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Who is an Employee? The question addressed


This question still floated around on a daily basis. It is a fact that there are many employers - probably hundreds or even more - who hold to the notion that " he is a contractor - therefore he does not get annual leave for sick leave any other benefits." It is a fact that they are many employers - and I repeat, probably hundreds or even more - who employ people on a contract headed " Independent Contractor Contract of Employment," stating that " he is an independent contractor and therefore does not qualify for annual leave sick leave or any other benefits in the BCEA."

 

I have said it before - and I say it again - that such employers are merely using this as an excuse to escape their obligations in terms of labour legislation, and in many cases to avoid having to provide that employee with other benefits such as pension and medical aid, which he does give to his " permanent" employees. Just as a matter of interest - an independent contractor cannot possibly be an employee. And an employee cannot possibly be an independent contractor. However - we now have some finality, we now have some answers, we now have legislated guidance, and I sincerely hope that what follows is going to put unscrupulous employers in their place, and will enable employees to be fairly treated. 

                                    

The Code of Good Practice - Who Is an Employee? has been published.

 

It is a 53 page document, which addresses this question in great detail. We will be dealing with this Code of Good Practice over the next few weeks. The code commences by setting out various guidelines, the main intention being to " promote clarity and certainty as to who is an employee for the purposes of the Labour Relations Act and other labour legislation." Another purpose of the code is to " ensure that a proper distinction is maintained between the employment relationship which is regulated by labour legislation, and independent contracting."

 

The preceding paragraph spells out quite clearly that an employment relationship and an independent contractor are as far apart as the sun is from the earth. A further purpose is " to ensure that employees - who are in an unequal bargaining position in relation to the employer – are protected through labour law and are not deprived of those protections by contracting arrangements."  This indicates strongly that the legislature is aware that there are unscrupulous employers out there, who hide the true nature of the employment relationship in the disguise of a cleverly worded contract - thus depriving the employee of his legal right to fair treatment.

 

The code further any knowledges that there does exist " a variety of employment relationships in the labour market, including disguised employment, ambiguous employment relationships, non-standard employment,and triangular employment relationships." Thus it is no secret, and those employers to whom such things apply will know who they are, and that they should know that their days are numbered. If the cap fits – wear it!

 

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 ( LRA) ; 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).  It is stated further that the code should (must??) also be taken into account in determining whether persons are employees in terms of the Occupational Health and Safety Act 85 of 1993 (OHSA); the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and the Unemployment Insurance Act 63 of 2001 (UIFA).

 

It is pointed out that the definitions of an employee in the OHSA, COIDA and UIFA differ from the definitions contained in the LRA. However, the code points out that there are sufficient similarities for this code to be of considerable assistance in determining who is an employee in terms of the OHSA and COIDA. The above is essentially what is covered in part 1 of the code. Next week, we will deal with part 2 of the code, which addresses the question of the presumption as to who is an employee, in terms of section 200A of the LRA and in terms of section 83A of the BCEA.

 

If you would like us to mail you a copy of the Code, please send us an e-mail on [email protected] with the subject line "Code Employee" and we will gladly forward it to you. 

 

Any person applying or even interpreting those sections must take this code into account.

 

For more information contact [email protected]

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

The OHS Act and the Responsibilities of Management

30 September 2021 (08:30 – 16:00)

Interactive Online Course

Employment Equity Committee Training

30 September 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

01 October 2021 (09:00 - 16:00) (Fully Booked)

Interactive Online Course

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

01 October 2021 (08:30 - 16:00) (Fully Booked)

Interactive Online Course

15 October 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

07 October 2021 (09:00 - 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

08 October 2021 (09:00 - 12:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

15 October 2021 (09:00 - 12:00)

Interactive Online Course

Workshop Chairing Disciplinary Hearings

21 & 22 October 2021 (09:00 - 16:00)

Interactive Online Course

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

 

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