GOVERNMENT NOTICE, DEPARTMENT OF LABOUR, BASIC CONDITIONS OF EMPLOYMENT ACT, 1997, DETERMINATION: EARNINGS THRESHOLD, No.35404, 1 June 2012
Nelisiwe Mildred Oliphant, Minister of Labour, in terms of Section 6(3) of the Basic Conditions of Employment Act, No. 75 of 1997, (the Act), determine that all employees earning in excess of R183 008.00 (one hundred and eighty three thousand and eight rand) per annum be excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2), 18(3) of the Act with effect from 1 July 2012.

For the purposes of this notice:

“Earnings” means the regular annual remuneration before deductions, i.e. income tax, pension, medical and similar payments but excluding similar payments (contributions) made by the employer in respect of the employee: Provided that subsistence and transport allowances received, achievement awards and payments for overtime worked shall not be regarded as remuneration for the purpose of this notice.

N M OLIPHANT, MP
MINISTER OF LABOUR
Explanatory notes

The threshold earnings figure is R183 008-00 per annum.

The sections from which employees above the threshold of R183 000 are excluded are:

  • Section 9: Ordinary hours of work
  • Section 10: Overtime
  • Section 11: Compressed working week
  • Section 12: Averaging of hours of work
  • Section 13: Determination of hours of work by Minister
  • Section 14: Meal intervals
  • Section 15: Daily and weekly rest period
  • Section 16: Pay for work on Sundays
  • Section 17: Night work -17(2) that deals with transport and night shift allowances
  • Section 18: Public holidays – 18(3) that deals with payment for work on a public holiday that falls on a day on which the employee would ordinarily not have worked.

 

Employees earning under the threshold amount:

These employees have the full protection of every section of the Basic Conditions of Employment Act (BCEA).

The Act entitles such persons to certain things such as:

  • Overtime may only be worked by agreement between employer and employee.
  • The employee has the legal right and entitlement to demand payment for overtime worked at the rate of 1,5 times his normal wage rate, or at whatever rate is applicable (not less favourable than the minimum set in the Act).
  • The employee can also enter into an agreement with the employer whereby he can be given time off work instead of payment for overtime worked.
  • Generally, the employee can legally refuse to work
    • more than 45 hours per week normal time
    • more than 10 hours per week overtime
    • more than 12 hours in any one day, consisting of nine hours normal time and three hours overtime.

 

Employees earning over the threshold amount:

Persons earning over the threshold amount do not have a legal right to demand anything in respect of Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) of the Act with effect from 1 July 2012.

The employee earning over the threshold amount, do however have a right to negotiate.

Thus, the employee earning over the threshold amount must approach the employer, negotiate and reach agreement on how many normal hours and overtime work will be required from the employee. Once this has been established the parties must agree on remuneration for the overtime worked. Such remuneration may be less than the minimum prescribed by the Act.

The same must be agreed upon for work on public holidays as per section 18(3) and work on Sundays. The employee earning over the threshold cannot demand and must therefore negotiate.

The employer is in a similar position; the employer also cannot demand that employees earning over the threshold must work overtime, standby duties, attend callouts etc., without limitation and without compensation.

The reason why the employer cannot make those demands is stipulated in section 48 of the BCEA, which reads as follows:

  • Subject to the Constitution, all forced labour is prohibited.
  • No person may, before his or her own benefit or for the benefit of someone else, cause, demand, or impose forced labour in contravention of subsection (1).

 

Therefore, for employees earning over the threshold, the employer is in the same situation in that he cannot demand but must instead also negotiate.