South Africa’s New Threshold Updates
Threshold Earnings under the Basic Conditions of Employment Act Section 6 of the Basic Conditions of Employment Act provides for the Minister of Labour to publish a determination on the Commission’s advice that will exempt employees earning more than a specific sum per year from the provisions of Chapter 2 of the Act. The second chapter is primarily concerned with the regulation of employees’ working hours. “Earnings” refers to gross pay before deductions, which includes income tax, pension, medical, and similar payments but excludes equivalent payments (contributions) made by the employer in behalf of the employee.”
The sections from which such employees are barred are as follows:
9. Normal working hours
11. Workweek condensed
12 Hours worked on average
13. Ministerial determination of work hours
14. Intervals between meals
15. Rest periods on a daily and monthly basis
16. Compensation for Sunday work
17. Night work -17(2), which addresses transportation and night shift allowances
18. Public holidays – Section 18(3) addresses payment for work performed on a public holiday that falls on a day when the employee would not otherwise have worked.
Employees earning less than the threshold:
Every provision of the Basic Conditions of Employment Act (BCEA) applies to these employees.
The Act grants such individuals specific rights, including:
· Overtime may only be worked if both the employer and the employee agree.
· The employee has the legal right and entitlement to seek payment for overtime performed at the rate of 1.5 times his regular wage rate, or at whatever rate is applicable (but not less favorable than the Act’s minimum).
· The employee and the employer might also reach an agreement in which time off work is offered in lieu of remuneration for overtime performed.
· In general, the employee has the legal right to refuse to work more than 45 hours per week regular time, more than 10 hours per week overtime, and more than 12 hours in any one day, consisting of nine hours normal time and three hours overtime. There may be times when the employee is unable to decline, such as during an emergency overtime shift, but that is not the topic of this article.
There are several other conditions, but we won’t get into them all here because this article isn’t designed to be a BCEA training course.
People earning less than the criteria have a legal right to “demand” as a result of the preceding.
Employees earning more than the minimum wage
Anyone earning more than the threshold amount have no legal right to demand anything under Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) of the Act. However, the employer must consider Section 7 of the Act when determining the hours of labor of an employee earning more than the threshold.
7 Working Time Regulation
Every employer must limit each employee’s working hours-
(a) in conformity with any Act governing occupational health and safety; and
(b) with due consideration for employee health and safety;
(c) in accordance with the Code of Good Practice for Workplace Regulation
Time was granted in accordance with Section 87 (1) (a); and
(c) with proper attention for employees’ family responsibilities.”
Employees earning less than the criteria have a legal right to seek the above-mentioned portions.
Employees earning more than the threshold have no legal right to demand in relation to the aforementioned parts.
Employees earning more than the threshold amount, on the other hand, have the right to bargain.
As a result, the employee who earns more than the threshold amount must approach the company, negotiate, and form an agreement on how many normal hours and overtime labor will be expected of the employee. Once this is determined, the parties must agree on compensation for overtime work. Such remuneration may be less than the statutory minimum.
Work on public holidays and on Sundays must be agreed upon in accordance with Section 18(3). Employees earning above the threshold are unable to demand and must therefore negotiate. The employer is in a similar situation; the employer cannot require employees earning above the threshold to work overtime, standby responsibilities, attend callouts, and so on, without limits or compensation.
The reason why the employer cannot make certain demands is outlined in Section 48 of the BCEA, which states:
“1. All forms of forced labor are prohibited by the Constitution.”
2. No one may, for his or her own or for the profit of another, cause, demand, or impose forced labor in violation of subsection (1).”
As a result, for employees earning more than the threshold, the employer faces the same dilemma: he cannot demand but must instead bargain.
Employers should carefully assess the work terms of employees earning above the threshold and clearly specify such restrictions in the employment contract prior to the start of the employment relationship. It is critical to note that employers may not unilaterally change the employment conditions of employees earning more than R224080.48 per year after receiving the threshold earnings notice. The terms of the first employment agreement are legally enforceable and must be followed unless such changes are mutually agreed upon.
CPI Payroll Support Team