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