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The Basic Conditions of Employment Act, section 6, covers how the Minister of Labour will publish a threshold amount that will exclude employees earning above the set amount from sections of chapter 2 of the Act. Chapter 2 deals with the regulation of working hours of employees.

“Earnings” means gross pay before deductions, i.e. (before deducting) income tax, pension, medical and similar payments, but excluding similar payments (contributions) made by the employer in respect of the employee.”

Earnings thresholds are increased from time to time by the Minister of labour. For current thresholds, please contact [email protected] and we will send you the latest prescribed amounts.

The following are sections from which such employees are excluded are:

9. Ordinary hours of work

10. Overtime

11. Compressed working week

12. Averaging of hours of work

13. Determination of hours of work by Minister

14. Meal intervals

15. Daily and weekly rest period

16. Pay for work on Sundays

17. Night work -17(2) that deals with transport and night shift allowances

18. Public holidays – 18(3) that deals with payment for work on a public holiday that falls on a day on which the employee would ordinarily not have worked.

Any employee earning under the threshold amount are not excluded from these sections and have the full protection of the Basic Conditions of Employment Act (BCEA).

Any employee 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. 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, see below;

“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

(d) with due regard to the family responsibilities of employees.”

Employees earning under the threshold have a legal right to demand in respect of the above-mentioned sections.

Employees earning over the threshold do not have a legal right to demand in respect of the above-mentioned sections.

The employee earning over the threshold amount, do however have a right to negotiate.

In a situation where an employee earns over the threshold amount, both parties must negotiate and reach agreement on how many normal hours and overtime work will be required. Once this has been established the parties must agree on remuneration for the overtime worked. Such remuneration may be less than the minimum prescribed by the Act. An agreement must also be reached for work on public holidays as per section 18(3) and work on Sundays. The employee earning over the threshold cannot demand and must therefore negotiate.

The employer also cannot demand that employees earning over the threshold must work overtime, standby duties, attend call-outs etc, without limitation and without compensation.

The reason why the employer cannot make those demands is stipulated in section 48 of the BCEA, which 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).”

There are other conditions imposed and employers should ensure that their contracts of employment and conditions of service are in line with the requirements. For further support or advise please contact us. It is also important to note that any existing employment relationship cannot be changed should an employer learn of the threshold. The conditions agreed upon in the initial employment agreement are binding and must be honored unless such changes are mutually agreed upon.