Are the rights of commission based and commission only employees the same or similar to that of regular employees in terms of the National Minimum Wage Act?
Commission based and commission only employees are questioning whether or not they must at least be paid the minimum wage if their commission earnings are less than the set minimum wage.
Section 213 of the Labour Relations Act, 66 of 1995 as amended, defines an employee as –
a. any person, excluding an independent contractor, who works for another person or the State and who receives, or is entitled to receive, any remuneration; and
b. any other person who in any manner assists in carrying on or conducting the business of an employer.
Therefore, when applying the aforesaid definition, commission based and commission only employees are considered employees. They have the same rights and obligations as a salaried employee.
As of 2018 all commission-based employees are legally entitled to receive at least the minimum wage prescribed in terms of the National Minimum Wage Act of 2018 (the Act) and the commission payment in terms of their agreement with the employer. There are however employees who, despite the Act, receive an income based solely on commission exclusive of this minimum wage.
Section 3 of the Act provides that the laws relating to employee minimum wages apply to all employees and their employers. Members of the South African National Defence Force, the National Intelligence Agency and the South African Secret Service are however excluded, as are volunteers.
Accordingly, every employee is entitled to the payment of a wage in an amount no less than the national minimum wage which cannot be waived, and which takes precedence over any contrary provision in any contract of employment.
Workers are encouraged to challenge the legality of their agreements with their employers by contacting either the CCMA, or us for assistance. Nico Grobbelaar @ 0832602179 or nico@njgconsult.co.za.