Determination of Earnings Threshold 5 March 2024

BASIC CONDITIONS OF EMPLOYMENT ACT, 1997

DETERMINATION: EARNINGS THRESHOLD - No. 4468, 5 March 2024

I, Thebelani Watermade Nxesi, Minister of Employment and Labour, hereby 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 R 254371,67 per year  be excluded from sections 9, 10, 11, 12, 14, 15, 16, 17(2), 18(3) of the Act with effect from 1 April 2024.

The annual amount is equivalent to R 21197,64 per month.

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.

DEPARTMENT OF LABOUR

Relevant sections of the BCEA

9. Ordinary hours of work
10. Overtime
11. Compressed working week
12. Averaging of hours of work
15. Daily and weekly rest period
16. Pay for work on Sundays
17. Night work
18. Public holidays

For convenience, these provisions are replicated below:

9. Ordinary hours of work

(1)  Subject to this Chapter, an employer may not require or permit an employee to work more than—

(a) 45 hours in any week; and

(b) nine hours in any day if the employee works for five days or fewer in a week; or

(c) eight hours in any day if the employee works on more than five days in a week.

(2)  An employee's ordinary hours of work in terms of subsection (1) may by agreement be extended by up to 15 minutes in a day but not more than 60 minutes in a week to enable an employee whose duties include serving members of the public to continue performing those duties after the completion of ordinary hours of work.

(3)  Schedule 1 establishes procedures for the progressive reduction of the maximum ordinary hours of work to a maximum of 40 ordinary hours of work per week and eight ordinary hours of work per day.

10. Overtime

(1)        Subject to this Chapter, an employer may not require or permit an employee to work-

(a)      overtime except in accordance with an agreement;

(b)      more than ten hours'overtime a week.

(c)       An agreement in terms of subsection (1) may not require or permit an employee to work more than 12 hours on any day.

(2)        An employer must pay an employee at least one and one-half times the employee's wage for overtime worked.

(3)       Despite subsection (2), an agreement may provide for an employer to—

(a)        pay an employee not less than the employee's ordinary wage for overtime worked and grant the employee at least 30 minutes'time off on full pay for every hour of overtime worked; or

(b)        grant an employee at least 90 minutes'paid time off for each hour of overtime worked.

(4) (a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it.

(b)       An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

(5)        An agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.

(6)         

(a)         A collective agreement may increase the maximum permitted overtime to 15 hours a week.

(b)         A collective agreement contemplated in paragraph (a) may not apply for more than two months in any period 12 months.

11. Compressed working week

(1)      An agreement in writing may require or permit an employee to work up to twelve hours in a day, inclusive of the meal intervals required in terms of section 14, without receiving overtime pay.

(2)      An agreement in terms of subsection (1) may not require or permit an employee to work—

(a)      more than 45 ordinary hours of work in any week;

(b)      more than ten hours'overtime in any week; or

(c)       on more than five days in any week.

12. Averaging of hours of work

(1)       Despite sections 9(1) and (2) and 10(1)(b), the ordinary hours of work and overtime of an employee may be averaged over a period of up to four months in terms of a collective agreement.

(2)        An employer may not require or permit an employee who is bound by a collective agreement in terms of subsection (1) to work more than—

(a)      an average of 45 ordinary hours of work in a week over the agreed period;

(b)      an average of five hours'overtime in a week over the agreed period.

(3)      A collective agreement in terms of subsection (1) lapses after 12 months.

(4)     Subsection (3) only applies to the first two collective agreements concluded in terms of subsection (1).

15. Daily and weekly rest period

(1)       An employer must allow an employee—

(a)        a daily rest period of at least twelve consecutive hours between ending and recommencing work; and

(b)        a weekly rest period of at least 36 consecutive hours which, unless otherwise agreed, must include Sunday.

(2)          A daily rest period in terms of subsection (1)(a) may, by written agreement, be reduced to 10 hours for an employee—

(a)      who lives on the premises at which the workplace is situated; and

(b)      whose meal interval lasts for at least three hours.

(3)        Despite subsection (1)(b), an agreement in writing may provide for—

(a)      a rest period of at least 60 consecutive hours every two weeks; or

(b)      an employee's weekly rest period to be reduced by up to eight hours in any week if the rest period in the following week is extended equivalently.

16. Pay for work on Sundays

(1)      An employer must pay an employee who works on a Sunday at double the employee's wage for each hour worked, unless the employee ordinarily works on a Sunday, in which case the employer must pay the employee at one and one-half times the employee's wage for each hour worked.

