Atlas Finance (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others (JR57/21) [2022] ZALCJHB 60; [2022] 7 BLLR 647 (LC); (2022) 43 ILJ 1655 (LC) (15 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: JR57/21

In the matter between:

ATLAS FINANCE (PTY) LTD

Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION (CCMA)

First Respondent

COMMISSIONER RP RAKALE N.O.

Second Respondent

WAR OBO MOTSHEGETSA & 9 OTHERS

Third Respondent

Heard: 8 February 2022

Delivered: 15 March 2022

Summary: Review Application – commissioner committed gross irregularity and material error of law – section 5 of the National Minimum Wage Act – calculation of wages – commission is not excluded – review upheld – no costs

JUDGMENT

DEANE, AJ

Introduction

[1] This is an unopposed application wherein the Applicant seeks to have the arbitration award (Award) of the Second Respondent (Commissioner) under case number NWRB1850-20, dated 23 November 2020 reviewed and replaced with an appropriate order in terms of sections 145 and 158(1)(g) of the Labour Relations Act[1] (LRA).

Material Background Facts

[2] The Third Respondents are employed with the Applicant as sales consultants based at its Rustenburg branch. The Third Respondents were all employed before the introduction and implementation of the National Minimum Wage Act[2] (NMWA).

[3] The nature of the business of the Applicant is that of microlending, with the Third

Respondents canvassing for and securing new businesses.

[4] During 2018, the Applicant unsuccessfully attempted to amend the employment conditions

of the Third Respondents. The aforementioned attempt by the Applicant was to align the remuneration structures of the Third Respondents,

which included the earning of commission. This was to be done in anticipation of the announcement of an effective date for the

commencement of the NMWA.

[5] Whilst other sales consultants employed by the Applicant agreed to an adjusted remuneration structure, the Third Respondents did not agree to the adjusted remuneration structure and subsequently declared a dispute in terms of section 64(4) of the LRA under case reference NWRB491-18[3].

[6] The Applicant subsequently abandoned its attempt to amend the remuneration structure of the Third Respondents. The Third Respondents thereafter withdrew their dispute lodged under case reference NWRB491-18 and continued to accept, as demanded, remuneration in terms of the originally agreed remuneration structure[4].

[7] According to this originally agreed upon remuneration structure, the Third Respondents’

basic remuneration varies between R750.00 and R2 000.00 and is determined based on the number of new clients recruited. Combined

with the basic remuneration, the Third Respondents earn commission for work performed during their working hours. The commission is calculated at 7.5% of the value of successful new business generated per month, as per the Third Respondents’ normal hours of work.

[8] The Third Respondents are required to work 40.5 hours per week.

[9] During the period from January 2019 to October 2020, after the NMWA became effective, the Third Respondents were paid remuneration as per Annexure CB4.

[10] A dispute was lodged at the Commission for Conciliation, Mediation and Arbitration (CCMA) in order to determine whether the Applicant was complying with the NMWA.

Grounds for Review

[11] There are various grounds of review. In summary, they are that the Commissioner:

11.1 In determining whether the Applicant complied with the NMWA, committed a material error of law by excluding commission

earned by the Third Respondents.

11.2 Misdirected himself to such an extent that the outcome of the arbitration amounts to a gross irregularity in that

his conclusion is not objectively correct and that a reasonable arbitrator would not have reached the same conclusion considering the evidence available at the hearing of the matter.

11.3 Unjustly imposed a fine in terms of section 76A of the Basic Conditions of Employment Act[5] (BCEA) where the Applicant did not wilfully fail to comply with the NMWA.

11.4 Exceeded his powers by ordering the Applicant to increase the agreed basic salaries of the Third Respondents.

11.5 Exceeded his powers by ordering the payment of amounts not claimed by the Third Respondents and that were not due to them.

Arbitration Proceedings Before the CCMA

The Third Respondents’ case

[12] At the arbitration proceedings before the Commissioner on 13 November 2020, the Third Respondents’

representative submitted that the commission earned by an employee cannot be considered for the purpose of determining whether such individual is paid less, equal to or more than the prescribed national minimum wage (NMW)[6].

[13] It was further submitted that the Third Respondents were paid a basic salary less than the NMW and that despite them earning a basic salary combined with commission for work done during normal working hours, such commission must, in terms of the definition of “wage” and as per sections 4(4) to 4(7) of the NMWA, be excluded for the purposes of the dispute before the Commissioner[7].

