7 December 2011

Labour Code Order 1992, Order No. 24 of 1992, Government Gazette, Extraordinary, 1992-11-12, Vol. XXXVII, No. 118, pp. 1195-1441. As Amended to Labour Code (Amendment) Act, 2006.

Labour Code Wages (Amendment) Order 2009, Legal Notice 169 of 2009 as published in the Lesotho Government Gazette (Extraordinary) in Volume LIV No. 78 on Wednesday 18 November 2009 at pp607-616.

US Department of State Human Rights Country Report 2010 - Lesotho. Published by the United States Department of State at www.state.gov and accessed 2 December 2011.

Employee means any person who works in any capacity under a contract with an employer in either an urban or a rural setting, and includes any person working under or on behalf of a government department or other public authority.

Employer means any person or undertaking, corporation, company, public authority or body of persons who or which employs any person to work under a contract and includes:
(a) any agent, representative, foreman or manager of such person, undertaking, corporation, company, public authority or body of persons who is placed in authority over the employee; and
(b) in the case of:
(i) a person who has died, his or her executor;
(ii) a person who has become of unsound mind, his or her Curator Bonis;
(iii) a person who has become insolvent, the trustee of his or her insolvent estate;
(iv) a company in liquidation, the liquidator of the company.

Wages means remuneration or earnings, however designated or calculated, capable of being expressed in terms of money, fixed by law or by a mutual agreement made in accordance with the Code, and payable by virtue of a written or unwritten contract of employment to an employed person for work done or to be done or for service rendered or to be rendered.

Statutory minimum wage means any wage fixed by a wages order.

The Minister shall, by order, establish a Wages Advisory Board which shall, upon being required to do so by the Minister, inquire into the wages and conditions of employment of any employees in such part of Lesotho as may be specified in the order.

The Wages Advisory Board shall consist of:
(a) not more than three persons appointed by the Minister who shall be known as independent members;
(b) such number of persons as the Minister deems necessary to represent employers; and
(c) such number of persons as the Minister deems necessary to represent employees.

The Wages Advisory Board may submit a recommendation or proposal to the Minister with respect to minimum wages, either upon the request of the Minister or on its own initiative. However, before submitting a recommendation or proposal, the Board shall:
(i) publish a notice of intention to submit recommendations or proposals in the Government Gazette;
(ii) allow for a period of at least 30 days within which written representations with respect to the recommendations or proposals may be sent to the Board; and
(iii) consider any representations made to it;
(iv) may make such further inquiries as it considers necessary; and
(v) submit the recommendations or proposals to the Minister, either with or without amendment, having regard to written representations received.

Where recommendations or proposals have been submitted to the Minister, the Minister may refer them back to the Board, and the Board shall then reconsider them, having regard to any observations made by the Minister and, either with or without amendment, resubmit the recommendations or proposals to the Minister.

Where recommendations or proposals have been submitted or resubmitted, the Minister may, after informing the Board of the decision taken, prescribe the minimum wage to be paid and the conditions of employment to be applied to any employees. The wages order shall be published in the Government Gazette and shall take effect on the date specified therien.

Where the Minister is satisfied that an agreement or arbitration award, relating to wages and/or conditions of employment, has been made by parties representative respectively of the whole, or substantially the greater proportion of, the employers and the employees in any industry, the Minister may make an order regulating wages or conditions of employment in accordance with the terms of such agreement or award and cause such order to be published in the Government Gazette.

From the date of such publication or such date as the industry-wide order may prescribe, the industry-wide order shall take effect in relation to all the employers and the employees in such industry as though it had been a wages order made pursuant to sections 50 and 51 of the Labour Code.

No statutory provisions stipulating criteria to be applied when minimum wage rates are set or adjusted identified.

The minimum wage provisions of the Labour Code apply general to employees and employers as defined. However, the scope of any particular wages order shall be determined by its terms, according to the scope of the mandate issued to the Wages Advisory Board by the Minister.

The Labour Code Wages (Amendment) Order 2009 provides a general minimum wage and sets specific wage rates for the following sectors:
(1) clothing textile and leather manufacturing;
(2) construction;
(3) wholesale and retail;
(4) retail (other than small business);
(5) hospitality;
(6) service;
(7) transport and other drivers;
(8) small business; and
(9) domestic workers (including light physical workers).

A specific minimum wage is set for domestic workers. The Labour Code Wages (Amendment) Order 2009 sets the following minimum wage rates for domestic workers:
(1) for employees with less than 12 months continuous service with the same employer - 313 Maloti per month;
(2) for employees with more than 12 months continuous service with the same employer - 345 Maloti per month.

