One of the common criticisms of government in South Africa is that they pass well-intentioned legislation but lack the resources or will to enforce that legislation.
Not so the Minister of Employment and Law, Nomakhosazana Meth, who recently told the National Assembly that her department would be hiring an additional 20,000 inspectors to ensure compliance with labour legislation. Given that Minister Meth has stated there are currently 2,000 inspectors operating in the country, the intention to add 20,000 new inspectors represents a 900% increase in those tasked with ensuring employers comply with the law.
Given this development, it seems clear that employers should be reviewing their employment policies and practices to ensure they are adhering to applicable legislation and other statutory instruments.
They should also be prepared for an inevitable Department of Employment and Labour (DOEL) inspection and in this piece, we unpack the various types of inspections, the documentation that is likely to be requested and what to look out for during the inspection process.
What Can Employers Be Required to Produce?
| Basic Conditions of Employment Act 1997 (BCEA) inspection | A summary of the BCEA displayed at the workplaceAn attendance register (usually for the last few months)Signed employment contracts / letters of appointmentInformation about remuneration – particularly payslips – to analysis overtime paid, leave pay etc |
| Unemployment Insurance Act 2001 and Unemployment Insurance Contributions Act 2002 inspection | The employer’s UIF reference numberList of all employees with ID / passport numbersPayroll recordsProof of payment of UIFUIF declarations of employees |
| Compensation for Occupational Injuries and Diseases Act 1993 (COIDA) and Occupational Health & Safety Act 1993 (OHS) inspection | Compensation Fund registration numberList of all employees, with a copy of their IDs / passportsProof of payment of Return of EarningsProof of appointment of health and safety representativesEvidence of recent risk assessments |
| Employment Equity Act 1998 (EEA) inspection | Evidence of consultation with employees (such as Employment Equity Forum minutes of meetings and attendance registers)Proof of analysis of employment practices (EEA12)Valid and signed employment equity plan (EEA13)Proof of submission of employment equity reports (EEA2 and EEA4) |
What Should Employers Lookout for?
- The above list is not exhaustive; many other documents can be demanded, such as electrical compliance certificates, fire training certificates, first aid certificates etc.
- Be careful of impostors – inspectors are required to show their certificate of appointment and we have had clients approached by unauthorised persons looking for bribes.
- Companies employing undocumented foreigners have attracted significant media attention in 2024 and there is little doubt that the DOEL is paying attention to this issue – employers must ensure foreign employees have valid (and legitimate) work permits.
- We have experienced many inspectors carrying out COIDA inspections and demanding the employer’s Annual Financial Statements (“AFS”). Any employer’s obligation to pay COIDA premiums is based on its total payroll and AFS contain highly confidential information. In our view, an employer can refuse to hand over their AFS.
- Many employers we work with do not require their employees to sign time and attendance registers and consider the practice draconian. In our experience, inspectors are adamant that they must be produced and where possible, the employer needs to forensically create them.
- Inspectors will not generally seek to impose a penalty for alleged contraventions of the legislation without giving the employer an opportunity to become compliant. Depending on the type of inspection, if contraventions are flagged, the employer may be asked to sign a written undertaking to comply and / or may receive a compliance order. Only if these requirements are ignored are penalties likely.
- Whilst we have set out different types of inspections above, inspectors have broad powers and could conduct an inspection of all legislation at once.
- It is a criminal offence to obstruct a DOEL inspector and we encourage owners and managers to cooperate as much as possible.
Inspections must be taken seriously and employers should obtain advice before the appointment and before producing the requested information. Whilst inspectors have broad powers, there are limitations to what can be demanded and frequently inspectors make requests for information that they have no legal entitlement to make.
Minister Meth has also suggested that the 20,000 new inspectors will be “interns’ so we foresee future inspections whereby the inspector does not have the experience to understand the limits of their powers.
If your business needs an assessment of its compliance with labour legislation or has received notification of an upcoming inspection, contact us for assistance.