Estimated reading time: 4 minutes
- South African labour law is extensive and non-compliance can have a serious financial impact to the employer.
- There are three types of labour inspections, each focussing on compliance with a different set of legislation.
- The Basic Conditions of Employment Act focusses on employment contracts and remuneration information.
- The Employment Equity Act aims to eliminate unfair discrimination in the workplace and promote equal opportunity and fair treatment.
- Occupational Health and Safety Act focusses on compliance with health and safety regulations to ensure a safe and healthy workplace.
Scenario: An inspector from the Department of Employment and Labour just showed up unannounced at the farm to conduct an inspection. Do you check his or her identification (and how)? Can you deny them access to your property or request that they schedule an appointment? What do they check? What happens if you ‘fail’ the inspection?
South African labour legislation is extensive and non-negotiable. Many employers do business honestly believing they comply with labour law, when in fact they do not. Non-compliance can have a serious financial impact, putting your farming enterprise at unnecessary risk. The Department of Employment and Labour has the authority to enforce labour law and to conduct regular inspections of the workplace to ensure compliance.
There are three types of labour inspections, each focussing on compliance with a different set of legislation, including the:
- Basic Conditions of Employment Act, 1997 (Act 75 of 1997) (including sectoral determinations and main collective agreements).
- Employment Equity Act, 1998 (Act 55 of 1998).
- Occupational Health and Safety Act ,1993 (Act 85 of 1993).
Employers should take note to differentiate between these types of inspections to ensure compliance as a whole. The three types of labour inspections address the following:
Basic Conditions of Employment Act
This inspection focusses on compliance with the minimum terms and conditions of employment the employer and employee may agree on, including industry specific legislation such as Sectoral Determination 13, which regulates labour law in the agricultural sector.
The inspector will look at the following:
- Employment contracts (written particulars of employment).
- The attendance register.
- Information regarding remuneration – payslips/envelopes, minimum wage, overtime, paid leave, working hours, etc.
- Unemployment Insurance Fund (UIF) and Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993) (COIDA) registration and proof of payments made.
- List of all employees’ names and ID numbers.
In the case of non-compliance, the inspector will issue the employer with a compliance order (dated), after which a monetary penalty or imprisonment may be imposed.
Employment Equity Act
This inspection focusses on compliance with the Employment Equity Act, which aims to eliminate unfair discrimination in the workplace and promote equal opportunity and fair treatment. ‘Designated employers’ are employers who meet certain criteria, and they have additional obligations. Employers must check whether they are classified as designated employers in order to ensure compliance.
In the case of non-compliance, a designated employer can be fined for the first offence up to R1,5 million or 10% of the employer’s annual turnover (whichever is the greatest) and/or ten years imprisonment.
Occupational Health and Safety
This inspection focusses on compliance with health and safety regulations to ensure a safe and healthy workplace. The inspector will look at the legislative poster, health and safety representative and committee, applicable signage, personal protective equipment, etc.
In the case of non-compliance, the inspector will issue the employer with a compliance order (dated) and/or temporarily shut down business activities, depending on the severity of non-compliance. Continuous non-compliance may result in penalties, imprisonment and possible criminal prosecution.
Many producers are concerned about security because of people falsely posing as inspectors from the Department of Employment and Labour in order to gain access to the premises. Be sure to insist on positive identification of the person who introduces him- or herself as an inspector and first verify the information before giving the person access to your premises.
Also remember that no inspector may charge a fee for the inspection, investigation, advice or any assistance. The Department of Employment and Labour does not delegate any third party to conduct an inspection on behalf of the department – none of the department’s powers may therefore be delegated. No inspector may sell posters, products or information. – Hannes Latsky, LWO Employers Organisation