Swaziland - Minimum Wages - 2011

13 December 2011

Wages Act 1964, commenced 19 June 1964. Published by the Conciliation Mediation and Arbitration Commission at www.cmac.org.sz and accessed 9 December 2011.

Employment Act 1980, Act No. 5 of 1980, dated 26 September 1980, published in the Government Gazette Extraordinary No. 55 ppS48-S103. Amended by the Employment (Amendment) Act 1997, Act No. 5 of 1997, dated 28 August 1997.

Industrial Relations Act 2000, Act No. 1 of 2000, published in the Swaziland Government Gazette Extraordinary Volume XXXVIII No. 569, dated 7 June 2000.

Amended by Industrial Relations (Amendment) Act 2005, Act No. 3 of 2005, published in the Swaziland Government Gazette Extraordinary Volume XLIII No. 86, dated 1 September 2005.

US Department of State Human Rights Report 2010 - Swaziland. Published by the US Department of State at http://www.state.gov/g/drl/rls/hrrpt/2010/af/index.htm and accessed 12 December 2011.

New Legislation, last updated 29 March 2011. Published by the Federation of Swaziland Employers and Chamber of Commerce (FSECC) at http://www.business-swaziland.com/index.php?option=com_content&view=category&layout=blog&id=64&Itemid=83 and accessed 9 December 2011.

New Legislation, last updated 29 March 2011. Published by the Federation of Swaziland Employers and Chamber of Commerce (FSECC) at http://www.business-swaziland.com/index.php?option=com_content&view=category&layout=blog&id=64&Itemid=83 and accessed 9 December 2011.

For the purposes of the Wages Act, employee means a person who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, expressed or implied, orally or in writing, and whether it is a contract of service or apprenticeship or a contract personally to execute any work or labour, whether for money or other reward.

For the purposes of the Wages Act, employer means:
(a) an individual, company, firm, corporation, local authority or body of persons who or which has entered into a contract of service with any employee; or
(b) an agent, foreman, manager, recruiter or factor of such an employer, and it the Government, the officer of the Government under whom an employee is working shall be deemed to be the employer of the employee for the purpose of this Act,
Provided that no such officer of the Government so deemed to be an employer shall be personally liable for anything done by him in good faith as an officer of the Government.

Statutory minimum wage means wage fixed by a wage regulation order.

The Wages Act 1964 establishes 3 different minimum wage setting procedures.

The first is commenced at the initiative of the Deputy Prime Minister (Minister), when the Minister is of the opinion that it is expedient to fix the minimum wage of any employees in Swaziland or any part of Swaziland. In such a case, the Minister shall require a Wages Advisory Board to inquire and, following a period of public consultation, submit a recommendation as to the minimum wage which should be paid and the conditions of employment which should apply to the employees within its terms of reference.

The Wages Advisory Board is a tripartite body appointed by the Minister, constituted by not more than 3 persons chosen by the Minister as independent persons and such number as the Minister thinks fit of persons who, in his opinion, represent employers and employees. After considering any recommendation made by the Board, the Minister may make a wages order prescribing the minimum wage to be paid and the conditions of employment to be applied to any employees.

The second minimum wage setting procedure established by the Wages Act empowers the Minister to set a minimum wage rate for specified employees and their employers, following receipt of a proposal by a Wages Council. Wages Councils are tripartite bodies appointed by the Minister which may be established for specified employees and employers in any case in which the Minister is satisfied that there is no adequate wage-setting machinery for those employees, other than the Wages Advisory Board.

Before making a proposal, Wages Councils must make such investigations as it thinks fit and publish notice of its intention to make a proposal, allowing 30 days for public comment. Any written representations received within that time shall be taken into account by the Council before submitting the proposal to the Minister. When the Minister receives a proposal, he may refer the proposal back to the Council or refer the proposal to the Wages Advisory Board for its recommendation. Upon receipt of any reconsidered proposal or Board recommendations, the Minister may give effect to the (amended) proposal by a wage regulations order published in the Gazette.

The third minimum wage setting procedure may be utilised where the Minister is satisfied that an agreement or arbitration award, relating to wages or conditions of employment, has been made by parties representative of the whole, or substantially the greater proportion, of the employers and the employees in an industry. In such a case, the Minister shall make an order regulating wages or conditions of employment in accordance with the terms of the agreement or award. The order shall take effect in relation to all the employers and the employees in that industry, from the date of publication or such other date as the order may prescribe, as though it had been a wages regulation order made as a result of wages proposals made by a Wages Council.

No criteria are prescribed in relation to any of the minimum wage setting procedures.

The Wages Act applies generally to all employees and employers (as defined), including the Government, subject to certain exceptions (listed below). However, the scope of wage regulation orders varies according to the type of order and the terms of reference of the Wages Advisory Board or jurisdiction of the Wages Council responsible for its promulgation.

