In South Africa, many employees are abused and denied their employment rights due to the precarious employment situation.
All employees in South Africa are protected by various pieces of labour legislation, including the Basic Conditions of Employment Act and the Labour Relations Act.
However, many employers try to exploit their employees by: Dodging the employment relationship by outsourcing the work to others. This means the employer relies on fewer scrupulous employers who break labour laws, such as the Basic Conditions of Employment Act and the Minimum Wage Legislation.
Defining the relationship between themselves and the workers as “independent contractors”. This means the workers are not entitled to the same labour rights as employees.
Using part-time and piecework contracts to keep workers from accessing their full labour legal rights.
The courts have become aware of these practices and have ruled that the definition of an employee is not based solely on the contract between the employer and the worker. Instead, the courts consider a number of factors, such as:
The degree of control that the employer exercises over the worker. Whether the worker is part of the employer’s organisation. Whether the worker is economically dependent on the employer.
In one case, a judge ruled that a delivery driver was an employee, even though the contract between the driver and the employer called him an independent contractor.
The judge found that the driver was economically dependent on the employer, as he worked exclusively for that employer and earned less than the R21 000 a month threshold. The judge also found that the driver was under the control of the employer, as he had to wear a uniform and comply with the employer’s rules and regulations.
I believe many of the so-called independent contractors in South Africa are being abused and denied their labour rights. If these workers band together and challenge their employment status, they could be entitled to a number of benefits, such as pension or provident funds and medical aid.
I am also concerned about that many of these workers are foreigners and may not have the correct paperwork to work in South Africa. This needs to be addressed by the government.
In conclusion, I believe the South African labour law is designed to protect employees, but many employers are trying to circumvent these laws by classifying their workers as independent contractors. I urge workers who believe that they are being exploited to challenge their employment status and to seek legal advice.
* Michael Bagraim.
** The views expressed here are not necessarily those of Independent Media.
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