What constitutes a “casual worker”?
South African labour legislations do not refer to and/or define the concept of a “casual worker”. That being said, the previous Basic Conditions of Employment Act (“BCEA”) of 1983 (now repealed) referred to casual workers or labourers as those persons who worked for three days or less per week. These “casual workers” did not enjoy the same protection as other employees.
However, since the introduction of the new BCEA of 1997, the concept of “casual worker” has, in a sense, fallen away.
Any person who is employed for 24 or more hours per month is regarded as an “employee” for the purposes of the BCEA. All protections offered by the BCEA, regarding working time, leave, etc. will be applicable to these employees.
Any person who works for less than 24 hours per month, will not be regarded as an “employee” for the purposes of the BCEA and will not enjoy the protections offered by the BCEA. Such “employees” can perhaps still be referred to as a “casual workers”.
Although these “casual workers” will not be regarded as “employees” for the purposes of the BCEA, they will be regarded as employees for purposes of, and will enjoy the protections of the Labour Relations Act 66 of 1995 (“LRA”).
Will “casual workers” be deemed TO BE employees?
An employee, even a casual worker, claiming to be an employee, must demonstrate the following:
that they work for or render services to a person or entity who they regard to be their employer; and
any one of the listed factors, in terms of Section 200A of the LRA and/or Section 83A of the BCEA, is present.
Section 200A of the LRA, reads as follows:
“200A. Presumption as to who is employee
(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”
In terms of Section 83A of the BCEA, a person who works for, or provides services to, another person is presumed to be an employee if –
- his or her manner or hours of work are subject to control or direction;
- he or she forms part of the employer’s organisation;
- he or she has worked for the other person for at least 40 hours per month over the previous three months;
- he or she is economically dependant on the other person;
- he or she is provided with his or her tools or work equipment; or
- he or she only works for, or renders service to, one person.
If one of these factors is present, the person is presumed to be an employee until the employer proves that he or she is not.
In terms of both the BCEA and the LRA, there is a presumption that “casual workers” are employees.
4.4 To this end, in terms of both the BCEA and the LRA, there is a presumption that “casual workers” are employees.
In this “Workers Day” issue:
- What constitutes a “casual worker”;
- Will “casual workers” be deemed to be employees?
- Is the Basic Conditions of Employment Act 75 of 1997 applicable to “casual workers?
- Is the Labour Relations Act 66 of 1995 applicable to “casual workers”?
2.4 Is the Labour Relations Act 66 of 1995 (hereinafter “LRA”) applicable to “casual worker”?
Is the BCEA APPLICABLE to “casual workers”?
Although in terms of Section 83A of the BCEA, it appears that “casual workers” will be presumed to be employees, it is important to take note of the following sections:
- Section 6 of Chapter 2, Regulation of working time;
- Section 19 of Chapter 3, Leave;
- Section 28 of Chapter 4 Particulars of employment and remuneration; and
- Section 36 of Chapter 5, Termination of employment
All of the above sections, stipulate that the applicable chapters do not apply to employees who work less than 24 hours a month for an employer.
Thus, the above mentioned sections of the BCEA will only be applicable to “casual workers” if such workers work for more than 24 hours per month.
In the event of a “casual worker” working more than 24 hours per month, the employer will have to adhere to all sections the BCEA relating to working time, leave, remuneration and termination of employment, etc.
The other sections of the BCEA, not specifically excluded from application to “casual workers” will still be applicable as these workers are presumed to be employees.
IS THE LRA APPLICABLE TO “CAUSAL WORKERS”
The LRA is applicable to all employees (including “casual workers”) and only makes exclusion from application of the Act for the following:
The LRA does not apply to members of-
(a) the National Defence Force;
(b) the National Intelligence Agency; and
(c) the South African Secret Service.
To this end, all provisions of the LRA, including Schedule 8: Code of Good Practice, will be applicable to “casual workers”.
The LRA not only protects employees against unfair dismissals and unfair labour practices, but also prescribes requirements to ensure that any disciplinary action take against employees is regarded as substantively and procedurally fair.