THE OPERATIVE WORD IS “OWING”

Twenty-five applicants, all of whom were employed as sales consultants, received a basic monthly salary of R5000,00 plus commission. The applicants referred a section 73A dispute to the CCMA arguing that they were underpaid during specific periods, and that this underpayment contravened the National Minimum Wage Act and the sectoral determination of the wholesale and retail sector. The application was dismissed. The commissioner determined that the applicants’ claim was not solely for failure to pay owed amounts in terms of the national minimum wage, but rather a dispute of interest disguised as a claim for owed amounts.

United Chemical Industries Mining Electrical State Health and Aligned Workers Unions obo Ntuli and others / Fair Discounters (Pty) Ltd (2024) 33 CCMA 6.7.2

Case summary

Twenty-five applicants, all of whom were sales consultants receiving a basic monthly salary of R5000,00 plus commission, referred a dispute to the CCMA regarding an alleged failure to pay owed amounts as outlined in section 73A of the Basic Conditions of Employment Act 75 of 1997 (the “BCEA”), as amended. The applicants asserted that they were underpaid during specific periods in 2022 and 2023, contending that this underpayment contravened the National Minimum Wage Act 9 of 2018 (the “NMWA”) and the sectoral determination for the retail industry. They specifically claimed that they were not adequately remunerated when their commission earnings failed to meet the minimum wage set by the sectoral determination.

Conversely, the respondent argued that the basic wage of its 300 sales consultants exceeded the national minimum wage, and that the sectoral determination allowed for payment through commission. According to the gazetted sectoral determination of the wholesale and retail sector, employers and salespeople may agree in writing that commission work will be performed on a regular basis.

The applicants argued that the national minimum wage includes sector-specific schedules, whereas the respondent maintained that the national minimum wage is R25,42 per hour and no worker should earn less than that. The commissioner agreed with the respondent, stating that the national minimum wage is indeed R25,42 per hour as outlined in section 4(4) of the NMWA. The commissioner considered the applicants’ argument regarding the inclusion of sectoral schedules in the national minimum wage to be unfounded.

It was noted that the sectoral agreement permitted commission-based payment if agreed upon by the employee and if commission work was performed regularly. Additionally, if commission earnings did not meet the national minimum wage during certain periods, the employer was required to ensure compliance with the minimum wage. The commissioner cited the case of Atlas Finance (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others (2022) 43 ILJ 1655 (LC) (15 March 2022), affirming that commission work contributes to meeting minimum remuneration requirements, provided the terms are agreed upon in writing.

Regarding the applicants’ argument that commission work had been abolished, the commissioner ruled that they failed to provide sufficient evidence or authority to support this claim. The commissioner determined that the applicants’ claim was not solely for failure to pay owed amounts in terms of the national minimum wage, but rather a dispute of interest disguised as a claim for owed amounts. One should claim what s/he is entitled to, not what s/he is interested to get or wishes to get. The commissioner stated that the operative word is “owing”.

Consequently, the application was dismissed.

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