The Labour Code Wages (Amendment) Order 2009 sets the general minimum monthly wage at:
(1) 836 Maloti for employees with less than 12 months continuous service; and
(2) 912 Maloti for employees with more than 12 months continuous service.

1 October 2009

The wages of every employee shall be made payable in legal tender only, and any agreement whereby the whole or any part of the wages of an employee are made payable in any other manner shall be void. However, nothing in the Code shall render illegal an agreement or contract with an employee to provide the employee, as partial remuneration for his or her services in addition to money wages, with food, a dwelling place and/or such other allowances or privileges as may be customary in the trade or occupation concerned.

Where the employee is provided with accommodation, the applicable statutory minimum wage may be reduced by such amount as may be determined by the relevant wages order.

The Minister may make regulations whereby, in specified classes of employment or in particular cases, contracts may provide for the partial payment of wages in the form of allowances in kind. Wages orders may also authorise the provision of certain benefits or advantages by the employer in lieu of cash and define the value of such benefits.

In the case of a contract at piece-work rates, wages shall be paid at the expiration of each day’s work, however:
(i) an employer may, at the written request of an employee, accumulate such wages and make payment on pay-days at intervals not exceeding one month; and
(ii) such part of the wages as consists of overtime pay or allowances additional to basic pay may be paid on the immediately subsequent pay-day.

In the case of a contract for a period of less than one month, wages shall be paid on the last day of each week.

In the case of a contract for a period exceeding one month, wages shall be paid at intervals not exceeding one month.

In the case of a contract under which a specific task is to be performed, or a journey is to be undertaken, without reference to time, the wages shall be payable on the completion of the task.

However, if the task or journey could not reasonably be expected to be completed within five weeks, the employer shall none the less pay the employee a reasonable sum, according to the amount of work done, at intervals not exceeding one month.

The Wages Advisory Board shall review the minimum standards of wages and conditions of employment established during previous years by wages orders, and consider whether any change in those minimum standards should be recommended to the Minister, in every calendar year.

For the purposes of enforcing the provisions of the Labour Code, labour officers may freely enter and inspect any place where or about which or in the vicinity of which any employee or recruited person is (or is reasonably thought to be) employed, housed or transported. However, a labour inspector may not enter or inspect a private dwelling-house, or any land or building privately occupied in connection therewith, either:
(a) during the hours of darkness; or
(b) during the hours of daylight without the consent of the occupier.

Labour officers may carry out an examination, test or inquiry which he or she may consider necessary, including:
(i) questioning, alone or in the presence of witnesses, any employer or recruiter, any person acting on behalf of an employer or labour agent or any employee or recruited person on any matter concerning the application of the Code or any other written law relating to labour or employment, or any other person from whom he or she considers useful information may be obtained; and
(ii) requiring the production of any records, books, accounts, statistics or other documents relating to the employment of any recruited person and taking certified copies of such records, books, accounts, statistics or other documents.
Any person so examined must provide the information required of him or her to the labour officer, subject to the right against self-incrimination.

The employer of any employee to whom a wages order applies shall keep in Sesotho or English such records as are necessary to show whether or not the provisions of this Part are being complied with in respect of such employees. The records shall be retained by the employer for a period of at least five years after the date of the last entry therein. Whenever so required by a labour officer, the employer shall produce such records, books, accounts and statistics for examination and making certified copies.

If an employer fails to pay an employee to whom a wages order applies at least the statutory minimum wage, or fails to comply with the record-keeping requirements relating to statutory minimum wages, the employer may be punished by a fine of up to 300 maloti.

If an employer fails to pay an employee to whom a wages order applies at least the statutory minimum wage, or fails to comply with the record keeping requirements relating to statutory minimum wages, the employer may be punished by imprisonment for a period not exceeding 3 months for each such offence.

Further, the court shall order the employer to pay such sum as it finds 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 order had been complied with and the amount actually paid.

Where an employer fails to pay an amount due on judgment against him or her, he or she may be punished by imprisonment either until the payment is made or for a period of 6 months, whichever is shorter.

11 July 2012

Employment and Industrial Relations Act (Chapter 452), dated 27 December 2002, as amended up to Act V of 2011.

National Minimum Wage Standard Order of 1992, as amended up to Legal Notice 502 of 2011.

Wage Increase National Standard Order, Notice No. 169 of 1989, as amended to Legal Notice 501 of 2011.

