Core Legislation Flashcards
What is a contract of employment?
It is usually entered between one person (an employer) and another who is to work for the employer (an employee) under the employer’s supervision and for remuneration.
The contract of employment serves as the foundation of every employment relationship.
The BCEA and LRA govern major aspects of employment relationships in SA.
What must the contract comply with?
The parties must have contractual capacity.
Performance of the contract must be possible (i.e., if a person professes to be a welder, he should be able to weld according to a certain acceptable standard).
The contract may not be contra bonos mores (against public moral values).
The contract must comply with any formalities which may be prescribed (e.g., all apprenticeship contracts must be in writing).
The parties must intend to be bound by the contract and reach consensus on the essential terms of the contract (e.g., salary, working hours, etc.)
What factors can an employer use to prove someone is a independent contractor or employee?
How a person works is subject to the control/direction of another person
A person’s hours of work are subject to the control/direction of another person
If the person works for an organisation, he or she forms part of that organisation
The person has worked an average of 40 hours/month over three months
A person is economically dependent upon the person for whom he or she works
A person is provided with tools/equipment by the other person
A person works/renders a service to only one person
What are contents that are needed in an employment contract?
Job description
Remuneration (basic salary, overtime, and bonuses)
Working time per day and per week
Leave in terms of annual leave, sick leave, maternity leave, paternity leave, family responsibility leave, study leave, etc.
Benefits, such as pension or retirement fund, medical aid, housing, etc.
Protection of the company’s interests (confidentiality and restriction of trade)
The period of the contract (see the different types of contracts below), retirement age and period of notice
Requirements for closed-shop agreements or agency shop agreements (discussion on this follow later)
Occupational health and safety regulations
Disciplinary rules
Any relevant procedural or substantive agreement between employer and trade union
Who is an employee?
Any person, excluding an independent contractor, who works for another person or for the State, and who receives, or is entitled to receive, any remuneration
Any other person who in any manner assists in carrying on or conducting the business of an employer
How is a independent contractor characterised?
Independent Contractors provide a service and are hence paid to render that particular service. An Independent Contractor is not subject to the control or direction of the organization or company or person, which would be called his, her or its client. Essentially, the Independent Contractor is doing the work as part of his or her or its own business. On the contrary, Employees enter into a contract of employment with an Employer which creates an employment relationship and not a service provider relationship.
An independent contractor can therefore be characterised by:
-The manner of the person’s work is not directed or controlled by another.
-The person’s work hours is not directed or controlled by another.
-The person does not form part of the organisation.
-The person works less than 40 per month for the other.
-The person is financially/economically independent.
-Does not get provided with the necessary tools or equipment to perform his/her duty.