[14] The Third Respondents did not claim discrimination based on differential remuneration structures between them and the other sales consultants that accepted a different structure in 2018[8].

The Applicant’s case

[15] It was contended by the Applicant that the commission earned for work done during the normal working hours of an employee cannot be excluded for the purposes of determining whether an employee is paid less than, equal to or more than the NMW.

[16] The Applicant testified that the Third Respondents earned and were paid in excess of the prescribed

NMW[9].

[17] Section 5(1) of the NMWA does not list commission as an exclusion for the purposes of calculating an employee’s wage[10].

[18] Section 5(3) of the NMWA provides for the payment of an employee other than that which is based on the number of hours worked, provided that such employee is not paid less than the NMW[11].

[19] By virtue of its submissions at arbitration, the Third Respondents effectively introduced a mutual

interest dispute pertaining to an increase in remuneration under the guise of a dispute related to the NMWA.[12]

Arbitration Award

[20] On 16 November 2020, the Commissioner enquired per email as to the actual hours worked by the

Third Respondents on a weekly basis. It was submitted by the Applicant that the Third Respondents only worked 40.5 hours per week,

which was confirmed by the Representative of the Third Respondents[13].

[21] On 23 November 2020, the Commissioner held that the Applicant was in contravention of the NMWA. He further ordered that an amount of R1 006 619.84 (one million six thousand six hundred and nineteen rands and eighty-four cents) be paid to the Third Respondents as backpay and a fine.

Legal Principles

[22] The test that the Labour Court is required to apply in a review of an arbitrator’s award is, “is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[14]

[23] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[15] (Sidumo), the Constitutional Court very clearly held that the arbitrator’s conclusion must fall within a range of decisions that a reasonable decision-maker could make, and the reasonableness test is still aptly described in the pre-Sidumo case of Computicket v Marcus NO and Others[16], where it was held that “the question I have to decide is not whether that [the arbitrator’s] conclusion was wrong but whether ... it was unjustifiable and unreasonable”.

[24] As the Labour Appeal Court rightly pointed out in The National Commissioner of the South African Police Service v Myers and Others[17] “….whatever one’s personal view may be, the test as set out in Sidumo ... is whether or not the arbitrator’s decision that dismissal is an appropriate sanction is a decision that a reasonable decision-maker could reach”.

[25] In determining whether the result of an arbitrator’s award is unreasonable, the Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is nevertheless capable of justification for reasons other than those given by the arbitrator[18]. The result will, however, be unreasonable if it is entirely disconnected with the evidence, unsupported by any evidence and involves speculation by the arbitrator[19].

[26] An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently, when the result is reasonably supported by some evidence. Unreasonableness is, thus, the threshold for interference

with an arbitrator’s award on review. In Sidumo the court further considered the duty of commissioners to consider all the material facts and stated as follows[20]:

“It is plain … that CCMA arbitration proceedings should be conducted in a fair manner…Fairness in the conduct of the

proceedings requires a commissioner to apply his or her mind to the issues that are material to the determination of the dispute. One of the duties of a commissioner in conducting an arbitration is to determine the material facts and then to apply the provisions of the LRA to those facts in answering the question whether the dismissal was for a fair reason….

It follows therefore that where a commissioner fails to have regard to material facts, the arbitration proceedings cannot in principle be said to be fair because the commissioner fails to perform his or her mandate…This constitutes a gross irregularity in the conduct of the arbitration proceedings … And the ensuing award falls to be set aside not because the result is wrong but because the commissioner has committed a gross irregularity in the conduct of the arbitration proceedings.”

[27] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA[21] the Court rejected a piecemeal or fragmented approach to reviews, where each factor that the commissioner failed to consider is analysed individually and independently, for principally two reasons. The first is that it “assumes the form of an appeal”[22] and not a review, and the second is that it is mandatory for the reviewing Court to consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make. To evaluate every factor individually and independently, it observed, is to defeat the requirements in section 138 of the LRA in terms of which the arbitrator is required to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities, albeit expeditiously and fairly[23].

