It is most likely that you have heard of the earning threshold, but what is it and how does this affect the basic conditions of employment of a person whose earnings are above the set amount?
Section 6(3) of the Basic Conditions of Employment Act, 75 of 1997 (BCEA) provides for the Minister of Employment and Labour to make a determination that excludes the application of chapter 2 of the BCEA or any provisions of it to any category of the employee earning more than an amount stated in that determination.
The latest increase by the Minister of Employment and Labour was published on 9 February 2022, increasing the threshold to R224 080, 48 per annum, effective from 1 March 2022. The annual earnings referred to in the threshold relate to the regular annual remuneration before deductions (i.e. income tax, medical and similar payments) and excludes contributions made by the employer in respect of subsistence and transport allowance, achievement awards and payments for overtime worked.
It is important to note that an employer can always negotiate the conditions of employment with an employee who earns above the threshold whilst bearing in mind that the employee is not automatically entitled to certain conditions below. These basic conditions of employment do not automatically fall away from an existing contract of employment when you earn above the threshold. Therefore, it is important to provide an exclusion clause in an employment contract dealing with the conditions to be amended automatically when and for as long as the employee earns above the threshold.
When an employer negotiates a contract with an employee whose earnings exceed the threshold, the following should be considered.
Ordinary hours of work
The employee will be required to work according to a work schedule determined by the employer from time to time, which may exceed 45 hours per week. The daily schedule may also exceed the prescribed nine hours per day for a five-day work week or eight hours per day for an eight-hour work week.
Overtime and night work
The provision that the employee shall not work more than ten hours overtime a week or over 12 hours a day shall not apply. The employee may be expected to perform their duties after the scheduled working hours, including night work, without additional remuneration, allowances or paid time off instead of payment for work done. It will be specifically applicable when the employer reasonably requires such overtime work or when the operational requirements of the employer necessitate such work.
Although the employee can be expected to work overtime as long it is an operational requirement; the employer cannot force such an employee to work overtime. This is in terms of Section 48 of the Act, which prohibits any forced labour. The employee, however, can also not refuse to work overtime if the work which is required to be done must be done without delay owing to circumstances for which the employer could not reasonably have expected to make provision for, such as a sudden breakdown of equipment and can also not be performed by the employees during ordinary working hours.
The employer should, however, not abuse this overtime, as Section 7 of the Act still applies to a person earning above the threshold. It deals with occupational health and safety in the workplace family responsibility of the employee and refers explicitly to the Code of Good Practice on the Regulation of working time.
Meal Intervals
One of the most widely known basic conditions in the workplace is that an employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. Most people will be surprised to learn that a person who earns in excess of the threshold is not entitled to any meal interval during their working hours.
Pay for work on Sundays and Public Holiday
The employee may be expected to work on a Sunday and or a public holiday when the employer requires such work or when the operational requirements of the employer necessitate such work. No additional remuneration will be due to the employees who were required to work on these days.
Want to know more about the earning threshold and how it can affect you? Kindly contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Franko Truter started his career at SEESA in 2022. He is currently a Labour and Consumer Protection & POPI Legal Advisor at the SEESA Bloemfontein branch. Franko has an LLB degree and a Post Graduate Diploma in Financial Planning. Hewas admitted as an attorney in 2017.
Resources:
- Basic Condition of Employment Act, 1997;
- Government Gazette 45890;
- https://businesstech.co.za/news/business/556732/here-is-the-new-earnings-threshold-for-south-africa/ Additional comment by Lauren Salt and Jessie Gertzen;
- https://www.legalwise.co.za/help-yourself/legal-articles/labour-law-understanding-new-earnings-threshold;
- https://blog.seesa.co.za/index.php/2022/09/06/overtime-work-is-it-voluntary-or-not/; Charle Koegelenberg
- https://www.labourguide.co.za/conditions-of-employment/763-working-hours-and-overtime;