It all depends on what you’re earning

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Tony Healy

The increased Basic Conditions of Employment Act income threshold came into effect on July 1.

In terms of this amendment, employees earning more than R183 008 a year are excluded from various sections of the act, including the payment of overtime.

More specifically, employees earning in excess of this threshold are excluded from sections 9, 10, 11, 12, 15, 17(2), 18(3) of the act.

These sections include provisions relating to ordinary hours of work, the payment of overtime, meal intervals and rest periods.

The Basic Conditions of Employment Act (BCEA) does not apply to all employees.

In terms of section 3 of the act, members of the National Intelligence Agency, the SA Secret Service and the SA National Academy of Intelligence are excluded from the provisions of the act.

Also, people who work for less than 24 hours a month are excluded from the act’s provisions.

In addition, “unpaid volunteers working for an organisation serving a charitable service” are also excluded from the act’s provisions.

It is, however, not merely these provisions which exclude employees from the provisions of the act.

The Department of Labour issues determinations from time to time which, in terms of section 6(3) of the act, exclude the application of certain sections of the act, occasionally referred to as “partial BCEA exclusions”.

The factor used to determine who is and is not excluded from certain sections of the BCEA is an employee’s earnings.

These determinations are not, unfortunately, updated annually, but are invariably amended pretty much every few years.

The sections referred to – from which employees earning over this threshold are excluded – are ordinary hours of work, overtime, compressed working week, averaging of hours of work, daily and weekly rest periods, agreement on night shift work and increased pay for work on public holidays.

Simply put, if an employee earns in excess of R183 008 a year, the employer is not compelled to comply with the specified sections of the act regarding that member of staff.

The Government Gazette defines earnings as “the regular annual remuneration before deductions, ie 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 allowance received or achievement awards, intermittent payments for occasional overtime shall not be regarded as remuneration for the purpose of this notice”.

Remuneration itself is defined in section 1 of the act as “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person”.

Certain other employees are also excluded from the provisions of the act.

For example, no employee qualifies for family responsibility leave until they have accumulated four months of continuous service.

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A case in point

Dhlamini & 1 other v Greenfour Security

CCMA Arbitration Case No KN3154

The applicants were employed as security guards and had been dismissed for failing to adhere to the company dress code.

In particular, they refused to shave in order to be “cleanly shaven at all times when reporting for duty” as per a company rule of which they were aware.

This rule was relaxed only in “extreme cases” where an officer had a letter from a dermatologist supporting a medical reason for not shaving.

A disciplinary hearing was convened at which the applicants submitted that they could not shave their beards as they had been baptised and had taken an oath as Nazareth believers.

A company witness testified that the applicants had beards on engagement, but not “long beards as they do today”.

The commissioner held that the dismissals were not related to “misconduct”, as would first appear, but to alleged dismissal on religious grounds; the respondent disputed this.

The commissioner, however, held further that the CCMA does not have jurisdiction to arbitrate the matter in light of the alleged unfair discrimination part of the dispute and the dispute should be referred to the Labour Court.