by Jonathan Goldberg and Grant Wilkinson
Today’s workforce is changing at a rate of knots. We are about to dive, head first, into the Fourth Industrial Revolution, where many are anxious that the ‘robots’ will take over many existing jobs. With this change a new breed of workers has arisen, who have called themselves the “Gig Economy” as they make their living as freelancers working from gig to gig.
What are their legal rights?
In South Africa – as in many other countries across the world – members of the gig economy do not fall under the protection of labour law as they as not employees. They are ‘independent contractors’:
- Both Section 1 of the Labour Relations Act (LRA) as well as Section 1 of the Basic Conditions of Employment Act (BCEA) specifically state that an independent contractor does not fall under the definition of an employee who enjoys all the rights and protections afforded to him or her by labour law.
However, Section 83 of the BCEA does not close the door on the fact that independent contractors will never be seen as employees. This section states that the Minister of Labour has the power to declare any other class of persons – who are not seen as employees currently – to be employees so that they can be covered by labour legislation. When and if this will happen is anyone’s guess however, it’s interesting to note that the option is there.
Interestingly enough, Andrew Stewart who is a professor of law at the University of Adelaide and Jim Stanford who is an economist for the Centre of Future Work at the Australia Institute – when considering the legal options for covering freelance and gig workers under labour law – also included, in their possible solutions, extending existing labour legislation to cover these individuals.
Their five options for bringing freelancers into ambit of labour law are:
- Include gig workers under the current labour legislation,
- Expand the current definitions of employment to include gig workers,
- Create a new category of worker, i.e. an ‘independent worker’,
- Workers’, and not employees’, rights should be created.
- Relook at what the definition of an employer is so as to allow for the possibility for workers to have more than one employer.
What do you think about Stewart and Stanford’s proposal? Do you think that it would work in South Africa?
As always, we welcome your feedback and if you have any questions, please do not hesitate to contact us.
Yours in labour law,
Johnny and Grant
PS: Our Annual Labour Law Update is coming up in October and Nvoember. On this day-long event, you will have the opportunity to hear our CEO and labour law expert, Johnny Goldberg, dissect the latest case law and what it means for your business. To register, follow this link to download the registration form.