Invictus Group

Rights of Casual Workers in South Africa

19 December 2024

It is common practice for employers to make use of casual workers as a means of complementing their current staff base or to ensure that they remain flexible in their operations. However, problems may arise when the employer fails to monitor the working hours of the casual workers and may be unaware of the rights that these workers may have in the workplace. This newsletter aims to provide an overview of casual labour in South Africa and the rights that casual workers have in the workplace. A casual worker is a person who works less than 24 hours per month. If a casual worker works more than the 24-hour allowable, they are deemed as employees and are afforded the same proportional rights as permanent staff members.

BCEA & UIF:

After the amendments of the Basic Conditions of Employment Act in 1997, the definition of “casual worker” fell away and the new BCEA does not make explicit provision for casual workers. The updated premise of causal workers is a worker who works less than 24 hours per month, who is then excluded from core protections found within the BCEA. Such protections include, but are not limited to, contracts of employment, hours of work, overtime pay, as well as annual and sick leave.

Casual workers do not receive a specific grade of pay. However, such workers must be paid in line with the various sectors within the Minimum Wage Act. If a worker works for more than 24 hours per month, legislation stipulates that they must contribute to UIF.

WHEN ARE CASUAL WORKERS DEEMED PERMANENT:

Section 200A of the LRA read with section 83A of the BCEA states as follows:

“(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:

  • the manner in which the person works is subject to the control or direction of another person;
  • the person’s hours of work are subject to the control or direction of another person;
  • in the case of a person who works for an organisation, the person forms part of that organisation;
  • the person has worked out for that person for an average of at least 40 hours per month over the last three months;
  • the person is economically dependent on the other person for whom he or she works or renders services;
  • the person is provided with tools of trade or work equipment by the other person; or
  • the person only works for or renders services to one person“.

Attention is specifically directed toward point (iv) which states that - if a person has worked at least 40 hours per month, on average over the past 3 months, then said person will be deemed a permanent employee and is afforded protection under the BCEA pertaining to provisions such as working hours, overtime and leave as mentioned above.

CASE STUDY:

In the case of Hlanzeka Cleaning Company (Pty) Ltd v Ngwane NO and Others (D615/08) [2011] ZALCD 26 (29 June 2011), employees would usually wait at the gate of the company to be allocated duties for the day. The employees’ working hours would differ substantially from the one week to the next, as they would sometimes work one day per week, and other times a full week with overtime payment. At one stage, the employees were informed that they would no longer be employed or given duties at the company’s gate and were to register with a labour broking company named Adecco, and their duties would be allocated by Adecco. After the employees had struggled to register with Adecco, their services were terminated, and they referred an unfair dismissal dispute to the CCMA.

At the CCMA, the company argued that the employees were casual labour and only worked when their services were required. The employer submitted that the employees simply had to register with Adecco, whereafter the company would consider employing them on an ad hoc basis. After the matter remained unresolved, it was referred to the Labour Court.

The Labour Court considered the evidence and arguments tendered before it and concluded that the employees had the right to be considered for employment as and when the need therefore arose, as it had become an established practice for them to wait at the company’s gate to be called and allocated duties. The Labour Court also found that the company could not unilaterally change the terms of the employment relationship as to avoid any obligations that may have arisen towards the employees.

If the applicant had wanted to restructure its operations and integrate casual workers, and it was entitled to do so, provided that consultation took place with all employees, regardless of whether they were permanent or casual employees. Even though the employees’ needs were met for a substantial period through their assignment of duties at the gate, the company’s insistence that they register with Adecco before their services could be utilized again to avoid any permanent commitment towards the employees was found to be unfair, as it amounted to dismissal of the employees without consultation or fair consideration.

CONCLUSION:

Employers are encouraged to properly track and document the hours worked by their casual workers, as their failure to do so would mean that the workers may be deemed to be permanent employees and would therefore be eligible for full protection in terms of the BCEA. By failing to ensure measures are in place, an employer can find themselves disbursing unnecessary costs such as adverse awards at the CCMA or Labour Court.

Contact Invictus for tailored guidance and assistance on employment contracts. Reach out to our office at 086 173 7263 or email us at admin@invictusgroup.co.za. Let us help you ensure your business remains compliant and well-informed.

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