minimum Wage Act, 2018.

63. Appointment of labour inspectors

The Minister may-

appoint any person in the public service as a labour inspector;

designate any person in the public service, or any person appointed as a designated agent of a bargaining council in terms of section 33 of the Labour Relations Act, 1995, to perform any of the functions of a labour inspector.

Any person appointed under subsection (1) must perform his or her functions in terms of this Chapter, subject to the direction and control of the Minister.

The Minister must provide each labour inspector with a signed certificate in the prescribed form stating-

that the person is a labour inspector;

which legislation that labour inspector may monitor and enforce; and

which of the functions of a labour inspector that person may perform.

64. Functions of labour inspectors

A labour inspector appointed under section 63 (1) may promote, monitor and enforce compliance with an employment law by-

advising employees and employers of their rights and obligations in terms of an employment law;

conducting inspections in terms of this Chapter;

investigating complaints made to a labour inspector;

endeavouring to secure compliance with an employment law by securing undertakings or issuing compliance orders;

   dA. referring disputes to the CCMA concerning failure to comply with this Act, the National Minimum Wage Act, 2018, the Unemployment Insurance Act and the Unemployment Insurance Contributions Act;
   dB. appearing on behalf of the Director-General in any proceedings in the CCMA or Labour Court concerning a failure to comply with the legislation referred to in paragraph (dA);and
e. performing any other prescribed function.

A labour inspector may not perform any function in terms of this Act in respect of an undertaking in respect of which the labour inspector has, or may reasonably be perceived to have, any personal, financial or similar interest.

65. Powers of entry

In order to monitor and enforce compliance with an employment law, a labour inspector may, without warrant or notice, at any reasonable time, enter-

any workplace or any other place where an employer carries on business or keeps employment records, that is not a home; or

.... (deleted by Amendment Act, 2018)

any place at which any person provides or purports to provide any employment services as defined in terms of the Employment Services Act, 2014 (Act No.4 of 2014).

A labour inspector may enter a home or any place other than a place referred to in subsection (1) only-

with the consent of the owner or occupier; or

if authorised to do so in writing in terms of subsection (3).

The Labour Court may issue an authorisation contemplated in subsection (2) only on written application by a labour inspector who states under oath or affirmation the reasons for the need to enter a place in order to monitor or enforce compliance with any employment law.

If it is practical to do so, the employer and a trade union representative must be notified that the labour inspector is present at a workplace and of the reason for the inspection.

66. Powers to question and inspect

In order to monitor or enforce compliance with an employment law, a labour inspector may-

require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on any matter to which an employment law relates, and require that the disclosure be made under oath or affirmation;

inspect, and question a person about, any record or document to which an employment law relates;

copy any record or document referred to in paragraph (b), or remove these to make copies or extracts;

require a person to produce or deliver to a place specified by the labour inspector any record or document referred to in paragraph (b) for inspection;

inspect, question a person about, and if necessary remove, any article, substance or machinery present at a place referred to in section 65;

inspect or question a person about any work performed; and

perform any other prescribed function necessary for monitoring or enforcing compliance with an employment law.

A labour inspector may be accompanied by an interpreter and any other person reasonably required to assist in conducting the inspection.

A labour inspector must-

produce on request the certificate referred to in section 63 (3);

provide a receipt for any record, document, article, substance or machinery removed in terms of subsection (1) (c) or (e); and

return anything removed within a reasonable period of time.

The powers provided for in this Part are in addition to any power of a labour inspector in terms of any other employment law.

67. Co-operation with labour inspectors

Any person who is questioned by a labour inspector in terms of section 66 must answer all relevant questions lawfully put to that person truthfully and to the best of his or her ability.

Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a labour inspector to perform the labour inspector's functions effectively.

68. Securing an undertaking

A labour inspector who has reasonable grounds to believe that an employer has not complied with any provision of this Act , the National Minimum Wage Act, 2018, the Unemployment Insurance Act or the Unemployment Insurance Contributions Act may endeavour to secure a written undertaking by the employer to comply with the provision.

1A. A labour inspector may endeavour to secure a written undertaking by the employer to    comply with subsection (1) either by-

meeting with the employer or a representative of the employer; or

serving a document, in the prescribed form, on the employer.

In endeavouring to secure the undertaking, the labour inspector-

may seek to obtain agreement between the employer and employee as to any amount owed to the employee in terms of this Act or the National Minimum Wage Act, 2018;

may arrange for payment to an employee of any amount paid as a result of an undertaking;

may, at the written request of an employee, receive payment on behalf of the employee; and

must provide a receipt for any payment received in terms of paragraph (c).

If an employer fails to comply with a written undertaking given by the employer in terms of this section, the Director-General may request the CCMA to make the undertaking an arbitration award.