[28] This court, in the case of Woolworths (Pty) Ltd v CCMA and Others[24], in considering the test for review, stated the following:

“The question that arises from the above is whether the conclusion reached by the commissioner falls outside the range of reasonableness so as to attract interference with the award by the court... The question to ask in considering the reasonableness or otherwise of an award is to determine whether the conclusion of the commissioner is one which a reasonable decision-maker could not reach (see Sidumo and Another v Rustenburg Platinum Mines Limited and Others [2007] 12 BLLR 1097 (CC)).”

[29] In Fidelity Cash Management Service v CCMA and Others[25], Zondo JP applied the Sidumo test thus:

‘It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA commissioner, the Court feels that it would have arrived at a different decision or finding to that reached by the commissioner. When that happens, the Court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the court would interfere with every decision or arbitration award of the CCMA simply because it, that is the court, would have dealt with the matter differently’.

And that:

‘The test enunciated by the Constitutional Court in Sidumo for determining whether a decision or arbitration award of a CCMA commissioner is reasonable is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision-maker could not have made in the circumstances of the case. It will not be often that an arbitration award is found to be one which a reasonable decision-maker could not have made but I also do not think that it will be rare that an arbitration award of the CCMA is found to be one that a reasonable decision-maker could not, in all the circumstances, have reached’.

[30] The test that this Court must apply in deciding whether the arbitrator’s decision is reviewable is whether the conclusion reached by the arbitrator was so unreasonable that no other arbitrator could have come to the same conclusion.

[31] It is on this basis that I proceed with the merits of the application below.

Analysis

[32] Both the Applicant and Third Respondent’s’ versions are recorded in detail in the transcribed record and in the Award and it will therefore not be repeated in detail herein. Only those salient facts pertinent to this review application will be referred to.

[33] In this case, the Commissioner correctly identified the issue that was to be dealt with

and that was “I had to decide whether the Respondent was complying with the National Minimum Wage Act 2018 (NMWA), that is paying the correct amount as prescribed in terms of Schedule 1 Section 6(6)(2) National Minimum Wage Act of 2018 and if there are any monies owing as at the Jan 2019 to the 1st of November 2020……(sic)”[26].

[34] Regarding the first ground of review, the Applicant contends that the “second respondent incorrectly held that, as per the National Minimum Wage Act of 2018, commission earned by an employee does not qualify for inclusion in determining whether an employee is paid less than, equal to or more than the prescribed NMW[27].”

[35] In terms of section 5 of the NMWA:

‘ Calculation of wage

5. (1) Despite any contract or law to the contrary, the calculation of a wage for the purposes of this Act is the amount payable in money for ordinary hours of work excluding—

(a) any payment made to enable a worker to work including any transport, equipment, tool, food or accommodation allowance, unless specified

otherwise in a sectorial determination;

(b) any payment in kind including board or accommodation, unless specified otherwise in a sectoral determination;

(c) gratuities including bonuses, tips or gifts; and

(d) any other prescribed category of payment.

(2) Subject to section 9A of the Basic Conditions of Employment Act, a worker is entitled to receive the national minimum wage for the number of hours that the worker works on any day.

(3) Subject to subsection (2), if the worker is paid on a basis other than the number of hours worked, the worker may not be paid less than the national minimum wage for the ordinary hours of work.

(4) Any deduction made from the remuneration of a worker must be in accordance with section 34 of the Basic Conditions of Employment Act, provided that a deduction made in terms of section 34(1)(a) of the Basic Conditions of Employment Act does not exceed one quarter of a worker’s remuneration.’

[36] Currently there is no uniform stipulation of which earning components should be included in the calculation of national minimum wages.

[37] The BCEA defines remuneration as “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person, including the State”[28] and wages is a component of remuneration paid to an employee “in respect of ordinary hours of work, or if they are shorter, the hours an employee ordinarily works in a day or week”[29].

[38] The specification of “ordinary hours” is important because it excludes, for example, productivity or overtime pay. In South Africa, wages are calculated based on the ordinary hours of work, which ensures that workers receive premium payments for work beyond the ordinary hours[30]. Therefore, ordinary hours of work are calculated based on a 45-hour workweek; this comprises a 9-hour workday if an employee works 5 days a week, or an 8-hour workday if an employee works 6 days a week[31].

