Section 73A of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) has significantly expanded the CCMA’s jurisdiction in relation to disputes concerning unpaid remuneration and other amounts allegedly owed to employees. Prior to the introduction of section 73A, employees seeking payment of outstanding amounts arising from employment relationships were generally required to pursue claims through other forums. Section 73A now permits qualifying employees to refer certain monetary disputes directly to the CCMA for conciliation and arbitration. The provision has become an increasingly important mechanism for employees seeking to recover unpaid remuneration, commissions, notice pay, leave pay, and other contractual or statutory entitlements. However, the CCMA’s jurisdiction under section 73A is not unlimited, and employers should carefully assess whether the CCMA has jurisdiction before participating in the merits of such disputes.

The Scope of Section 73A

Section 73A(1) of the BCEA permits an employee or worker earning below the prescribed earnings threshold to refer a dispute to the CCMA concerning the failure to pay any amount owing in terms of:

  • the BCEA;
  • the National Minimum Wage Act;
  • a contract of employment;
  • a sectoral determination; or
  • a collective agreement.

Importantly, section 73A does not create a general jurisdiction for all employment-related monetary disputes. The CCMA’s jurisdiction remains confined to claims arising from recognised statutory or contractual obligations contemplated in the section.

The CCMA’s jurisdiction under section 73A is limited to employees earning below the earnings threshold determined by the Minister in terms of section 6(3) of the BCEA. Employees earning above the threshold are generally required to pursue claims through the Labour Court or civil courts with appropriate jurisdiction. In determining whether an employee falls below the threshold, the calculation of remuneration may become contentious, particularly where employees receive commission, incentives, or variable remuneration. This issue was considered in Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and Others (JR2014/20), where the employer sought to review an arbitration award on the basis that the CCMA lacked jurisdiction. The Labour Court confirmed that commission payments formed part of the employee’s remuneration for purposes of determining the earnings threshold. As a result, the employee’s earnings exceeded the statutory threshold, and the arbitration award was reviewed and set aside for lack of jurisdiction. The decision illustrates the importance of properly calculating an employee’s total remuneration before a section 73A dispute proceeds to arbitration. In cases involving commission-based remuneration, earnings are ordinarily assessed with reference to remuneration earned over the preceding 13 weeks.

Legal Representation in Section 73A Proceedings

Legal representation in section 73A disputes is regulated by Rule 25(1)(c) of the CCMA Rules. In terms of the rule, parties are not automatically entitled to legal representation by a legal practitioner or candidate attorney during arbitration proceedings.

Legal representation will only be permitted where:

  • all parties and the commissioner consent; or
  • the commissioner determines that it would be unreasonable to expect a party to proceed without legal representation.

Employers should therefore be prepared to deal with section 73A disputes without legal representation unless exceptional circumstances justify legal assistance.

The Con/Arb Process

Unlike certain unfair dismissal disputes where parties may object to the arbitration proceeding immediately after conciliation, section 73A disputes proceed by way of mandatory con/arb proceedings. This means that where a dispute remains unresolved during conciliation, the matter ordinarily proceeds directly to arbitration on the same day in terms of section 73A(5) of the BCEA. The practical effect is that parties are expected to attend the CCMA fully prepared to proceed with both conciliation and arbitration. Although parties may still apply for a postponement of the arbitration proceedings, the granting of such postponements remains within the commissioner’s discretion.

Practical Considerations for Employers

Section 73A disputes frequently turn on documentary and payroll evidence. Employers faced with such referrals should therefore ensure that employment contracts, commission structures, payslips, leave records, and payroll documentation are properly maintained and readily accessible. Jurisdictional challenges should also be considered at the outset of proceedings, particularly where disputes exist regarding the employee’s earnings threshold or whether the claim falls within the categories contemplated by section 73A. Where amounts are genuinely owing and incapable of legitimate dispute, employers should consider resolving such disputes expeditiously in order to minimise legal costs, interest exposure, and unnecessary litigation.

Conclusion

Section 73A has created an accessible and efficient mechanism through which qualifying employees may recover unpaid statutory or contractual entitlements through the CCMA. However, the CCMA’s jurisdiction remains limited by both the earnings threshold and the nature of the claim being pursued. Employers should therefore approach section 73A referrals carefully, with particular attention to jurisdictional objections, remuneration calculations, and the documentary evidence required to defend or resolve the dispute effectively.