The question of who falls within the ambit of an “employee” for purposes of the Labour Relations Act (LRA) is dealt with in many disputes referred to the CCMA or Bargaining Councils under a broad scope. This generally causes confusion, and most parties raise it as a jurisdictional point before the actual dispute is entertained. This article will explain what a request for an advisory award is and the process in which parties can proceed to obtain one.

In this instance, where parties are uncertain whether there is an existing employment relationship, either party may complete the CCMA Referral form 7.21 as per the website to request the CCMA to issue an advisory award on whether the person is an employee. This can be done by any party to a working arrangement if the person earns R224 080.48 per annum or less (the current threshold as published by the Minister of Employment and Labour). The CCMA will set down the matter as a Section 200A(3) dispute where parties will attend the hearing before the appointed Commissioner and argue their respective cases, whereafter the Commissioner will decide on the matter by way of an advisory award.

The Labour Relations Act (Section 200A) and the BCEA (Section 83A) were amended in 2002. These amendments introduced a rebuttable presumption as to whether a person is an employee and therefore covered by the act. The earnings threshold will determine if an employee is covered by the BCEA and/or LRA and further still provides seven (7) requirements in terms of Section 200A(1) to ascertain the kind of employment relationship of an employee or an independent contractor. However, in some cases, parties involved are still not satisfied and understand the working relationship that exists and prefer an advisory award to be issued directing the way forward. This is when Section 200A(3) particularly becomes relevant and the topic discussed in this article. The outcome of an advisory award is more purposeful than parties merely arguing their case and being slapped with an adverse award; this is different as the advisory award is meant to enlighten, advise and provide clarity or interpretation of the issue by a labour expert.

An advisory award, which is not binding on the parties, indicates the likely outcome of a subsequent arbitration or adjudication (if applicable) or a likely way strike action may be avoided as an example (if applicable).

In conclusion, once the advisory award is received, the parties have seven (7) days to accept or reject the award (this period can be extended by a maximum of five (5) days). Should a party to a dispute fail to accept or reject the award within that period, the party is deemed to have accepted the award. The award will, therefore, only be binding on a party if that party accepts the award or is deemed to have accepted the award.

It is essential that parties ensure they have positive prospects of success before referring a dispute.

Article By: Natasha Govender
Dispute Resolution Official / Collective Bargaining Co-ordinator  – CEO Pretoria