I had a telephone call last week from a client who was shocked rigid because an inspector from the Department of Labour walked into the client's premises, presented his credentials, and demanded to be handed various records for inspection. The records included attendance records, payroll records, annual leave records and so on.
The client, not been too certain of his rights, decided that discretion would be the better part of valour, and co-operated fully with the Inspector - and a jolly good thing too. The client then wanted to know from me under what authority a Department of labour inspector can demand such records for inspection. The answer is very simple - the authority is the Basic Conditions of Employment Act, chapter 10.
The Act gives authority to the Minister to appoint any person in the public service as a labour inspector, or to designate any person in the public service, or to designate any person who is an agent of a bargaining council, to perform the functions of a labour inspector.
The Minister provides each labour inspector with a signed certificate, stating that the person is a labour inspector, stating under which legislation that inspector is authorised to monitor and enforce the legislation, and stating which of the functions of a labour inspector that person may perform.
It is therefore essential, when a labour inspector comes knocking on your door, to ask for his credentials, and to scrutinise the credentials properly so that you know exactly what powers this inspector does have.
The labour inspector generally has the authority to advise employees and employers of their rights, he can conduct inspections of your records that you are obliged to keep in terms of the BCEA, he can investigate any complaints made to him by an employee, and enforce the employer to comply by securing an undertaking from the employer, or issue a compliance order. The labour inspector is also authorised to enter your premises without warrant or prior notice, at any reasonable time, for the purpose of monitoring and enforcing compliance the act.
If necessary, the inspector may obtain a written authorisation from the Labour Court, to force an employer to permit him to enter the premises. A labour inspector is also empowered to administer an oath, and to require that any information given to him be made under oath or affirmation. Thus, it is not a good idea to tell stories to a labour inspector.
The Inspector can question any person on your establishment, including your employees. He is also empowered to make a copy of any record or document on your premises in terms of the act, or to remove such documents in order to make copies or extracts. He can issue an order, compelling the employer to deliver any required to documents to a specified place within a specified time.
He can also remove any article substance or machinery present at the workplace.
It can be seen that a labour inspector has very wide powers - and employers would be very wise indeed not to try and dodge or circumvent any issues raised by a labour inspector - that is a short road to disaster.
More next week…
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Labour inspectors – Part 2.
Last week, we looked at some of the very wide powers bestowed upon a labour inspector by authority of the BCEA, and we continue with that this week.
If a labour inspector has reasonable grounds to believe that an employer has failed to comply with any provision of the BCEA, he must endeavour to secure a written undertaking from the employer to comply with that provision. This written undertaking may include agreement between employer and employee for any amount owed to the employee, and the inspector is also empowered to receive payment on behalf of the employee.
It would seem that to " secure an undertaking" is a soft approach, in an attempt to secure cooperation rather than issue a compliance order. Employers should take note also that the employee is entitled to claim interest on any amount owing to him. A compliance order amounts to " cracking the wip." If an employer does not wish to cooperate, more harsh measures are taken.
The compliance order must set out all the details required in section 69 of the BCEA. A glance at this section will convince you that a compliance order " means business." Fines for failure to comply can go as high as R500 per employee.
An employer is entitled to lodge an objection to a compliance order, by making written representation to the Director-General within 21 days of receipt of the order. A compliance order may also be made an order of the Labour Court. The Director-General can make such application in cases where the employer has failed to comply with the order, and has failed to launch an objection against the order.
A labour inspector may not issue a compliance order in respect of any amount owing to an employee, if that employee earns over the threshold amount of R115572-00 per year. Such employees would need to seek relief through the civil courts, or the amount owing can be linked to a dispute of unfair dismissal. It is important that we also look at some other issues, such as temporary employment services or labour brokers, and that we also, as far as possible, define the word " employee."
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