Domestic Service Wages Council Wage Regulation Order of 1st February of 1976, as amended up to Legal Notice No. 504 of 2011.

"Employee" means any person who has entered into or works under a contract of service, or any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker, but excluding work or service performed in a professional capacity or as a contractor for another person when such work or service is not regulated by a specific contract of service.

"Employer" includes a partnership, company, association or other body of persons, whether vested with legal personality or not.

"Wages" means remuneration or earnings, payable by an employer to an employee and includes any bonus payable under article 23 other than any bonus or allowance related to performance or production.

One national minimum wage is set by the government in the National Minimum Wage, National Standard Order. This minimum wage is set in accordance with the recommendations made by the Employment Relations Board, set up of the Director responsible for Employment and Industrial Relations who shall act as Deputy Chairperson, four employees representatives, four employers representatives, three other persons to be appointed by the Minister and an independent chairperson.
Sectoral minimum wages are also set by the government in accordance with Employment Relations Board.

Wages may be set by collective agreement, but wage rates may not be less favourable than those stipulated by the government in national standard orders, or sectoral regulation orders.

A mandatory Cost of Living Allowance (COLA), based on the inflation rate of the previous 12 months as calculated by the Retail Price Index (RPI), is added every year to all wage levels including the minimum wage.

A yearly order is made by the government, setting forth the wage increase to be given to all employees in order to offset any increase in cost of living.

The National Minimum Wage National Standard Order applies to all employees, except those covered by sectoral regulation orders, in such cases, the minimum wage in the sectoral regulation order applies.

The National Minimum Wage National Standard Order applies to all workers regardless of their occupation. Sectoral minimum wage orders may vary by occupation, for example separate minimum wage rates have been set for: Seamen, Port Labour, Cinemas and Theatres, Domestic Service, and Sextons and Custodians.

Specific Wage Regulation Orders for sectors may be set. At present, those are: Hotels and Clubs; Public Transport; Construction, Agriculture; Beverage; Clay and Glass Work Products; Food Manufacturing; Hire cars and Private Buses ; Hospitals and Buses; Jewellery and Watches; Papers, Plastic, Chemicals and Petroleum; Private Security Services; Professional Offices; Tobacco Manufacture; Woodworks and Private Cleaning Services; Textiles and Allied Industries; Leather Goods and Shoes Industries; Transport Equipment, Metal and Allied Industries; Agriculture and Allied Industries

The minimum remuneration of workers shall be as follows:
Full-Timers
Workers in Group 1 are entitled to €682.07 per month
Workers in Group 2 are entitled to €677.41 per month
Workers in Group 3 are entitled to €157.53 per week
Workers in Group 4 are entitled to €155.58 per week

Part-Timers
Workers in Group 5 are entitled to €25.96 per day
Workers in Group 6 are entitled to €3.89 per hour

The national minimum wage National Standard Order sets separate minimum wage rates for workers under 17 years old, workers between 17 and 18 years old and workers of 18 years old and older.

The minimum wage rate for 2012 for workers under 17 years old is set in €148.49 per week and for workers between 17 and 18 years old in €151.67 per week.

Work or service performed in a professional capacity or as a contractor for another person when such work or service is not regulated by a specific contract of service is excluded from the minimum wage scope.

Piece rate workers are specifically provided for in the sectoral determinations for the textile sector and the tobacco-manufacturing sector.

Part-time employees shall be paid pro-rata at an hourly rate not below the national minimum wage.

Employees with 18 years old or older shall be entitled to a minimum wage rate of €158.11 per week plus a €4.66 per week cost of living allowance.

Effective from 1st January, 2012

Every worker is entitled to be paid the minimum wage rate entirely in legal tender. In-kind payments, like accommodation, food or other benefits, are permitted as remuneration but only as an addition thereto.

The National Minimum Wage National Standard Order and most Sectoral Wage Regulation Orders set wage rates on a weekly basis.

The legislation does not state how frequently minimum wage rates should be adjusted, however National Minimum Wage Standard Orders are in fact adjusted on a yearly basis (on the 1st of January of each year) as are most sectoral determinations.

The Minister shall appoint labour inspectors to carry out inspections in order to ensure compliance with all employment and industrial relations regulations, including minimum wage rates set in national standard orders or sectoral regulation orders.

Failure to pay an employee the rate stipulated in any national standard order or sectoral regulation orders, shall result in of fine of between Lm 232.94 and Lm 2,329.37; and an order to pay the employee or employees concerned, the amount that ought to have been paid.