What should employers know regarding the position of a “casual labourer” in South Africa?
Firstly, it is important to determine what a “casual labourer” is and if “casual labourers” still exist. Prior to the amendments of the Basic Conditions of Employment (BCEA) of 1983, the act referred to casual labourers as those who worked for three days or less per week. They did not enjoy the same protection as the other employees. However, since the introduction of the BCEA of 1997, the concept of “casual labour” in this sense has fallen away.
Since 1997, anyone who works more than 24 hours a month is covered by the Basic Conditions of Employment Act. This specifies the basic rights of all employees such as working times, leave, remuneration, termination and more, as provided by the BCEA of 1997 (as amplified or varied by Sectoral Determinations or Bargaining Council agreements in certain industry sectors). There are, however, a few exceptions to this, the BCEA does not apply to the following:
- Members of the National Defence Force, the National Intelligence Agency, and the South African Secret Service,
- Unpaid voluntary employees who do work for a charitable organisation,
- Employees who work for an employer for less than 24 hours a month,
- Employees on vessels at sea where the Merchant Shipping Act of 1951 is applicable.
An individual who works for less than 24 hours per month can perhaps still be referred to as a “casual labourer” in a loose sense, but bear in mind that they remain fully-fledged employees for purposes of the protections of the Labour Relations Act, No. 66 of 1995 and Employment Equity Act, No. 55 Of 1998. An example of a “casual labourer” may be that of a person who you pick up on the side of the road and who does something for you on a ‘once-off’ basis. This can perhaps be someone who you might have asked to assist you on a specific day with a certain task (perhaps cleaning the pool for the upcoming summer). This can be someone that you do not necessarily ever see again and who is not required to report for work on a daily or weekly basis.
Employers who are affected in terms of past practices cannot afford to ignore this and should ensure that their employment policies and practices are in line with the applicable requirements.
Many employers seem to hold on to the previous sense of “casual workers” and leave themselves open to adverse awards if these individuals turn to the CCMA for assistance.
Article by: Marco Horak
Dispute Resolution Official – Upington
How does the BCEA affect contract and subcontractors?
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Since there are two main temporary contacts which can be used in an organization (time and project based) how does one appoint labourers to serve on a as-and-when basis, while satisfying labour law policies. For example, if a maintenance company receives an appointment letter to be available on an adhoc or emergency basis (eg for plumbing), how does one appoint a labourer on the same basis? If the company only receives jobs on a call-out basis, the company cannot afford to appoint a permanent worker or appoint a casual worker on a time-related contract, since one does not know how long the job will take to complete. Some months the workers will be busy for the entire month (when there is a lot of work) , whilst other months there is no work.
Firstly, the main pieces of employment legislation, chief among which are the Labour Relations Act 66 of 1995 (“LRA”) the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) and the Employment Equity Act 55 of 1998 (“EEA”), apply to employees and not independent contractors. The term “employee” is defined to mean 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 or conducting the business of an employer.
Independent contractors are thus specifically excluded from the application of the employment legislation in question.
I would therefore suggest that the employees rather be seen or be appointed as independent contractors. Furthermore, I would then suggest that the employee would submit an invoice upon completion of the project.
Secondly and in alternative to the aforementioned, I would suggest the Flexi Time Employment Contract that will allow an employer to offer the employees a more flexible working week. This system involves the employee working a set number of ‘core hours’ with the ability to vary the hours outside of this.
This type of contract allows employers to attract workers with interests outside work and can enable an employer to schedule work across longer proportions of the day, therefore extending customer service. It also provides employers with greater control over the hours worked by employees on other flexible schemes such as annualised hours and guarantees their presence at work for a certain number of hours every day.
Employees will benefit from being able to achieve a better work-life balance, the opportunity to avoid rush hour commutes and the ability to have greater control over when they work.
This contract provides Employees with all the rights they are entitled to by law and is up to date with the most recent changes in law.