69. Compliance order

A labour inspector who has reasonable grounds to believe that an employer has not complied with a provision of this Act, the National Minimum Wage Act, 2018, the Unemployment Insurance Act or the Unemployment Insurance Contributions Act may issue a compliance order.

A compliance order must set out-

the name of the employer, and the location of every workplace, to which it applies;

the provision of this Act and any other Act referred to in subsection (1) that the employer has not complied with, and details of the conduct constituting non-compliance;

any amount that the employer is required to pay to an employee, or in the case of a failure to pay the national minimum wage, the amount that the employer is required to pay to an employee in terms of section 76A;

[deleted]

any steps that the employer is required to take including, if necessary, the cessation of the contravention in question and the period within which those steps must be taken; and

the maximum fine that may be imposed upon the employer in accordance with Schedule Two for a failure to comply with a provision of this Act.

A copy of the compliance order must be served on the employer named in it, and on each employee affected by it or, if this is impractical, on a representative of the employees.

The failure to serve a copy of a compliance order on any employee or any representative of employees in terms of paragraph (a) does not invalidate the order.

The employer must display a copy of the compliance order prominently at a place accessible to the affected employees at each workplace named in it.

An employer must comply with the compliance order within the time period stated in the order, unless the employer refers a dispute concerning the compliance order to the CCMA within that period.

A dispute referred to the CCMA by the employer in terms of subsection (5) must be dealt with in terms of section 73.

70. Limitations
A labour inspector may not issue a compliance order in respect of any amount payable to an employee as a result of a failure to comply with a provision of this Act or the National Minimum Wage Act, 2018, if-

[deleted]

the employee earns in excess of the threshold prescribed by the Minister in terms of section 6 (3);

any proceedings have been instituted for the recovery of that amount in the CCMA or a court, unless those proceedings have been withdrawn; or

that amount has been payable by the employer to the employee for longer than 36 months before the date on which a complaint was made to a labour inspector by or on behalf of the employee or, if no complaint was made, the date on which a labour inspector first endeavoured to secure a written undertaking by the employer in terms of section 68 or issued a compliance order in terms of section 69.

71. Objections to compliance order [repealed]

72. Appeals from order of Director-General [repealed]

73. Order may be made an arbitration award

The Director-General may apply to the CCMA for a compliance order to be made an arbitration award if the employer has not complied with the order.

The CCMA may issue an arbitration ward in terms of subsection (1) requiring the employer to comply with the compliance order, if it is satisfied that -

the compliance order was served on the employer; and

the employer has not referred a dispute in terms of section 69(5).

73A. Claims for failure to pay any amount

Despite section 77, any employee or worker as defined in section 1 of the National Minimum Wage Act,2018, may refer a dispute to the CCMA concerning the failure to pay any amount owing to that employee or worker in terms of this Act, the National Minimum Wage Act,2018, a contract of employment, a sectoral determination or a collective agreement.

Subsection (1) does not apply to employees or workers earning in excess of the threshold prescribed by the Minister in terms of section 6(3).

An employee or worker, other than the employee or worker referred to in subsection (1), may institute a claim concerning the failure to pay any amount contemplated in subsection (1) in either the Labour Court, the High Court or, subject to their jurisdiction, the Magistrates' Court or the small claims court.

The CCMA must appoint a Commissioner in terms of section 135 of the Labour Relations Act, to attempt to resolve by conciliation any dispute that is referred to the CCMA in terms of subsection (1)

The CCMA must commence the arbitration of a dispute contemplated in subsection (1) immediately after certifying that the dispute remains unresolved in terms of section 135(5).

Part B
Legal proceedings (ss 74-77A)

74. Consolidation of proceedings

A dispute concerning a contravention of this Act or the National Minimum Wage Act, 2018, may be instituted jointly with proceedings instituted by an employee under Part C of this Chapter.

If an employee institutes proceedings for unfair dismissal, the Labour Court or the arbitrator hearing the matter may also determine any claim for an amount that is owing to that employee in terms of this Act or the National Minimum Wage Act, 2018.

2A. No compliance order may be issued or enforced and no other legal proceedings may be instituted or enforced in respect of any claim that has been determined in terms of this subsection (2).

A dispute concerning any amount that is owing to an employee as a result of a contravention of this Act or the National Minimum Wage Act, 2018 may be initiated jointly with a dispute instituted by that employee over the entitlement to severance pay in terms of section 41 (6).

75. Payment of interest
An employer must pay interest on any amount due and payable in terms of this Act or the National Minimum Wage Act, 2018 at the rate of interest prescribed in terms of section 1 of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975), to any person to whom a payment should have been made.

76. Proof of compliance
In any proceedings concerning a contravention of this Act, the National Minimum Wage Act, 2018, or any sectoral determination, it is for an employer-

to prove that a record maintained by or for that employer is valid and accurate; or

who has failed to keep any record required by this Act or the National Minimum Wage Act, 2018, that is relevant to those proceedings, to prove compliance with any provision of this Act.