[39] Regarding productivity and performance pay, internationally there is no standard definition of the components of a NMW however if one has regards to international standards, productivity and performance pay are considered as supplemental forms of remuneration. They specifically include commission work, piecework[32], and tipped work. Commission work refers to any system under which an employee receives supplemental pay based on the value or volume of sales[33]. Commissions are based on the value or volume of sales.[34]

[40] It is true that many countries exclude commissions from the calculation of the national minimum wage in order to minimise abuse and confusion[35]. However, in certain sectors, such as the hospitality and retail sector, commissions are an important component of the pay structure.

Therefore, some countries allow for commissions but under strict terms. For instance, in the UK, if at the end of the reference period the total wage falls below the national minimum wage level the employer must top these up[36]. This is also the case in South Africa.

[41] The advantage of such an approach is that it allows workers to receive earnings above the NMW due to positive performance but provides safeguards to ensure that all workers receive at least the national minimum wage and are,

therefore, able to meet their basic needs[37]

[42] However, in the calculation of the NMW specific categories are excluded.[38]

[43] Indeed, looking at the definition of “wage” and “remuneration” in the hospitality, wholesale and retail sectors for example, in South Africa, commission work counts towards compliance with the minimum remuneration provided that the employer and employee agree to the terms in writing. In the hospitality sector, an employee who performs commission work must be paid “not less than the prescribed minimum wage for the period worked”[39].

[44] It is therefore clear firstly; that commission is not a discretionary payment not related to an employee’s hours of work but forms a part of the employee’s wages and secondly; that the intention was not to exclude commission from the NMW.

[45] What is clear is that commission workers (those paid entirely or partly on the basis of

sales made or deals completed) must still be paid at least the NMW. Workers do not have to be paid the minimum wage for each hour worked, but they must be paid the minimum wage, on average, for the time worked in a pay reference period.[40] Therefore, workers who are paid weekly will have a pay reference period of one week and workers who are paid monthly will have a pay reference period of one month. For the purposes of the minimum wage, a pay reference period cannot be longer than one calendar month.

[46] Employers receiving commission must receive, on average, at least the minimum wage for each hour worked in the pay reference period. Therefore, if the workers' commission over a pay reference period falls below the minimum wage based on the number of hours worked, the employer must make up the sum to at least the minimum wage.

[47] It is clear that section 5(3) of the NMWA allows for a worker’s wage to be determined on a basis other than the hours worked, provided that such wage is not less than the prescribed NMW. Indeed, the Third Respondents earned commission during their normal working hours which was paid with basic salaries ranging between R750.00 and R2 000.00. This is provided for and falls within the ambit of section 5(3) of the NMWA.

[48] Section 5(1) of the NMWA sets out the payments that are to be excluded from the calculation of “wage”. It is evident from the sub-sections (a) - (d) that it does not list the payment of commission earned for work done during normal working hours as an exclusion for the purposes of determining whether an employee earns less than, equal to or more than the prescribed NMW. If the legislature wanted to exclude commission for the purpose of determining whether an employee earns less than, equal to or more than the prescribed NMW, it could have done so expressly. There are furthermore not yet any prescribed categories of payment in terms of section 5(1)(d) listed in the Act wherefore same is not applicable in casu.

[49] In addition, the Applicant submits that commission earned by an employee for work during normal working hours of work is not a benefit that is paid in addition to normal remuneration, i.e., a bonus or payment in kind and therefore

commission here does not constitute a gratuity, tip or a gift. Whilst acknowledging the challenges as to what constitutes a benefit[41], this judgment does not call on me to elaborate or decide on the issue of what is or is not a benefit but to only decide if commission

herein should be included in the calculation of the NMW. Having looked at the facts of this case in totality it cannot be said that the commission earned during the normal course of working hours constitutes a gratuity, tip or a gift as contemplated by the NMWA or as a “benefit” in terms of the relevant case law.[42]

[50] In addition, having regards to what is included and excluded from “remuneration”, in terms of section 5(1)(c) of the NMWA, any cash payments made to an employee, except those that are listed as exclusions, would be included as “remuneration”. It is clear that gratuities (for example tips received from customers) and gifts from the employer as well as discretionary payments not related to an employee’s hours of work or performance of work does not form part of “remuneration”. The fact that the payment of commission for work done in the ordinary hours of work is not included indicates that payments like commission are not considered gratuities, tips or gifts. Therefore, section 5 of the NMWA cannot be interpreted to specifically exclude commission.

