The National Union of Metalworkers of South Africa in KZN has won a landmark victory for its members in the Commission for Conciliation, Mediation and Arbitration (CCMA). What is particularly unusual about the case is that the employer in question is none other than the CCMA itself!
24 interpreters applied to be recognised as ‘employees’ of the CCMA, as defined under Section 213 of the Labour Relations Act (LRA). The CCMA however argued that they were ‘independent contractors’. The number of applicants was reduced to five, but the issue was one of principle, with implications for all workers in the CCMA and beyond.
The applicants are engaged by the CCMA as part-time ‘independent contractors’ on ‘fixed-term’ contracts. They declared a dispute, challenged their contracts and claimed that they ought to be deemed as ‘employed’ indefinitely in terms of Section 198B of the LRA.
The Commissioner hearing the case, Naledi Bisiwe, ruled that the five applicants were indeed ‘employees’ as defined in the LRA and that therefore the fixed-term contracts should be ‘employment contracts’ and of ‘indefinite duration’.
She ordered that those members’ contracts which stated otherwise be converted to ‘employment’ contracts as from 1 April 2016, three months after the Labour Relations Amendment Act 2014 became effective, which limited the employment of workers’ on a temporary basis to three  months, unless there are specific reasons as defined in the LRA.
This case should set an important precedent for all workers who are unlawfully engaged as independent contractors when they are in fact ‘employed’ in terms of the LRA, Section 200A of which states that:
(1) Until the contrary is proved, a person, who works for or renders services to any other person, is presumed, regardless of the form of the contract, to be an employee, if any one or more of the following factors are present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c)  in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the last three months;
(e) the person is economically dependent on the other person for whom he or she works or renders services;
(f)   the person is provided with tools of trade or work equipment by the other person; or
(g) the person only works for or renders services to one person.
As the Commissioner in this case made clear, “I have more than sufficiently discharged the presumption to prove that they are employees as defined in Section 200A of the LRA.
The duty is then on the Respondent (employers) to prove the contrary. [But] the gist of the Respondent’s evidence is that the applicants are independent contractors just because their contracts say so [her emphasis].
Section 198B(3) of the LRA lays down that a fixed-term contract (newly concluded or renewed) for longer than 3 months will be deemed to become permanent employment, unless the employer can satisfactorily prove that the nature of the work for which the employee is employed, is of a limited or definite duration or that there is another justifiable reason for the temporary appointment, such as if the employee:
(a)    is replacing another employee who is temporarily absent from work;
(b)   is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months;
(c)    is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession;
(d)   is employed to work exclusively on a specific project that has a limited or defined duration;
(e)   is a non-citizen who has been granted a work permit for a defined period;
(f)     is employed to perform seasonal work;
(g)    is employed for the purpose of an official public works scheme or similar public job creation scheme;
(h)   is employed in a position which is funded by an external source for a limited period; or
(i)     has reached the normal or agreed retirement age applicable in the employer’s business.
The Commissioner ruled that in this case “The Respondent’s argument that it had justifiable reason to fix the Applicant’s contracts after 1 April 2016 is without foundation as it was not based on any evidence led. To the contrary, its witnesses could not prove a reason for the fixing of the contracts terms.”
She added that “its witnesses could not explain why or how its contractual arrangements and practices require the Applicants to adhere to specified and controlled working hours, to carry out administrative duties other than interpreting work and why it subjected the applicants to being ‘spoken to’ if they were regarded as being out of line, with punitive consequences meted out for such conduct.”
The Commissioner also ordered the CCMA to schedule the matter of the terms and conditions applicable to the applicants’ contracts as amended by the ruling, specifically to back-pay, and to submit proposals on this before the end of June 2016.
Numsa demands the CCMA immediately complies with the Commissioner’s ruling and uses this it as a precedent for future cases brought against other employers who are unlawfully contravening the LRA in the way they have been doing themselves.
Patrick Craven
Numsa Acting Spokesperson
061 636 6057