The legislation is only applicable to employees meaning any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of the employer.
As from the 1st March 2021 this earnings threshold has been increased by the Minister of Employment and Labour. The threshold is currently at R17 633.03 per month (R211 596.30 per annum).
Employees earning less than the threshold are covered by all the labour legislation such as the Labour Relations Act, BCEA and Employment Equity Act. The sections are intended to protect vulnerable employees and regulate, amongst other things, hours of work, overtime, work over weekends, lunch breaks and even where labour disputes need to be handled if they are paid under the threshold. An employer does not have to follow Sections 9, 10, 11, 12, 14, 15, 16, 17(2) and 18(3) of the BCEA. The employer can however choose to remunerate the employees for these provisions if they earn more than the threshold. If however the employees earns in excess of the threshold they are excluded per legislation from those nine provisions. In other words, the employees are excluded from the automatic protections.
These clauses include ordinary hours of work where it states an employer may not require or permit an employee to work more than forty five hours in any week and nine hours in any day if the employee works for five days or fewer in a week. Should the employee earn above the threshold this protection does not exist. An employer may not ordinarily require or permit an employee to work overtime except in accordance with an agreement and may not permit more than ten hours overtime a week. Once again if earning above the threshold the employer may do so.
In essence employees above the threshold will not necessarily be paid for overtime and may not necessarily be given time off in exchange. Even meal intervals which are normally compulsory. Under normal circumstances an employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour. If the employee has to do some work during that meal interval or is required to be available, then the employee must be remunerated. In essence, if earning above the threshold this is not applicable.
An employee who works on a Sunday double that employees 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 a half times the employees wage for each hour worked. Once again, this is not applicable if the employee earns above the threshold.
Cape Labour & Industrial Consultants