[51] In casu, it is clear that the Commissioner relied exclusively on the definition of “wage” as contained in the NMWA, in reaching a conclusion that the Applicant had not complied with the Act by paying such minimum wage to the employees. The Commissioner, in the calculation of whether or not the Applicant was in compliance with the NMWA,[43] failed to take into account arguments that the commission earned by employees must be added to their fixed monthly payments in order to arrive at the correct wage paid to them per month. It was the evidence of the Applicant that when the commission of the employees was added to their fixed monthly payments, it was in excess of the NMW, and therefore the Applicant was in compliance with the NMWA[44].

[52] The Commissioner, therefore, misdirected himself by failing to take into account the evidence

placed before him showing that the Third Respondents were paid in excess of the NMW. The Commissioner further misdirected himself by failing to consider that the Applicant acknowledged that employees whose basic salaries and commission payments are not sufficient to ensure compliance with the NMWA, will be, as required per section 5(3) of the NMWA, to be “topped up” to ensure

compliance[45].

[53] In so doing, the Commissioner failed to understand that section 5(3) of the NMWA does allow for a worker’s wage to be determined “on a basis other than the number of hours worked” provided that “the worker may not be paid less than the national minimum wage for the ordinary hours of work”.

[54] There were instances from the record that shows that some employees were not paid the NMW[46]. The explanation on the part of the Applicant for the failure to do so is that some of the Respondents were underpaid during the period of April, May and June of 2020, as a direct result of the period of lockdown imposed by the government in response to the COVD-19 pandemic[47]. The Third Respondents did not work during this period due to the lockdown. The Commissioner, therefore, misdirected himself by

presumably including in the calculation of the amounts underpaid, the months of April, May and June 2020.

[55] During arbitration, evidence was led on a number of occasions that where there were indeed underpayments it was corrected for the affected Third Respondents and which were subsequently included in payments for the period of July 2020.[48] This was however completely ignored by the Commissioner.

[56] Looking at the totality of the evidence before me it is clear that the Commissioner’s decision

to exclude commission earned by the Third Respondents in determining whether the Applicant indeed complied with the NMWA is not a decision that a reasonable arbitrator would come to when faced with the evidence. Indeed it also constitutes a material error of law and it, therefore, cannot be unreasonable to conclude that the Commissioner misdirected himself to such an extent that the outcome of the arbitration award amounts to a gross irregularity, which award must consequently be reviewed and set aside.

[57] Since the Commissioners findings in arriving at his conclusion is unreasonable and amounts to a gross irregularity the issue of the imposition of the fine becomes moot.

Conclusion

[58] The Commissioner misinterpreted sections 5(1) and 5(3) of the NMWA as a direct result of which his finding was not only unreasonable, but legally incorrect and falls to be reviewed and set aside.

[59] In the premise the following order is made:

Order

1. The Arbitration Award issued by the Second Respondent under case number NWRB1850/20, is reviewed and set aside in terms of section 145 of the Labour Relations Act.

2. That the above Arbitration Award is substituted for an order that the employer was not in breach of the provisions of the National Minimum Wage Act when it included commission earned by employees in its calculation of minimum wages, in addition to fixed wages earned by the employees, to conclude that they have been paid more than the National Minimum Wage.

3. There is no order as to costs.

____________________

T. Deane

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Henk Wissing Attorneys

For the Respondent: None

[1] Act No. 66 of 1995, as amended.

[2] Act No. 9 of 2018, as amended.

[3] See: Indexed and Paginated Bundle, Annexure CB2, pg. 24.

[4] See: Indexed and Paginated Bundle, Transcript pg. 130 and Annexure CB3, pg. 25.

[5]Act No.75 of 1997 as amended.

[6] Indexed and Paginated Bundle, Transcript pgs. 92, 98, 105, 106, 108 and others.

[7] See: Indexed and Paginated Bundle, Transcript pgs. 95, 97- 98, 106, 108, 110 and others.

[8] See: Transcript pgs. 104-105.

[9] See: Transcript pgs. 132, 134.

[10] See: Transcript pg. 134, 136-138.

[11] See: Transcript pg. 131.

[12] See: Transcript pg. 148.

[13] See: Indexed and Paginated Bundle, Annexure CB5 pg. 39.

[14] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at para 110.

[15] Ibid at paras 118-119.

