FUNCTIONS OF THE INSPECTIONS & ENFORCEMENT SERVICES BRANCH GUGULETU ADVOCACY SESSION 1
DOL OFFICES IN THE WESTERN CAPE • The WC Department of Labour has 12 Labour Centres located at major business areas viz. 1. Bellville 2. Beaufort West 3. Cape Town 4. George 5. Knysna 6. Mitchel’s Plain 7. Mossel Bay 8. Oudtshoorn 9. Paarl 10. Somerset West 11. Vredenburg 12. Worcester • The Provincial Office is located at 9 Long Street, Cape Town 2
WHO ARE WE? INSPECTIONS & ENFORCEMENT SERVICES ACTINGCHIEF DIRECTOR PROVINCE OPERATIONS ( MR M. NTAMO) PROVINCIAL CHIEF INSPECTOR (MR D. ESAU) EMPLOYER AUDIT SPECIALIST (VACANT) OHS SPECIALIST ( MS F. NGALO EMPLOYMENT STANDARDS (MS Z. NTSHOZA STATUTORY SERVICES (MR J. JACOBS) EE PRINCIPAL INSPECTOR 2 X BCEA PRINCIPAL INSPECTORS Chief Directorate Communication | 2011. 00 3
OBJECTIVES OF THE IES BRANCH • To promote good labour practices including sound labour relations, improved conditions at work and minimum wages, fair labour practices and a healthy and safe working environment. We are enforcing the law to achieve these objectives. • To provide information on our labour laws: The Department is the initiator and guardian of our labour laws. It has the responsibility to inform clients about the laws and where appropriate to educate them. However, the Department does not act as a legal advisor. • To ensure compliance with our labour laws: We will be both reactive (i. e. when dealing with complaints and accidents) and pro-active (identifying areas of non-compliance and advise on corrective action) to ensure that our laws are complied with. 4
BASIC CONDITIONS OF EMPLOYMENT – JURISDICTION All employers and employees fall under the jurisdiction of the BCEA as far as conditions of employment are concerned § depending on the sector they are in, they will fall under one of the following: Øsectoral determination (min wages) eg. domestic workers, security guards etc or a Øbargaining council (min wages) eg, motor industry, iron and steel industry, building industry § those employers not falling under a sectoral determination or a bargaining council will fall under the BCEA (no minimum wages) – Department of Labour ØThe Department of Labour is responsible for the BCEA and Sectoral Determinations; and ØThe Bargaining Councils are responsible for those employers falling under their jurisdiction 5
CHAPTER TEN OF THE BCEA Appointment of Labour Inspectors as per s 63 of the BCEA Subsequent to the appointment of the labour inspector, the Minister must provide each labour inspector with a signed certificate (inspector’s card) in the prescribed form stating: a) that the person is a labour inspector b) which legislation that the inspector may monitor and enforce; and c) which of the functions of the labour inspector may perform. 6
MONITORING & ENFORCEMENT FUNCTIONS OF LABOUR INSPECTORS POWERS OF ENTRY • A labour inspector may, without warrant or notice, at any reasonable time enter • any workplace or nay other place where an employer carries on business that is not a home • any premises used for skills development ito SDA, 1998; or • 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 • • Advise employees and employers of their rights and obligations ito employment law conduct inspections investigate complaints made to a labour inspector endeavor to secure compliance with an employment law by securing undertaking or issuing compliance orders; and performing any other prescribed function 7
MONITORING & ENFORCEMENT CONTINUES. . POWERS TO QUESTION & INSPECT A labour inspector may • require a person to disclose information, either orally or in writing • inspect and question any person about any work performed A labour inspector maybe accompanied by an interpreter and any other person reasonably required to assist CO-OPERATION WITH LABOUR INSPECTORS • • Any person who is questioned by a labour inspector must answer all relevant questions lawfully Every employer and each employee must provide any facility and assistance required by the labour inspector to perform their functions effectively A labour inspector must • produce on request the certificate (inspector’s card) 8
MONITORING & ENFORCEMENT CONTINUES. . . SECURING AN UNDERTAKING ISSUING A COMPLIANCE ORDER • • A labour inspector who has reasonable grounds to believe that an employer has not complied with any provision of the Act may endeavour to secure a written undertaking • In endeavouring to secure the undertaking, the labour inspectorü may seek to obtain agreement • If an employer fails to comply with the written undertaking given by the employer; the Director-General may apply to the Labour Court for an order directing the employer to comply A labour inspector who has reasonable grounds to believe that an employer has not complied with a provision of the Act may issue a compliance order • A compliance order may also set out the dateü by which the employer should serve any representation it may wish to make to DOL and the Labour Court • The employer must display a copy of the compliance order at prominent places at each workplace • An employer must comply with the compliance order within the time period stated in the order 9
