Wage act already tangling up CCMA
Four weeks in, weak spots in minimum wage law are glaring
● The director of the Commission for Conciliation, Mediation and Arbitration, Cameron Morajane, says a lack of consultation with the CCMA has led to flawed minimum wage legislation, which will hinder its implementation.
“We have the experience,” he says.
“We could have given practical examples of what will or won’t work.”
But the CCMA was brought in too late. “We should have been brought in when it was being debated at Nedlac.
“We should have been asked for our view at the time of engagement. Not at the bill stage.”
The National Minimum Wage Act was implemented on January 1 and already the CCMA, which he says is understaffed and underfunded, is under pressure.
“We were expecting long queues, and we have seen them.”
Eight hundred and twenty-four minimum wage cases were brought to the CCMA between January 1 and January 28, when this interview was conducted — 824 employees stating they were not getting the minimum wage the government had promised them.
Morajane says this figure reflects only those who were paid on the 15th of the month and saw that their employers had not adjusted their pay to the R20 minimum hourly rate, which is now compulsory.
Once wage earners are joined by those who are retrenched because of the minimum wage — he says he expects job losses, and Cosatu has predicted a “jobs bloodbath” — it will become a “flood”, he says.
A lack of synchronisation between different entities charged with implementing the act will make it impossible to keep pace.
One glaring weakness in the legislation is that while it makes the CCMA responsible for resolving wage disputes between employers and employees, only the National Minimum Wage Commission, a separate body appointed last week, has the power to grant or refuse exemptions.
This will lead to confusion and delays, he says.
He predicts “a conflict” between the CCMA’s obligation to make a finding, and the exemption process.
“Which one is going to come first?”
Once a case is before it, the CCMA must make a determination based on the evidence, regardless of whether an exemption process is under way or not.
Implementation of the act would have been quicker, cheaper and more efficient if the CCMA had been given the power to decide on exemptions, rather than a separate body.
Morajane warned in a paper last year that a “fragmented approach” would create conflict and should be avoided.
“If we had a more synchronised process it could have been much easier. But the law is that we’re going to have it differently.
“We have to find an integrated, efficient system that does not create that kind of conflict.”
There will be delays.
“It’s happening already,” he says.
“We have employers coming to the CCMA to apply for exemption, and we have to tell them we don’t have jurisdiction. Meantime the employee is referring the case and we must make a determination.
“So you have different institutions making different decisions involving the same parties and the same issues.
“That is the complication that is already happening.”
He says the CCMA was not properly consulted or involved in the minimum wage legislation until it was too late. “We should at least have been heard.”
Not having minimum wage issues settled quickly will be a denial of the right to a minimum wage, which the legislation was intended to give effect to.
The second major flaw in the act is that it provides for employers to take on review to the labour court the determinations and awards made by the CCMA.
This will “really complicate the process”, he says.
The labour court already has a backlog of review applications and that will become “much worse” if minimum wage cases are taken on review.
“Our assumption is that, in the absence of an exemption, the employer can afford to pay R20 an hour. So we’re not going to entertain debate or an argument about affordability.”
What is reviewable and what is not will become an issue leading to further contestation and delay, he says.
The CCMA’s experience is that some employers use reviews “purely as a way of delaying”.
“I don’t agree with making a minimum wage award reviewable. It frustrates the purpose of having a minimum wage.
“The process is supposed to be simple and quick.”
And it could have been, had the CCMA been consulted, he says.
“We would have raised that issue clearly. We can’t have the minimum wage outcome, especially where an award is made, being subjected to protracted review processes. How much are you going to spend, and how long is it going to take?
“It will totally frustrate the process of expeditious determination” and make “a mockery” of the employee’s right to a minimum wage. “The idea of the minimum wage legislation is to try and encourage economic development and try to achieve equity. If you’re going to subject it to protracted processes then you’re frustrating that purpose.” He believes this is what will happen.
“At the moment the picture looks like that.”
This and the issue of exemptions should have been dealt with at Nedlac, he says. The fact that they weren’t will lead to bottlenecks that will “hinder the implementation” of a minimum wage.
Adding insult to injury, he adds, is that “any of the complications that arise out of this process” will be laid at the door of the CCMA, which wasn’t consulted.
By the time the CCMA made its submissions to parliament the act was “a done deal”.
Morajane, an attorney who was head of legal services at the National Education Health and Allied Workers Union before becoming a senior commissioner at the CCMA in 2012, says that “in the next round after the elections” he will tell his board, “here are the problems we are going to have”.
“We need a synchronised system between the CCMA and department of labour around exemptions and the cases we do, and we must exempt minimum wage outcomes and awards from being subjected to protracted legal processes such as reviews.”
You have different institutions making different decisions involving the same parties and issues