What good would legislation be if compliance thereof is not monitored and enforced? In this article, I briefly explain what to expect when a Labour Inspector appointed by the Department of Labour (DOL) knocks on your door for this very purpose.
A Labour Inspector can enforce compliance of the following legislation:
The recently implemented National Minimum Wage Act (NMA);
Basic Conditions of Employment Act (BCEA);
Unemployment Insurance Act (UIA);
Unemployment Insurance Contributions Act (UICA);
The Compensation of Occupational Injuries and Diseases Act (COIDA);
Occupational Health and Safety Act (OHSA);
Employment Equity Act (EEA); and
WHO: First and foremost, in terms of section 63 of the BCEA, employers are entitled to ask the Labour Inspector for identification. Every Labour Inspector has a certificate that proves his / her appointment as a Labour Inspector, which legislation he / she may monitor and enforce and lastly, what functions he / she may perform. Employers are thus entitled to refuse a person access to the workplace who claims to be a Labour Inspector if he / she does not provide as proof the relevant identification. Clearly this rule exists to protect employers from granting access to imposters.
HOW: After providing the employer with the needed identification, Labour Inspectors are entitled to enter any workplace without warrant or notice, at any reasonable time, however, for those who employ domestic employees, Labour Inspectors may only enter a home with the owner’s consent or with a court order from the Labour Court.
WHAT: Labour Inspectors are entitled to advise employees and employers of their rights and obligations in terms of any employment Act. They may also conduct inspections, investigate complaints, secure compliance and lastly, perform any other prescribed function. In terms of section 66 of the BCEA, Labour Inspectors may do the following upon conducting an audit:
Collect information and evidence, whether orally or in writing;
Question employees and employers;
Take copies of any record or documents; and
Inspect, question and remove any article, substance or machinery.
The Labour Inspector must provide the employer with a receipt of anything he / she intends to remove from the workplace. Anything removed, must be returned within a reasonable time.
During such an audit, both the employer and employees, have an obligation in terms of the BCEA to co-operate with the Labour Inspector and provide him / her with anything needed during such an audit.
WHY: It is obvious and evident that the purpose of such detailed investigation during the audit process is to determine whether or not an employer complies fully with the relevant legislation.
THE ENFORCEMENT: The easiest way for any Labour Inspector to have an employer correcting any breach of the NMA, UIA, UICA or BCEA, is by obtaining the employer’s written undertaking which would set out the how and when such breach be corrected and as a result, full compliance is restored. Should an employer fail to comply with its own written undertaking, such undertaking can easily be made an arbitration award. The EEA, COIDA and OHSA, have made other provisions for the enforcement of these Acts, such as fines, imprisonment or in extreme cases, even the shutdown of operations.
As an alternative to a written undertaking, any Labour Inspector who has reasonable grounds to believe that an employer fails to comply with the NMA, UIA, UICA or BCEA, may refer a dispute to the CCMA or issue any employer with a compliance order. The compliance order must set out the following important information:
The name of the employer, and the location of every workplace to which it applies;
The provisions of the relevant Act which the employer allegedly failed to comply with;
Any amount that the employer is required to pay;
Any steps that the employer is required to take to secure compliance and in which time frame; and
Any fine payable.
Employers must comply with compliance orders unless an employer is challenging the compliance order by referring a dispute to the CCMA. A compliance order which an employer has failed to comply with and is not challenging, may be made an order of the Labour Court. In terms of the NWA, employers may be fined for non-compliance.
PREPARING FOR A DOL AUDIT: Usually Labour Inspectors prefer to notify the employer in writing of his / her planned visit to the workplace, of which such notification would set out what information and evidence he / she requires or what he / she intends investigating. This would give employers time to collect and have everything ready for the audit. The better employers cooperate, the easier the audit becomes. As long as employers show their willingness to fully cooperate and their eagerness to correct any possible breach, the audit would be a walk in the park.
If you require any assistance during a DOL audit, feel free to make contact with any LabourNet Representative.
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