TYPES OF INSPECTIONS RE-ACTIVE INSPECTIONS PRO-ACTIVE INSPECTIONS • • This is an inspection initiated as part of a nationally coordinated plan to ensure that we monitor compliance, particularly at workplaces that have a high risk factor. • The national inspection plan makes provision for two kinds of pro-active inspections: ü Those that are part of blitz activities; and ü Those that are planned by the team leader as part of a labour centre’s role in meeting targets set in the national inspection plan. • Follow-up inspections may also be required arising out of a pro-active inspection • This inspection, or investigation, is executed in response to a complaint, or incident, that is lodged with, or reported, to the Department telephonically, by post or through the channel of Client Services section. Where appropriate, an inspector conducts an investigation he should not only restrict himself to the compliant or incident but also do a full inspection as per the IES 6 checklist. Depending on the outcome of the first inspection, a follow up inspection may be required. This could include establishing whether a Written Undertaking has been complied with. 10
SECTORAL DETERMINATIONS • Sectoral Determinations with minimum wages in South Africa Ø Ø Ø Contract Cleaning Sector Learnerships: All sectors[SETA’S] Private Security Sector[new] Domestic Worker Sector Wholesale and Retail Sector Children in the Performance of Advertising, Artistic & Cultural Activities Ø Taxi Sector Ø Forestry Sector Ø Farm Workers Sector[new] 11
MINIMUM WAGES SD NUMBER TRADE OR INDUSTRY AMOUNT OF WORKERS IN SECTOR WAGE PER HOUR 1 Contract Cleaning Sector 120 000 R 18. 01 p/h 6 Private Security 411 109 R 3482 -R 4571 p/m 7 Domestic Workers 913 000 R 11. 44 p/h 9 Wholesale & Retail 945 000 R 18. 77 p/h 11 Taxi 117 708 R 14. 54 p/h 13 Farm Workers 610 000 R 14. 25 p/h 14 Hospitality 610 000 R 14. 15 p/h 12
EMPLOYMENT EQUITY ACT Framework Ø Eliminate discrimination; § Section 5: places duty on employer to achieve equal opportunity by eliminating discrimination; and § Beneficiaries: persons from and who experienced both past and present disadvantages Ø Promote equity in the workplace: § Positive measures to deal with disadvantages of the past and present § Section 6(1): listed grounds constitute unfair discrimination Core of the Act Ø Affirmative Action § A system or measures designed to ensure that suitably qualified people from the designated groups have equal employment opportunities and are equitably represented in all occupational levels in a workplace 13
DEFINING ROLES ROLE CLARIFICATION The Accounting Officer (CEO) The HRM MANDATE To act as a representative body for the (employer) in consultation with employees (NEF) on all employment equity matters. To act as a catalyst and process management in the implementation, internally. - The EE Consultative Forum To represent all employees on employment equity matters whilst being consulted by the employer (EXCO); FUNCTION/ROLE To consult and account as an employer as per section 5 and 13, and the provisions of the EEA as a whole To facilitate and manage implementation processes of the employment equity plan, processes management and other related measures To be consulted as per sec. 13 (Sec. 16, 19, 20 & 21); 14
EMPLOYMENT EQUITY ACT A labour inspector may conduct an inspection and request the following documents from a designated employer to check level of compliance: a) proof of consultation as required by s 16 read with s 17 b) proof of audit and analysis as required by s 19 c) proof of employment equity plan as required by s 20 d) proof of published report as required by s 22 e) proof of assigning of senior EE managers as required by s 24 f) proof of informing employees as required by s 25 i. designated employer must display on prominent places that are accessible to all employees - summary of the EE Act - the latest EEA 2 report submitted to the Director-General - any compliance order served; and - any other document concerning this Act f) proof of records as required by s 26 Furthermore during the inspection, proof of an employment equity plan must be made available as required by s 20 15
Chief Directorate Communication | 2013. 00 Thank You… 16
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