The Wages Act does not apply to:
(a) persons in the armed services of the Government;
(b) persons in the police force or prison services of the Government.

Wages Councils may make wage proposals in relation to:
(a) all or any employees in any trade, industry or occupation either generally or in any area of Swaziland,
(b) any class or category of those employees.

Each of the wage regulation orders available at the time of writing provide different wage rates for different occupations involved in the relevant sector.

Wages Councils may make wage proposals in relation to:
(a) all or any employees in any trade, industry or occupation either generally or in any area of Swaziland,
(b) any class or category of those employees.

At the time of writing, wage regulation orders had been made for the following industries:
(i) Building and Construction (2010);
(ii) Textile and Apparel (2009);
(iii) Manufacturing and Processing (2008);
(iv) Hotel, Accommodation, Catering and Fast Food (2008);
(v) Retail, Hairdressing, Wholesale and Distributive Traders (2009);
(vi) Pre-School and Day-Care Centres (2008);
(vii) Micro and Money Lenders (2008);
(viii) Agricultural (2007);
(ix) Forestry and Forest (2006);
(x) Domestic Service (2006);
(xi) Road Transportation (2010);
(xii) Security Services (2007);
(xiii) Manufacture and Sale of Handicrafts Industry (2005);
(xiv) Motor Engineering (1995);
(xv) Mining and Quarrying (2002);
(xvi) Media Industry (2010).

The Wages Advisory Board may inquire into the wages and conditions of employment of any employees in Swaziland or in any part of Swaziland, subject to the terms of reference issued by the Deputy Prime Minister. However, a wages order made on the recommendation of the Wages Advisory Board shall not apply to employees:
(a) in respect of whom a Wages Council is in existence; or
(b) in relation to any industry in which there is voluntary agreement the partes to which are representive of a substantial proportion of the employers and employees in that industry.

Wage regulation orders have been made for domestic workers. The US Department of State reports that the most recent wage rate for domestic workers is set at approximately 300 emalangeni per month.

If the Labour Commissioner is satisfied that any person, employed or desiring to be employed in such circumstances that a wages regulation order applies or will apply to him, is affected by any infirmity or physical or disablement, the Labour Commissioner may, if he thinks fit, issue to that person, subject to such terms (if any) as he may determine, a permit exempting the employer of the person from the provisions of the Wages Act relating to the payment of the statutory minimum wage or observance of conditions of employment.

Employees whose wages are calculated on the basis of piece work, shall be paid an amount which relates to the proportion of the piece work he has completed either during the time from which he commenced employment, or from the date on which he was last paid his wages, as the case may be.

The US Department of State Human Rights Report 2010 for Swaziland reports the following minimum wage rates:
(a) Domestic workers - approximately 300 emalangeni per month
(b) Unskilled workers - 420 emalangeni per month
(c) Skilled worker - 600 emalangeni per month

Wage regulation orders for different industries are passed at different times. The last known minimum wage updates were in 2010, applicable to the Building and Construction Industry and the Road Transportation Industry.

The Employment Act provides that an employer may, in pursuance of a written agreement with an employee, pay to that employee, in addition to monetary wages, allowances in kind which shall-
(a) be of personal benefit to the employee and his family;
(b) be of fair and reasonable value appropriate to the monetary value placed on the allowance by the employer; and
(c) not be in the form of noxious drugs or intoxicating liquor.

Further, wages regulation proposals and wages regulation orders may contain provision authorizing specific benefits or advantages to be reckoned as payment of wages by the employer in lieu of payment in cash. The wage regulation order shall define the value at which any such benefits or advantages are to be reckoned as payment of wages by the employer in lieu of payment in cash and define the value at which any such benefits or advantages are to be reckoned.

Otherwise, any requirement to pay wages under the Wages Act obliges the employer to pay the employee in cash, clear of all deductions, except those lawfully made for the purpose of a contribution to any provident or pension fund scheme approved by the Labour Commissioner or in respect of deferred pay. The Employment Act also requires employers pay all wages due to an employee under his contract of employment shall be paid to him in legal tender and not otherwise.

Employees employed on a daily basis shall be paid at the expiry of each day.

Employees employed on a weekly basis shall be paid at the expiry of each week.

Employees employed on a monthly basis shall be paid at the expiry of each month.

Employees employed for a period exceeding a month, or on a piece-rate basis, shall be paid at intervals not exceeding a month.

Employees employed on a fortnightly basis shall be paid at the expiry of each fortnight.

Employees employed under a daily contract who, by agreement or custom, are not paid daily shall be paid in accordance with such agreement or custom at intervals not exceeding one month.

No scheduled frequency of adjustment stipulated by statute.

All officers appointed as, or deemed to be labour officers or labour inspectors in accordance with the provisions of the Employment Act are deemed to be authorized officers for the purpose of the Wages Act. The Minister may authorize such other public officers as he may deem necessary for carrying out the Act.

