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Darcy du Toit’s Weekly Comment in IR Network published by LexisNexis [subscription required]
Thinking out of the employment box
Excerpts
“But the issue had a history. The Labour Appeal Court noted that the Co-operatives Amendment Act of 2013 set out to replace the provision that cooperative members are “not employees” with the following provision:
“An employee of a worker co-operative is any member or non-member of a co-operative who satisfies the definition of ‘employee’ as defined in the Labour Relations Act, 1995”.
However, although signed by the President, the Amendment Act was not promulgated and is therefore not (yet) in force. Whether it would have done much to clarify the status of cooperative members is debatable. As it is, the Labour Appeal Court has effectively settled the question on the basis of the existing provision. The LRA, amplified by case law, defines the meaning of “employment” in great detail. Where the relationship between a cooperative and its members is shown to be one of (disguised) employment as opposed to the democratic relationship contemplated by COA, the LRA will apply.
. . . .
“Platform work” is a good example of this. Workers perform services on behalf of digital companies, subject to many forms of control via online platforms which are designed to allow workers and clients to enter into transactions on terms laid down by the platform owners. But, invariably, workers must agree to be classified as “independent contractors”.
As long as “employment” remains the only basis for legal protection available to workers, this creates a lawyer’s nightmare and a litigator’s paradise. There is limitless scope for arguing factors pointing at employment versus those pointing at independent contracting that will vary from case to case, often finely balanced. This is hardly a satisfactory basis for determining the rights (or lack of rights) of a growing section of the workforce.
In one sense, this is not new. Institutions such as partnership are as old as Roman law if not older, with no suggestion that junior partners are employed by senior partners who control the partnership. In practice, however, there may be great inequality and junior partners may be subject to control not unlike that exerted over employees. The question of their right to fair labour practice has not yet come before the courts in South Africa (unlike the USA), perhaps because of the exclusive nature of the services traditionally performed by partnerships.
But, in a changing work environment, it is a question waiting to be asked. Organisations such as Uber involve the many, not just the professional few, and they are growing.
. . . . .