[16] Computicket v Marcus NO and Others 1999 (20) ILJ 343 (LC) at 346D.

[17] [ 2012] JOL 28980 (LAC) at paras 103-104.

[18] See: National Union of Mineworkers and Another v Samancor Ltd (Tubatse Ferrochrome) and Others [2011] ZASCA 74 (25 May 2011).

[19] Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA) at para 13.

[20] Paras 267–268.

[21] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others 2014 (1) BLLR 20 (LAC).

[22] Ibid at para 21.

[23] Id at paras 18-21.

[24] [2010] 5 BLLR 577 (LC) at paras 19-23.

[25] 2008 (3) BLLR 197 (LAC) at paras 98 and 100.

[26] See: Indexed and Paginated Bundle, Arbitration Award, pg. 18 at para 2.

[27] See: Indexed and Paginated Bundle, Founding Affidavit, pg. 12.

[28] However, section 35 (5) of the BCEA allows the Minister to determine “after consultation with the Commission [ECC] and NEDLAC… whether a particular category or payment, whether in money or in kind, forms part of an employee’s remuneration for the purpose of any calculation made in terms of this Act”. This has allowed for the sectoral determinations (and bargaining agreements) to determine which components of total earnings

constitute the sector-specific minimum wage.

[29]See: Section 1 definition of “wages” as set out in the BCEA.

[30] see: Section 1 definition of “ordinarily hours of work” as set out in the BCEA.

[31] “Ordinary hours of work’’ means the hours of work permitted in terms of section 9 of the BCEA (currently 45 hours per week) or in terms of any agreement in terms of sections 11 or 12. A worker is entitled to receive the NMW for the number of hours that the worker works on any day. An employee or worker who works for less than four hours on any day must be paid for four hours for that day. If the worker is paid on a basis other than the number of hours worked, the worker may not be paid less than the NMW for the ordinary hours of work.

[32] Piecework refers to an employment arrangement where workers are paid by the piece or task, rather than by the time worked. For employers, the advantage of piecework is that it is directly tied to output and production targets. For workers, however, it can lead to long working hours and low hourly wages. For this reason, piecework is being phased out internationally. See: R. Hart, “The rise and fall of piecework” IZA World of Labor 2016: 254 doi: 10.15185/izawol.254.

[33] R. Castel-Branco “The Building Blocks of a National Minimum Wage for South Africa.” Policy Brief 1. Johannesburg: University of Witwatersrand, National Minimum Wage Research Initiative, September 2015 at pg. 3 (Policy Brief 1).

[34] R. Castel-Branco.“Policy Considerations for the Design and Implementation of a National Minimum Wage for South Africa” International Centre for Development and Decent Work. Johannesburg: University of Witwatersrand, National Minimum Wage Research Initiative.

[35] International Labour Office 2014b. “Minimum Wage Systems.” ILC.103/III/1B International Labour Conference.

[36] Low Pay Commission. 1998. “The National Minimum Wage: First Report of the Low Pay Commission Presented to Parliament by the President of the Board of Trade by Command of Her Majesty.” Low Pay Commission.

[37] R. Castel-Branco, Policy Brief 1.

[38] Section 5 of the NMWA.

[39] Sectoral Determination 14: Hospitality Sector, South Africa, Government Gazette 29885 at clause 3(2).

[40] The pay reference period is the period by reference to which a worker is paid and is usually the period of time for which a worker's wage is actually calculated.

[41] See: Protekon (Pty) Ltd v CCMA [2005] 7 BLLR 703 (LC); Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC) (Protekon) and see also S. Ebrahim “The Interpretation to Be Accorded to the Term Benefits in Section 186(2)(a) of the LRA continues: Apollo Tyres South Africa (PTY) Limited v CCMA (DA1/11)[2013] ZALAC 3” (2014) 17 Potchefstroom Electronic Law Journal 596 at 609.

[42]See: Protekon or Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) ILJ 1120 (LAC).

[43] See: Indexed and Paginated Bundle, Arbitration Award, pg. 21, para 22.1.

[44] See: Award, pg. 20, para 19.

[45] See: Award, pg. 19, para 11.

[46] See: Transcript pg. 136.

[47] See: Founding Affidavit, pgs. 14-15.

[48] See: Annexure CB4, pg. 33 & Transcript, pgs.154-156.