HR 101 – Who is an Employee - Part 2

HR 101 – Who is an Employee - Part 2

By Nikki Viljoen – N Viljoen Consulting (Pty) Ltd

Please note that this pertains to South African Labour and Best Practice requirements

There is a “Code of Good Practice – Who is an Employee”, that has been published and it is a 53 page document, that looks at this question, in great detail – I will be dealing with this over the next couple of weeks.

The code starts out by setting a whole bunch of guidelines.  Its’ main objective is to make things clearer to Joe Public, about who a staff member is for the purposes of the Labour Relations Act and other Labour related legislation.

It also deals specifically with all the differences between an employee, and everything about that relationship, that is controlled (or should be) by the regulations that are promulgated by Labour Legislation and independent contracting.

There is a very big difference between the two and although we, as SMME’s sometimes blur the lines, there is a very definite line between the two.

The code also ensures that the employee is protected through the various Labour laws and that these employees are not put, by the SMME, into dodgy contracting arrangements, thereby depriving them of the protection of Labour law.

We need to understand that Labour Department are not complete idiots, they are aware of the fact that there are some employers out there, who have contracts that because of the wording, camouflage the employment relationship, and in so doing ensure that the employee does not have any legal rights to fair treatment.

There appear to be some really strange employment relationships in the Labour market such as, but not limited to:
Disguised employment,
Ambiguous employment relationships,
Non-standard employment and
Triangular relationships.

It stands to reason, that the employers to whom this applies, will at some point be caught out and when they do – understand that they will be way up past their eyebrows, in the smelly brown stuff.  So if there are any of you out there, understand you need to sort it out and you need to do that quickly!

The code requires that “any person who is interpreting or applying any of the following Acts, must take this code into account for the purpose of determining whether a particular person is an employee, in terms of the Labour Relations Act 66 of 1995 (LBR); the Basic Conditions of Employment Act 75 of 1997 (BCEA); the Employment Equity Act 55 of 1998 (EEA); or the Skills Development Act 97 of 1998 (SDA)”.

This obviously means that the definition of ‘who an employee is’? is slightly different in the Code than it is in the various Acts, and that the definition in the Code now supercedes those in the above mentioned Acts.

It also requires the Code “should also be taken into account in determining whether persons are employees in terms of the Occupational Health & Safety Act 86 of 1993 (OHSA); the Compensation of Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and the Unemployment Insurance Act 63 of 2001 (UIFA).”

Again, the definition of ‘who an employee is’? is slightly different in the Code than it is in the various Acts, and that the definition in the Code now supercedes those in the above mentioned Acts.

Next week, we will continue to look at exactly “Who is an employee”.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za or www.viljoenconsulting.co.za