The employment and labour department made new changes to the the Basic Conditions of Employment Act (BCEA) that will impact workers whose salaries have increased beyond R21,200 a month in 2024.
Workers should be aware that the earnings threshold impacts the application of provisions of BCEA, the Labour Relations Act (LRA) and the Employment Equity Act (EEA).
According to the new changes workers in SA at this earnings threshold lose automatic protections under the act.
These protections are related to ordinary hours of work, overtime and public holiday pay.
The Act has increased its threshold to R254,371.67 from R241,110.59 and will become effective from the April 1.
According to a statement by the law firm Cliffe Dekker Hofmeyr Incorporated, in terms of the BCEA, employees earning in excess of the earnings 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.
LABOUR RELATIONS ACT
The law firm noted that with regard to the LRA, employees earning in excess of the earnings 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.
“In addition, employees earning in excess of the earnings threshold fall outside the scope of the provisions relating to fixed-term employees who are deemed to be employed indefinitely after three months (in the absence of justifiable reasons for fixing the term of the contract),” law firm said.
Sandile July, the head of Employment at Werkmans Attorneys explained to IOL News that with effect from April 1, the earning threshold is R 254,771.61 per annum.
He goes on to add that from April an employee who earns less than the threshold and is employed through a temporary service (TES) for more than 3 months will be deemed an employee of the client.
“Those who earn more than threshold are excluded. Equally if you are employed on a fixed term contract for longer than three months you are deemed an employee for indefinite duration. The exception is if the employer can justify the reasons for contracting for more than three months,” July said.
EMPLOYMENT EQUITY ACT
Cliffe Dekker Hofmeyr stated that in terms of the the EEA, 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.
“For purposes of determining whether an employee earns in excess of the earnings threshold, ‘earnings’ means an employee’s regular annual remuneration before the deduction of income tax, pension fund contributions, medical aid contributions and similar payments, but excludes similar payments or contributions made by the employer in respect of the employee,” Cliffe Dekker Hofmeyr said.
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