Many employers across South Africa get the “dreaded” inspection from the Department of Labour every year. For some employers, these inspections create a state of panic, seeing as these employers do not know what to expect. In this article, we will address the basic aspects that they will inspect.
Labour Inspectors of the Department of Labour (DOL) visit workplaces from time to time to check the level of compliance in the workplace in accordance with labour legislation. The Department of Labour has the authority to enforce labour law and to conduct regular inspections of the workplace to ensure compliance.
These visits normally last a few hours, depending on the business size. South African labour legislation is extensive and non-negotiable. Many employers conduct business honestly, believing they comply with labour law, which in fact they do not.
Non-compliance can have a severe financial impact on a business, exposing the business to unnecessary risk.
Labour Inspectors are appointed in terms of the Basic Condition of Employment Act (BCEA) to monitor and enforce the following legislation:
- Basic Conditions of Employment Act 75 of 1997;
- Compensation for Occupational Injury and Diseases Act 130 of 1993;
- Occupational Health and Safety Act 85 of 1993;
- Employment Equity Act 55 van 1998;
- Unemployment Insurance Act 30 of 1996.
Employers who fail to comply with legislation constitute a criminal offence. Employers would like to comply with all provisions set out in the labour legislation but are not always sure on which areas to focus.
The right of a Labour Inspector from the Department of Labour to enter a workplace to conduct these inspections is set out in the Basic Conditions of Employment Act 75 of 1997 and states as follows:
“Section 65 – Powers of entry
(1) To monitor and enforce compliance with employment law, a labour inspector may, without warrant or notice, at any reasonable time, enter—
(a) any workplace or any other place where an employer carries on business or keeps employment records that is not a home;”
From the above, it is clear that an Inspector may enter any workplace, even without notice. The Inspectors from the Department of Labour normally give written notice of the Inspection, and as such, the employer will be able to prepare for the inspection.
Herewith are the basic aspects that the Inspector will inspect, with a short description of each (Please note that these are only the basic aspects, and the inspection will not be limited to only these):
Employment contracts
Each employee must have a contract of employment. The Inspector will normally request a copy of a signed contract of employment. It is advisable to have the copy ready with the inspection.
Registration with the Compensation Fund and proof of payments made
Employers must be registered with the Compensation Fund and will be provided with a registration number. The Inspector will require this number and proof of the last payment.
Registration with the Unemployment Fund and proof of payments made
Employers must be registered with the Unemployment Fund and will be provided with a registration number. The Inspector will require this number and proof of the last payment.
Copies of relevant posters; Basic Conditions of Employment Act; Occupational Health and Safety Act, and the Employment Equity Act.
These Acts/Posters must be visible in the workplace, and the employees must have access to the same. If you are a member of SEESA, these are available at your nearest SEESA Office at no additional charge.
Signed attendance registers
Employers must keep an attendance register for each employee. The Inspector will inspect these to establish the working hours of the employee and to see if overtime is worked.
Information about remuneration
This is the employee’s salary advice, which will be inspected to see if the employee is being paid the minimum wage and if the employee is paid in accordance with the hours and overtime worked as per the attendance register.
During an inspection, the inspector will normally interview a few employees in the employer’s absence to confirm certain aspects of the inspection with the employer.
If a company fails the above inspection, the company is non-compliant. The Labour Inspector will issue the employer a compliance order that can result in a monetary penalty.
However, employers do not need to panic. If employers are prepared and follow the basics, as set out herein, you should pass with flying colours.
About The Author:
Simoney Botes. Simoney obtained her LLB Degree in 2018 at University of the Free State. She also started her career at SEESA in 2018 as a Legal Advisor, assisting clients with Labour, Consumer and POPI related matters.
Resources:
- Basic Conditions of Employment Act 75 of 1997;
- Department of Labour notice of inspection.