Under the Employment Act, inspectors are empowered to:
(a) enter, examine and inspect at any reasonable time whether by or night, with or without previous notice-
(i) any premises or place in which he has cause to believe any employee or recruit may be employed or housed or which he believes to be liable to inspection;
(ii) any hospital or dispensary, or any latrines or other sanitary arrangements used, or intended to be used by employees;
(iii) kitchens and places in which food for the use of employees is stored, prepared or eaten and inspect and take samples of such food;
(b) require an employer to provide any information requested by him as to the wages, hours of work or other conditions of employment of persons employed by that employer;
(c) carry out any examination, test or enquiry which he considers to be necessary in order to satisfy himself that all legal provisions relating to employment are being compiled with and, in particular, may-
(i) question, alone or in the presence of witnesses, any employer or employee on any matter concerning the application of any law relating to employment in so far as it affects them, or apply for information to any other person whose evidence he may consider necessary;
(ii) require the production of any books, registers or other documents required to be kept by this Act or any other law relating to employment and may copy of make of extracts from such books, registers or other documents and, if he considers such a course necessary or expedient, remove such book, register or other document;
(iii) direct the posting of notices required by this Act or any other law relating to employment;
(iv) take or remove for purposes of analysis, samples of materials or substances used or handled by employees in the course of their employment, subject to the employer o his representative being notified of the removal of samples or substances taken or removed for analysis.

The employer of any employees to whom a wages regulation order applies shall keep in English such records as may be prescribed or, if not prescribed, as are necessary to show whether or not the provisions of the Act are being complied with in respect of those employees. Such records shall be retained by the employer for 2 years.

Failure to pay at least the statutory minimum wage or provide the conditions of employment prescribed in a wage regulation order, shall be punishable by a fine not exceeding 100 Emalangeni for each such offence.

Obstruction of an authorized officer in the exercise of any power conferred by the Wages Act, or refusal to comply with any requirement of such officer made in the exercise of such power, shall be punishable by a fine not exceeding 200 Emalangeni.

The following offences shall be punishable by a fine not exceeding 200 Emalangeni (or imprisonment for up to 6 months, or both):
(a) making or causing to be made or knowingly allowing to be made an entry, in a record required by the Wages Act to be kept by employers, which entry the person knows to be false in a material particular; or
(b) for any purpose connected with the Act, producing or furnishing, or causing or knowingly allowing to be produced or furnished, any wages sheet, record, list or information which the person knows to be false in a material particular.

Finally, the Employment Act provides that any employer who:
(a) fails to pay wages to an employee when those wages are due or payable;
(b) pays wages to an employee in a form, manner or place which is contrary to the provisions of Part VI of the Employment Act;
(c) makes any deduction from the wages of an employee or receives any payment from an employee contrary to the provisions of Part VI of the Employment Act;
(d) fails to provide an employee with the details of wages due to him as required by §61 of that Act;
(e) pays an employee’s wages in whole or part in the form of liquor or noxious drugs;
(f) fails to distribute a service charge as required by §52 of that Act; or
(g) fails to comply with an order made by the Labour Commissioner under §62(3) of that Act,
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding 3,000 Emalangeni (or one year’s imprisonment, or both).

Where an employer is found to have failed to pay at least the statutory minimum wage, the court shall order the employer to pay such sum as is found by the court to represent the difference between the amount which ought to have been paid to the employee by way of wages if the provisions of the wages regulation order had been complied with and the amount actually so paid.

The following offences shall be punishable by imprisonment for up to 6 months (or a fine not exceeding 200 Emalangeni, or both):
(a) making or causing to be made or knowingly allowing to be made an entry, in a record required by the Wages Act to be kept by employers, which entry the person knows to be false in a material particular; or
(b) for any purpose connected with the Act, producing or furnishing, or causing or knowingly allowing to be produced or furnished, any wages sheet, record, list or information which the person knows to be false in a material particular.

Finally, the Employment Act provides that any employer who:
(a) fails to pay wages to an employee when those wages are due or payable;
(b) pays wages to an employee in a form, manner or place which is contrary to the provisions of Part VI of the Employment Act;
(c) makes any deduction from the wages of an employee or receives any payment from an employee contrary to the provisions of Part VI of the Employment Act;
(d) fails to provide an employee with the details of wages due to him as required by §61 of that Act;
(e) pays an employee’s wages in whole or part in the form of liquor or noxious drugs;
(f) fails to distribute a service charge as required by §52 of that Act; or
(g) fails to comply with an order made by the Labour Commissioner under §62(3) of that Act,
shall be guilty of an offence and shall be liable on conviction to up to one year’s imprisonment (or a fine not exceeding 3,000 Emalangeni, or both).