76A. Fine for not complying with national minimum wage

Subject to section 76, a fine that may be imposed on an employer who paid an employee less than the national minimum wage, is an amount that is the greater of -

twice the value of the underpayment; or

twice the employee's monthly wage.

For second or further non compliances, a fine that may be imposed on the employer is an amount that is greater of -

thrice the value of the underpayment; or

thrice the employee's monthly wage.

The Minister may issue guidelines on the determination of whether a non-compliance is a second or further non-compliance, as envisaged in subsection (2).

The Department must maintain and publish on its official website, on a quarterly basis, a list of all employers who were issued with compliance orders.

77. Jurisdiction of Labour Court

Subject to the Constitution and the jurisdiction of the Labour Appeal Court, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters in terms of this Act.

1A. The Labour Court has exclusive jurisdiction to grant civil relief arising from a breach of sections 33A, 43, 44, 46, 48, 90 and 92.

The Labour Court may review the performance or purported performance of any function provided for in this Act or any act or omission of any person in terms of this Act on any grounds that are permissible in law.

The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.

Subsection (1) does not prevent any person relying upon a provision of this Act to establish that a basic condition of employment constitutes a term of a contract of employment in any proceedings in a civil court or an arbitration held in terms of an agreement.

If proceedings concerning any matter contemplated in terms of subsection (1) are instituted in a court that does not have jurisdiction in respect of that matter, that court may at any stage during proceedings refer that matter to the Labour Court.

77A. Powers of Labour Court
Subject to the provisions of this Act, the Labour Court may make any appropriate order, including an order-

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condoning the late filing of any document with, or the late referral of any dispute to, the Labour Court;

[deleted];

reviewing the performance or purported performance of any function provided for in terms of this Act or any act or omission by any person or body in terms of this Act, on any grounds permissible in law;

making a determination that it considers reasonable on any matter concerning a contract of employment in terms of section 77 (3), which determination may include an order for specific performance, an award of damages or an award of compensation;

imposing a fine in accordance with Schedule 2 to this Act or for any contravention of any provision of this Act for which a fine can be imposed; and

dealing with any matter necessary or incidental to performing its functions in terms of this Act.

Part C
Protection of employees against discrimination (ss 78-81)

78. Rights of employees

Every employee has the right to-

make a complaint to a trade union representative, a trade union official or a labour inspector concerning any alleged failure or refusal by an employer to comply with this Act or the National Minimum Wage Act, 2018;

discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person;

refuse to comply with an instruction that is contrary to this Act, the National Minimum Wage Act, 2018 or any sectoral determination;

refuse to agree to any term or condition of employment that is contrary to this Act, the National Minimum Wage Act, 2018 or any sectoral determination;

inspect any record kept in terms of this Act or the National Minimum Wage Act, 2018 that relates to the employment of that employee;

participate in proceedings in terms of this Act;

request a trade union representative or a labour inspector to inspect any record kept in terms of this Act and that relates to the employment of that employee.

Every trade union representative has the right, at the request of an employee, to inspect any record kept in terms of this Act or the National Minimum Wage Act, 2018, that relates to the employment of that employee.

79. Protection of rights

In this section, 'employee' includes a former employee or an applicant for employment.

No person may discriminate against an employee for exercising a right conferred by this Part and no person may do, or threaten to do, any of the following:

Require an employee not to exercise a right conferred by this Part;

prevent an employee from exercising a right conferred by this Part; or

prejudice an employee because of a past, present or anticipated-

failure or refusal to do anything that an employer may not lawfully permit or require an employee to do;

disclosure of information that the employee is lawfully entitled or required to give to another person; or

exercise of a right conferred by this Part.

No person may favour, or promise to favour, an employee in exchange for the employee not exercising a right conferred by this Part. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle the dispute.

80. Procedure for disputes

If there is a dispute about the interpretation or application of this Part, any party to the dispute may refer the dispute in writing to the CCMA.

The party who refers a dispute must satisfy the CCMA that a copy of the referral has been served on all the other parties to the dispute.

The CCMA must attempt to resolve a dispute through conciliation.

If a dispute remains unresolved, any party to the dispute may refer it to the CCMA for arbitration

In respect of a dispute in terms of this Part, the relevant provisions of Part C of Chapter VII of the Labour Relations Act, 1995, apply with the changes required by the context.

For the purposes of this section, a party to a dispute includes a labour inspector.

81. Burden of proof
In any proceeding in terms of this Part-

an employee who alleges that a right or protection conferred by this Part has been infringed, must prove the facts of the conduct said to constitute such infringement; and

the party who allegedly engaged in the conduct in question must then prove that the conduct did not infringe any provision of this Part.