Section 6 of the Basic Conditions of Employment Act (BCEA) makes provision for the Minister of Employment and Labour to publish a determination on the Commission’s advice that will exclude employees earning above a certain amount per year from sections of chapter 2 of the Act.

In a gazette published on 8 February 2022, the minister announced a new annual earnings threshold under the BCEA which will have implications for South African employees. The new threshold will be R224,080.48 per year (approximately R18,673 per month) from 1 March 2022.

This new threshold impacts the application of provisions of not only the BCEA but also the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).

Employees earning under this threshold enjoy the complete protection of the BCEA. However, any employees earning above the threshold are excluded from the provisions which regulate ordinary hours of work, overtime, compressed working weeks, averaging of hours of work, meal intervals, daily and weekly rest periods, Sunday pay, pay for night work, and pay for work on public holidays.

This does not mean that employees who earn higher than the threshold are not entitled to these provisions, but they are usually dealt with in their employment contracts and negotiated at the time of employment with their employers.

In terms of the LRA, employees earning higher than the threshold are not subject to the deeming provision in accordance with which employees engaged by a temporary employment service or labour broker who is not performing a temporary service are deemed to be employees of the client for purposes of the LRA. Employees earning higher than the threshold also fall outside the scope of the provisions relating to fixed-term employees who are deemed to be employed indefinitely after three months, only if there is no justifiable reason, of course.

An employee earning higher than the threshold, which has a dispute under Chapter II of the EEA relating to unfair discrimination, is not permitted to refer the dispute to the CCMA for arbitration and has to refer the dispute to the Labour Court for adjudication. Only if the dispute relates to alleged unfair discrimination on the grounds of sexual harassment, or the parties all agree to arbitration can the dispute be heard at the CCMA.

The sections covered in the BCEA, LRA and EEA are intended to protect vulnerable employees and regulate the abovementioned provisions.

Employers should be mindful of the fact that from 1 March 2022, some employees who earn more than R211,596.30 but less than R224,080.48 per year may be entitled to additional protections, such as overtime payment when working more than 45 hours per week, compulsory breaks and rest periods, night work allowances etc.

Article by: Jodi-Leigh Erasmus
Dispute Resolution Official – Gqeberha