29 June 2020 by Michael Bagraim
Throughout the various stages of our lockdown and in particular the various efforts and claims that the government has tried to put in place to ensure that employees have some money over this period has made us think very carefully as to what an employee is.
Interestingly, the Unemployment Insurance Fund (UIF) has tried to implement regulations to at least recognise workers who weren’t contributing to UIF to receive some monies.
Despite the various inefficiencies of the UIF it has made all of us think about the nature of work and the structure of the worker relationship with the so-called employer. We have touched on this in the past but it is worth revisiting in order to have a look at the interpretation of the definition of an employee in terms of all the legislation.
Various labour-related acts of Parliament define an employee: the UIF Act; Compensation for Occupational Injuries and Diseases Act; Occupational Health and Safety Act; the Labour Relations Act and the Basic Conditions of Employment Act. All these pieces of legislation have similar definitions and much of this is contained in the Code of Good Practice; who is an employee as published through the Employment and Labour Department. The one exception is the national minimum wage legislation which actually goes one step further and describes a “worker” as opposed to an “employee”.
There are also amendments to the various pieces of legislation including clauses which deem certain workers to actually be employees.
For instance, if a worker works for three months or more at a particular workplace and earns under the threshold, which is R17200 per month, that person is deemed to be an employee of that particular business.
There were many types of labour market arrangements disguising employment including triangular employment relationships. It must be remembered that there are indeed true independent contractors and there are many types of atypical employment relationships. As we move into the 4th Industrial Revolution and we have a complete relook at the employment arena, it is going to be necessary to embrace atypical employment and move away from the hidebound structures of the employment relationship.
Once we move away from the hidebound relationship we need to have a relook at the various occupational health and safety acts. For instance, in South Africa thousands of workers are working from home. Their home becomes their workplace and it is almost impossible for an employer to ensure that there are health and safety regulations in place, and more so it is impossible to ensure that all the rights contained in the Basic Conditions of Employment Act are intact and enforced.
It is vital at this point for every employer, and employees for that matter, to have a careful relook at Section 200A of the Labour Relations Act and Section 83A of the Basic Conditions of Employment Act.
There are specific employees who are employed by the temporary employment services sector and there are certain presumptions of employment and statutory definitions of who those employees work for and who becomes responsible to enforce duties and to where the employee turns to enforce rights.
Regardless of the form of the contract and its contents, the presumption of employment can be enforced.
The code states: “Therefore a statement in a contract that the applicant is not an employee or is an independent contractor must not be taken as conclusive proof of the status of the applicant.”
This specifically outlines that the contract entered into between the two parties is not the sole determining factor of whether that person is an employee and who is the employer. The legislation does outline seven listed factors.
If one or more of these factors are present in the relationship with the person for whom they work or to whom they render services then they can be deemed to be employees.
For instance, if the person’s hours of work are subject to the control or direction of another person or if that person has worked for another person for an average of at least 40 hours per month over the last three months then those people would be deemed to be employees of the organisation for whom they work.
As a catch-all phrase, if a person is economically dependent on the other person for whom he or she works or renders a service then that person generally is deemed to be an employee.
The Employment and Labour Ministry has to have a careful look at the organisational structure of all our labour legislation to see if the mechanics and onerous regulations are archaic and to see if a lot of these functions can be deregulated so as to ensure that small business starts to employ people again without having the negative aspects of our labour law weighing the business down.
All of us have to try to survive in a changing environment, and one of those environments which has radically changed over these last two months is the employment arena.
* Michael Bagraim is the DA’s deputy spokesperson for Employment and Labour, and a labour lawyer.
Source: IOL at https://www.iol.co.za/capeargus/opinion/defining-an-employee-during-lockdown-era-49490410