Section 6 of the Basic Conditions of Employment Act makes provision for the Minister of Labour to publish a determination on the advice of the Commission that will exclude employees earning above a certain amount per year from sections of Chapter 2 of the Act. Chapter 2 primarily deals with the regulation of working hours of employees. The current threshold is R205 433.30 per year.
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 (not an exclusive list):
- Overtime may only be worked by agreement between the 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 the following:
– 45 hours per week normal time
– 10 hours per week overtime
– 12 hours in any one day (consisting of nine hours normal time and three hours overtime) - Note: There are some circumstances where the employee may not be able to refuse, such as in emergency overtime.
From the above you will note that persons earning under the threshold have a legal right to demand.
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 2014.
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 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.
It is extremely important to remember that the employer may not, upon learning of the threshold earnings notice, make unilateral changes to the employment conditions of employees earning in excess of R205 433.30 per annum. The conditions agreed upon in the initial employment agreement are legally binding and must be honoured unless it is mutually agreed to changes these conditions.