Salary incentives is one of the mechanisms usually used by employers to reward their employees for their performance and productivity. Employees who perform well get incentives such as an increase, and those who perform dismally are often criticised, subjected to pay cuts or non-payment. This usually results in employee frustration.
Previously, employees used to approach the Department of Employment and Labour to refer a complaint against an employer where the employee is claiming that monies are owed by the employer. However, the CCMA's jurisdiction was extended by Section 73A of the Basic Condition of Employment Amendment Act (hereafter referred to as "the BCEA") to adjudicate claims concerning the failure to pay any amount owing by the employer to the employee.
Section 73A claims are not limited only to salaries but apply to statutory payments as well. These statutory amounts and amounts owing, include leave pay, bonus pay, notice pay, underpayment, unlawful deductions and payment for overtime, amongst others. Despite the various bargaining councils having jurisdiction to entertain certain labour matters, only the CCMA has jurisdiction to adjudicate claims in terms of Section 73A of the BCEA as provided on the CCMA LRA 7.11 Referral form.
Unlike unfair dismissals or unfair labour practice disputes, when dealing with Section 73A claims, the BCEA makes it peremptory that arbitration must commence immediately after conciliation. Therefore, no party can object to arbitration commencing immediately after conciliation in Respect of these kind of disputes.
When does it apply?
Section 73A is intended to apply to low-income earners. It introduced measures to enforce claims employees have against employers for monies owing in terms of the BCEA and NMWA, a collective agreement, sectoral determination, or contract of employment.
Who does it apply to?
The provisions are applicable only to employees earning less than the BCEA annual threshold, which currently stands at R 211 596.30. They are not applicable to employees earning more than the abovementioned threshold. Therefore, employees earning above the threshold may approach the Labour Court or any Civil Court with the requisite jurisdiction to institute a claim.
Employers are advised to ensure that they pay their employees all the amounts they are lawfully entitled to. Failure or refusal to do so, will result in the employees instituting claims at the CCMA for monies they are lawfully entitled to.
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