Minimum wage act bungle leaves workers exposed to employers dodging new law
A numbering error in the National Minimum Wage Act has bungled a clause that protects workers from employers who intend to circumvent the new law.
The National Minimum Wage is the most significant labour-related piece of legislation of the democratic era and President Cyril Ramaphosa’s biggest achievement that is set to benefit more than six million workers.
According to the law, which kicks in on January 1 , employers are not allowed to pay eligible workers less than R20 an hour.
However, the May 1 2017 "retrospective" implementation of a section that states it is "unfair labour practice for an employer to unilaterally alter wages, hours of work or other conditions of employment in connection with the implementation of the national minimum wage", ended up being cross-referenced to the wrong clause in the act.
This means workers whose benefits or working conditions have been changed unilaterally in reaction to the new minimum wage law will have to wait until parliament fixes the error before they can take action against employers.
Sharome van Schalkwyk, who was the acting chairperson of the labour committee in parliament when the bill was processed, attributed the mistake to "human error".
She said the same had happened with other bills in parliament in the past and it was "not a major train smash".
However, she conceded that the consequence of the error was "unfortunate".
Cosatu parliamentary co-ordinator Matthew Parks told Business Day that the blunder was a "massive crisis" that could put many workers at risk.
"This protection was to be backdated to 1 May 2017, a year before the anticipated start of the national minimum wage.
"Because of sloppy legal drafting and editing by the department of labour and parliament’s legal drafters, this retrospective protection was accidentally omitted in the act signed by the president into law.
"It thus leaves workers exposed and vulnerable to employers who may have reduced their wages and benefits in the run-up to the national minimum wage," he said.
Parliament’s labour committee and the department of labour have said they were aware of the error and committed to fixing it in the new year when MPs returned from recess.
Van Schalkwyk told Business Day on Thursday that parliament would introduce a committee amendment bill to link the retrospective date to the right clause in the act, ensuring that workers who were prejudiced against from May 1 2017 could approach the Commission for Conciliation, Mediation and Arbitration for recourse.
The department of labour’s chief director: labour market policy and industrial relations, Thembinkosi Mkalipi, said the error came about because of changes made in parliament, where three more clauses were added to the bill after it had been considered.
However, he said the department was equally to blame.
"The mistake was made by all of us, the department, members of parliament and the state lawyers. Unfortunately, we missed that part," he said.
He said that there were no ill intentions and that the weight of the error would only become an issue if it remained uncorrected.
"The damage is just a delay," said Mkalipi.
This is not the first time a labour department-sponsored bill has had to be corrected after it was enacted, with the Unemployment Insurance Fund Amendment Act in 2016 as
These errors were corrected only through a private member’s act, which only comes into effect on January 1 2019.