The distinction between employees and independent contractors holds significant legal implications, especially concerning disputes and resolutions at the CCMA.
Section 73A of the BCEA provides that employees or workers earning below the threshold of R254 371.67 per annum (R21 197.63 per month) can refer disputes to the CCMA relating to employers' failure to pay any amounts owing to that employee in terms of the BCEA, the NMWA, a contract of employment, a sectoral determination, or a collective agreement. Employees or workers earning above the earnings threshold may refer their claims to the Labour Court, High Court, Magistrates' Court or Small Claims Court.
Under the NMWA, a “worker” is any individual who works for someone else and receives payment, whether in money or kind. This definition is broader than that of an “employee” and may sometimes include independent contractors under specific conditions. These workers (and employees who earn below the BCEA threshold) are entitled to be paid a wage that is no less than the national minimum wage and to a daily wage payment whereby if they work for less than four hours a day on any day, they must be paid for four hours work on that day.
It is important to know that independent contractors are individuals or entities another party engages to perform services under agreed terms, but they are not considered employees. An individual becomes an employee when one or more of the factors listed in Section 200A of the LRA applies.
Section 73A of the BCEA specifically addresses the rights and protections of any employee, but it is also extended to workers, which, in certain circumstances, include independent contractors. Therefore, this distinction between an employee, worker, and independent contractor is crucial as it determines the applicability of various laws and protections.
Considering the above, independent contractors can approach the CCMA in terms of Section 73A disputes under specific circumstances. This provision acknowledges that independent contractors may still require protection despite not being traditional employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.