The Labour Relations Act (LRA) is very clear about the definition of an employee. The definitions section of the LRA states that an employee is:
“any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer.”
Unfortunately, the LRA is silent on the definition of an independent contractor. However, the Basic Conditions of Employment Act (BCEA) provides an interesting spin on the definition of an employee. Section 83 states as follows:
“The Minister may, on the advice of the Commission and by notice in the Gazette, deem any category of persons specified in the notice to be employees for purposes of this Act or any sectoral determination.”
Thus, the Minister of Labour may – on advice of the Employment Conditions Commission – proclaim ANY category of people to be employees under the BCEA. This means that independent contractors could, conceivably, be declared to be employees under the BCEA.
In the case of Aslam & Others v Uber BV & Others (Case Nos: 2202550/2015, 28 October 2015 the issue of independent contractor versus employees was raised in the United Kingdom. A number of Uber drivers contested the fact that the car company stated that they were employees, even though they were employed by third parties who owned the car that they were using or were using their own cars. The court ruled that these drivers were, in fact, employees of Uber. (A similar case was decided at the CCMA last week where the issue of some Uber drivers being deemed as employees was considered.)
We, at Global Business Solutions, offer a holistic HR consulting service. Included in our offering is:
- The drafting of employment contracts
- Drafting or reviewing HR policies and procedures
- Performance Management
- Drafting or reviewing Disciplinary Codes and Procedures
- Drafting and conducting Employee Satisfaction Surveys
- Reviews of remuneration structures
- Conducting job interviews and shortlisting of candidates
- Strategic HR Planning
- Organisational Design
For more information about these, as well as our other services, click here.