Know the Rights of Workers Paid Below the Earnings Threshold

Employees earning less than what is known as the “earnings threshold” are entitled to greater protections than higher earners under South Africa’s labour laws. The threshold, which is determined by the Minister of Employment and Labour, has been increased by 2.9% to R261 748 per year (R21 812 per month) with effect from April 1.

If this applies to you or, if you’re a business owner, to your employees, you need to know the rights of such earners under the law. Equally, if you are earning more than the threshold, you need to know where you are not protected.

Rights of lower-earners

The provisions affording protections to lower-earning employees and subject to the earnings threshold are to be found within the Basic Conditions of Employment Act (BCEA), Labour Relations Act, and Employment Equity Act.

The BCEA prescribes certain minimum conditions of employment. Chapter 2 of the Act governs working hours and overtime for below-threshold employees. Among other provisions are the following:

• Maximum normal working time is 45 hours a week. This is nine hours per day (excluding lunch break) for a five-day week.

• Lunch breaks are unpaid time and the employee’s own time. A lunch break must be provided after five hours’ continuous working time. The statutory break is one hour, but by agreement this may be reduced to 30 minutes. Tea breaks do not qualify as a break in working time.

• Overtime (hours worked over and above the employee’s normal hours of work), except under certain emergency conditions, is voluntary and must be agreed to by the employer and the employee. Maximum permissible overtime is three hours on any one day or 10 hours in any one week. Time off may be granted instead of payment, but only by agreement with the employee.

• For work on a Sunday, the employee must be remunerated at double the normal wage rate, unless he/she ordinarily works on a Sunday, in which case he/she must be remunerated at 1.5 times the normal wage rate.

• Work on a public holiday requires the agreement of the employee. If the public holiday falls on a normal workday, the employee is entitled to that day off on full pay or, if he/she does work on that day, his/her normal daily wage plus the amount earned for the work performed on that day. Should the public holiday fall on a non-workday, then the employee is entitled to double his/her normal wage.

The earnings threshold has other implications, including:

• Monetary claims: Employees may refer pay disputes to the CCMA. However, an employee who earns above the threshold must approach the Labour Court for adjudication.

• Fixed-term contracts and temporary employment: Employees who earn below the threshold and are employed for more than three months may be regarded as permanently/indefinitely employed unless certain conditions are met. Temporary employment services employees may be deemed permanent employees in certain circumstances – for example, if they are placed with the client for more than three months or if they are not merely substituting an employee who is temporarily absent .

• Unfair discrimination disputes: These disputes have to be referred to the CCMA for conciliation. Those who earn above the threshold have to approach the Labour Court.

How is ‘earnings’ defined?

In the context of this legislation, “earnings” means an employee’s regular annual remuneration before deductions (PAYE, pension, medical aid and similar payments) and excluding separate employer contributions to these payments. Subsistence and transport allowances, achievement bonuses and overtime payments are not regarded as regular remuneration and therefore excluded from the earnings-threshold calculation.

Sources:

Author

  • Martin is the former editor of Personal Finance weekend newspaper supplement and quarterly magazine. He now writes in a freelance capacity, focusing on educating consumers about managing their money

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