National Minimum Wage Act, 2018 (Act No. 9 of 2018)RegulationsRegulations to the National Minimum Wage, 20182. Application for exemption from paying national minimum wage |
| (1) | An employer may apply to the delegated authority for an exemption, and a registered employers’ organisation may assist individual members to apply to the delegated authority for an exemption from paying the national minimum wage in terms of section 15 of the Act read with this regulation. |
| (2) | The application must be lodged on the National Minimum Wage Exemption System in the form required by that System. |
| (3) | An exemption may only be granted if the delegated authority is satisfied that— |
| (a) | the employer cannot afford to pay the minimum wage; and |
| (b) | every representative trade union representing one or more of the affected workers has been meaningfully consulted or, if there is no such trade union, the affected workers have been meaningfully consulted. |
| (4) | The determination of whether an employer can afford to pay the minimum wage must be in accordance with the decision process in Schedule 1. |
| (5) | In consulting with the representative trade union or the affected workers contemplated in subregulation (3), the employer must provide the bargaining council, union or, if there is no such union, the affected workers with a copy of the application to be lodged in terms of subregulation (2) downloaded from the National Minimum Wage Exemption System for that purpose. |
| (6) | The delegated authority may grant an exemption from paying the national minimum wage— |
| (a) | only from the date of the application for the exemption and specifying the period for which it is granted, which may not be more than 12 months, unless the application is selected for audit in which case it will be the date of the decision which will not be more than 30 days from the date of application; |
| (b) | specifying the wage that the employer is required to pay workers, which may not be less than the thresholds referred to in subregulation (7); and |
| (c) | on any condition that advances the purposes of the Act. |
| (7) | The wage thresholds below which no exemption may be granted are: |
| (a) | Ninety percent (90%) of the national minimum wage in respect of workers other than those referred to in paragraphs (b) and (c); |
| (b) | Ninety percent (90%) of the national minimum wage in respect of farm workers; |
| (c) | Ninety percent (90%) of the national minimum wage in respect of domestic workers. |
| (8) | Any exemption granted in terms of this regulation must be by notice published on the National Minimum Wage Exemption System. |
| (9) | Any refusal of an exemption must be by notice published on the National Minimum Wage Exemption System together with reasons for the refusal. |
| (10) | An exemption will only be considered if the applicant confirmed compliance with applicable statutory payments, including but not limited to Unemployment Insurance Fund, Compensation Fund and any applicable Bargaining Council Agreement. |