Employees earning above the BCEA threshold.
Aviation Union of Southern Africa
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In today's article, I want to chat about the South African Basic Conditions of Employment Act, or BCEA for short. More specifically with regards to employees earning above the threshold.?
The Act sets out the minimum rights and obligations of employers and employees in the country, including working hours, leave, and termination of employment. It sets a maximum number of working hours, provides for paid leave, and protects employees from unfair dismissal. The Act aims to ensure fair and equitable working conditions for all employees in South Africa.?
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 the following sections of chapter 2 of the Act:?
In terms of the Government Gazette dated February 8, 2022, and with effect from March 1, 2022, employees whose annual ‘earnings’ equal or exceed R224,080.48 will be excluded from the application of various sections of Chapter Two (Regulation of Working Time) of the BCEA. “Earnings” means the regular annual remuneration before deductions.?
Employees earning under the threshold amount will have the full protection of every section of the Basic Conditions of Employment Act (BCEA) with some exceptions as allowed by the Act.?
Employees 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 employer must however in determining the hours of work of the employee earning above the threshold take into consideration section 7 of the Act:?
“7: Regulation of working time?
Every employer must regulate the working time of each employee-?
?(a) in accordance with the provisions of any Act governing occupational health and?safety;?
(b) with due regard to the health and safety of employees;?
(c) with due regard to the Code of Good Practice on the Regulation of Working?Time issued under section 87 (1) (a); and?
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(d) with due regard to the family responsibilities of employees.”?
Employees earning over the threshold do not have a legal right to demand in respect of Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3). But the employee do however have a right to negotiate.?
Thus, the employee earning over the threshold amount does have the right to approach the employer to negotiate and reach an agreement on the conditions of employment with respect to Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) of the Act. Once this has been established the parties must agree on remuneration for the overtime and other compensation. Such remuneration may be less, equal, or more than the minimum prescribed by the Act.?
On the other hand, according to section 48 of the BCEA, the employer also cannot demand that employees earning over the threshold must work overtime, standby duties, attend callouts etc, without limitation and without compensation.??
Section 48 of the BCEA reads as follows:?
“1.?Subject to the Constitution, all forced labour is prohibited.?
?2.?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, regarding Chapter 2, Sections 9, 10, 11, 12, 14, 15, 16, 17(2), and 18(3) of the Act for employees earning over the threshold, both employee and employer must come to an agreement with Section 7 of the Act in mind.?
Now that you are a little wiser, we as the Aviation Union of Sothern Africa would like to invite you to become a member of our Union. Once you are a member, we can asset with negotiating better conditions of employment that will be beneficial to the employee and sustainable to the employer. Our membership is open to all employees employed by an Aviation Industry Company or a Subsidiary thereof registered in South Africa. Please feel free to contact us by e-mail at [email protected]?telephonically at 011 978 6508 or via WhatsApp at +27 82 405 1127?
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