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

Code of Good Practice

Who is an Employee

Part 6 : Interpretation of the Definition of an Employee in other Legislation Administered by the Minister of Labour

 

 

Unemployment Insurance Act 63 of 2001

 

68. For the purposes of the Unemployment Insurance Act 63 of 2001, (UIA) an employee is—

“any natural person who receives remuneration or to whom remuneration accrues in respect of services rendered or to be rendered by that person, but excludes any independent contractor”;

 

Persons applying or interpreting the UIA should take Parts 2 and 3 of this Code into account when deciding whether a person is an independent contractor and therefore excluded from the ambit of the Act.

 

Compensation for Occupational Injuries and Diseases Act 130 of 1993

 

69. For the purposes of the Compensation for Occupational Injuries and Diseases Act an employee is—

"a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind, and includes —

(a) a casual employee employed for the purpose of the employer's business;
(b) a director or member of a body corporate who has entered into a contract of service or of apprenticeship or learnership with the body corporate, in so far as he acts within the scope of his employment in terms of such contract;
(c) a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker;
(d) in the case of a deceased employee, his dependants, and in the case of an employee who is a person under disability, a curator acting on behalf of that employee;

but does not include—

(i) a person, including a person in the employ of the State, performing military service or undergoing training referred to in the Defence Act, 1957 (Act 44 of 1957), and who is not a member of the Permanent Force of the South African Defence Force;
(ii) a member of the Permanent Force of the South African Defence Force while on 'service in defence of the Republic' as defined in section 1 of the Defence Act, 1957
(iii) a member of the South African Police Force while employed in terms of section 7 of the Police Act, 1958 (Act 7 of 1958), on 'service in defence of the Republic' as defined in section 1 of the Defence Act, 1957;
(iv) a person who contracts for the carrying out of work and himself engages other persons to perform such work;
(v) a domestic employee employed as such in a private household;"

 

70. The central issue that will be raised when interpreting this definition is whether a person is employed in terms of a contract of service and has not been specifically excluded in terms of the definition. Again, persons interpreting and applying this definition should take Parts 2 and 3 of this Code into account.

 

Occupational Health and Safety Act, 85 of 1993

 

71. For the purposes of the Occupational Health and Safety Act 85 of 1993 (OHSA), an employee is—

"any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person”;

 

The definition differs substantially from that in other labour legislation. A person is an employee and therefore covered by OHSA, if they—

(a) are employed by, or work for, an employer and are entitled to receive remuneration; or
(b) work under the direction or supervision of an employer or any other person.

 

Nevertheless, a person applying or interpreting the definition should take Parts 2 and 3 of this Code into account when determining whether a person is "employed by or works for an employer" or whether they "work under the direction or supervision of an employer''.

 

72. Unlike the position under the LRA and BCEA, a temporary employment service is not the employer for the purposes of compliance with OHSA. The definition of an employer in OHSA provides that a labour broker as defined in the LRA is not the employer of employees that it provides to a client. This provision must now be read as excluding temporary employment service (as contemplated under the LRA and BCEA) from being the employer for the purposes of OHSA.36 Accordingly, the client to whom a worker is supplied by a temporary employment services must meet the obligation of an employer under OHSA.

 

36 Section 12(1) of the Interpretation Act 33 of 1957