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Labour Relations Act, 1995 (Act No. 66 of 1995)

Code of Good Practice

Who is an Employee

Part 1

 

 

1. This Code of Good Practice is issued by NEDLAC in terms of section 200A (4), read with section 203, of the Labour Relations Act 66 of 1995 (LRA).

 

2. This Code sets out guidelines for determining whether persons are employees. Its purpose is —
(a) to promote clarity and certainty as to who is an employee for the purposes of the Labour Relations Act and other labour legislation;
(b) to set out the interpretive principles contained in the Constitution, labour legislation and binding international standards that apply to the interpretation of labour legislation, including the determination of who is an employee;
(c) to ensure that a proper distinction is maintained between employment relationships which are regulated by labour legislation and independent contracting;
(d) to ensure that employees - who are in an unequal bargaining position in relation to their employer - are protected through labour law and are not deprived of these protections by contracting arrangements;
(e) to assist persons applying and interpreting labour law to understand and interpret the variety of employment relationships present in the labour market including disguised employment, ambiguous employment relationships, atypical (or non-standard) employment and triangular employment relationships.

 

Application

 

3. In terms of section 203(3) and (4) of the LRA, any person interpreting or applying one 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 —
(a) Labour Relations Act 66 of 1995 (LRA);
(b) Basic Conditions of Employment Act 75 of 1997 (BCEA);
(c) Employment Equity Act 55 of 1998 (EEA); or
(d) Skills Development Act 97 of 1998 (SDA).

 

4. The Code should also be taken into account in determining whether persons are employees in terms of the Occupational Health and Safety Act 85 of 1993, the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and the Unemployment Insurance Act 63 of 2001. In applying these Acts, it must be borne in mind that the definitions of an employee in those statutes differ from that contained in the LRA. However, there are sufficient similarities for the Code to be of considerable assistance in determining who is covered by these statutes. These statutes are discussed further in Part 6 of the Code.

 

5. Part 1 of this Code deals with the application of the Code and issues of interpretation.

 

6. Part 2 of this Code deals with the rebuttable presumption as to who is an employee in terms of section 200A of the LRA and section 83A of the BCEA. Any person applying or interpreting those sections must take this Code into account.

 

7. Part 3 of this Code, deals with the interpretation of the definition of "employee" contained in the LRA, the BCEA, the EEA and the SDA.

 

8. Part 4 of the Code deals with determining the employment status of persons employed by temporary employment services.

 

9. Part 5 of the Code deals with the principles of interpretation that are applicable to interpreting the statutory presumptions of employment and the statutory definitions of an employee.

 

10. Part 6 deals with the extent to which the Code is of assistance in determining employment status for purposes of the Occupational Health and Safety Act 85 of 1993, the Compensation for Occupational Injuries and Diseases Act 130 of 1993 and the Unemployment Insurance Act 63 of 2001.

 

11. While every person applying or interpreting one of these statutes must take the Code into account, the Code is not a substitute for applying binding decisions of the courts. The Code therefore refers to many of the most important and helpful decisions of the courts on these issues. (A table of cases cited together with their references is attached to the Code).