(2)       If an employee works less than the employee's ordinary shift on a Sunday and the payment that the

employee is entitled to in terms of subsection (1) is less than the employee's ordinary daily wage, the employer must pay the employee the employee's ordinary daily wage.

(3)       Despite subsections (1) and (2), an agreement may permit an employer to grant an employee who works on a Sunday paid time off equivalent to the difference in value between the pay received by the employee for working on the Sunday and the pay that the employee is entitled to in terms of subsections (1) and (2).

(4)      Any time worked on a Sunday by an employee who does not ordinarily work on a Sunday is not taken into account in calculating an employee's ordinary hours of work in terms of section 9(1) and (2), but is taken into account in calculating the overtime worked by the employee in terms of section 10(1)(b).

(5)       If a shift worked by an employee falls on a Sunday and another day, the whole shift is deemed to have been worked on the Sunday, unless the greater portion of the shift was worked on the other day, in which case the whole shift is deemed to have been worked on the other day.

(6)      

(a) An employer must grant paid time off in terms of subsection (3) within one month of the employee becoming entitled to it.

(b)       An agreement in writing may increase the period contemplated by paragraph (a) to 12 months.

17. Night work

(1)       In this section, "night work" means work performed after 18:00 and before 06:00 the next day.

(2)      An employer may only require or permit an employee to perform night work, if so agreed, and if—

(a)        the employee is compensated by the payment of an allowance, which may be a shift allowance, or by a reduction of working hours; and

(b)        transportation is available between the employee's place of residence and the workplace at the commencement and conclusion of the employee's shift.

(3)          An employer who requires an employee to perform work on a regular basis after 23:00 and before 06:00 the next day must—

(a)       inform the employee in writing, or orally if the employee is not able to understand a written communication, in a language that the employee understands—

(i)         of any health and safety hazards associated with the work that the employee is required to perform; and

(ii)        of the employee's right to undergo a medical examination in terms of paragraph (b);

(b)        at the request of the employee, enable the employee to undergo a medical examination, for the account of the employer, concerning those hazards—

(i)         before the employee starts, or within a reasonable period of the employee starting, such work; and

(ii)        at appropriate intervals while the employee continues to perform such work; and

(c)        transfer the employee to suitable day work within a reasonable time if—

(i)      the employee suffers from a health condition associated with the performance of night work; and

(ii)     it is practicable for the employer to do so.

(4)          For the purposes of subsection (3), an employee works on a regular basis if the employee works for a period of longer than one hour after 23:00 and before 06:00 at least five times per month or 50 times per year.

(5)        The Minister may, after consulting the Commission, make regulations relating to the conduct of medical examinations for employees who perform night work. [Section 90 protects the confidentiality of any medical examination conducted in terms of this Act]

18. Public holidays

[In terms of section 2(2) of the Public Holidays Act, 1994 (Act No. 36 of 1994), a public holiday is exchangeable for any other day which is fixed by agreement or agreed to between the employer and the employee]

(1)      An employer may not require an employee to work on a public holiday except in accordance with an agreement.

(2)          If a public holiday falls on a day on which an employee would ordinarily work, an employer must pay—

(a)        an employee who does not work on the public holiday, at least the wage that the employee would ordinarily have received for work on that day;

(b)        an employee who does work on the public holiday—

(i)      at least double the amount referred to in paragraph (a); or

(ii)     if it is greater, the amount referred to in paragraph (a) plus the amount earned by the employee for the time worked on that day.

(3)     If an employee works on a public holiday on which the employee would not ordinarily work, the employer must pay that employee an amount equal to—

(a)      the employee's ordinary daily wage; plus

(b)      the amount earned by the employee for the work performed that day, whether calculated by reference to time worked or any other method.

(4)      An employer must pay an employee for a public holiday on the employee's usual pay day.

(5)       If a shift worked by an employee falls on a public holiday and another day, the whole shift is deemed to have been worked on the public holiday, but if the greater portion of the shift was worked on the other day, the whole shift is deemed to have been worked on the other day.

NOTE:

The earnings threshold impacts the application of provisions of the Basic Conditions of Employment Act, 1997 (BCEA), the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).

The provisions of sections 198A ("temporary service" or labour brokers), 198B (fixed term employees) and 198C (part time employment) of the Labour Relations Act do not apply to employees earnings over the earnings threshold.

In terms of the Employment Equity Act, an employee earning in excess of the earnings threshold, who 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 (unless the dispute relates to alleged unfair discrimination on the grounds of sexual harassment, or the parties all agree to arbitration) and is obliged to refer the dispute to the Labour Court for adjudication.