Certain provisions of the Basic Conditions of Employment Act of 1997 (the BCEA) pertaining to working time do not apply to senior managerial employees or employees who earn in excess of certain amount per year (the “earnings threshold”).
The earnings threshold will increase to R 183 008 per year with effect from 1 July 2012 (The previous threshold was R 172 000 per year).
How does it affect employees?
The effect of earnings threshold is that the limitations, protections or the right to additional pay afforded by certain provisions of the BCEA do not apply to employees earning in excess of the new threshold. These provision are:
- section 9 (hours of work),
- section 10 (overtime),
- section 11 (compressed working week),
- section 12 (averaging of hours),
- section 14 (meal intervals)
- section 15 (daily and weekly rest periods),
- section 16 (pay for work on Sundays)
- section 17(2) (night work), and
- section 18(3) (public holidays on which the employee would not ordinarily work).
Employees that currently earn between R172 000 and R183 008 per year were previously excluded from these provisions but will now enjoy additional protection and become entitled to payment for overtime, double pay for work on public holidays, etc. notwithstanding the fact that their contracts might state that they do not qualify. Essentially this will result in an additional expense for the employer.
What is meant by earnings?
For purposes of the new threshold “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. Subsistence and transport allowances received, achievement awards and payments for overtime worked are not regarded as remuneration for the purpose of this notice.
Can existing contracts be changed?
Existing contractual provisions with employees that earn in excess of the threshold that are more favourable to the employee, e.g. that do provide that the employee is entitled to additional pay for overtime, Sunday work, etc., remain valid an enforceable. If an employer wants tot change existing terms and conditions, it will have to be negotiated with the employee.
Disclaimer: The material above is provided for general information purposes only and does not constitute legal or professional advice. Neither the author nor the publisher accepts responsibility for any loss or damage that may arise from reliance on information contained in this article.
6 Comments
Melanie,
You may have a look at our section on domestic workers (on the home page of our web site). All minimum wages are indicated there as well as other informaiton pertaining to domestic workers.
Good Day,
I would like to know what the threshhold of salary is for full time gardeners and Domestic workers.
thanks
Melanie
Response to Aneesa: The BCEA defines a senior managerial employee as “an employee who has the authority to hire,
discipline and dismiss employees and to represent the employer internally and externally”.
Response to Thapelo: The exclusion applies only in respect of the chapter on working time. Complaints about other issues should be entertained by the DoL.
Is there any definition or guidance on who should be considered as senior managerial employees?
I take note of this increased earining threshold. But I need clarity on whether the exclusions(sections of the BCEA)also limit an employee from claiming unpaid salary, despite the fact that section 32 of the BCEA dealing with remuneration DOES not form part of these exclusions? The reason for this quiz, is because the Department of Labour Officials REFUSE to take complaints from employees or ex-employees who earn or earned ABOVE the threshold. Even in cases where the complaint or claim relates to unpaid leave, they still refuse to register the complaint on the same reason stated. The justification indicated for this is that there is a decision of the Durban Labour Court, cited as MINNY & ANOTHER v SMART PLAN CC