How do you distinguish between a Temporary Employment Service (Labour Broker) and an Independent Contractor?

Temporary employment services (TES) are commonly referred to as labour brokers, in South Africa. TES are regulated mainly by the Labour Relations Act, No 66 of 1995 (LRA) and the Basic Conditions of Employment Act, No 75 of 1997 (BCEA).
There are 7 criteria that would form the basis for a rebuttable presumption as to whether an employment relationship exists. If any one of these criteria is met, the employees’ employer is a TES and not an Independent Contractor.
  1. The manner in which the person works is subject to the control or direction of the client;
  2. The person’s hours of work are subject to the control or direction of the client;
  3. In the case of a person who works for an organisation, the person forms part of that organisation;
  4. The person has worked for the client for an average of at least 40 hours per month over the last three months;
  5. The person is economically dependent on the client for whom he or she renders services;
  6. The person is provided with tools of trade or work equipment by the client; or
  7. The person only works for or renders services to one client.

How does payment work during public holidays if the employee would not have normally worked on that day?

An employer may not require an agri-worker to work on a public holiday, except in accordance with an agreement. If a public holiday falls on a day on which an agri-worker would ordinarily work, an employer must pay a worker who does not work on the public holiday at least the wage that the agri-worker would ordinarily have received for work on that day. A worker who does work on the public holiday must be paid at least double the daily wage; or if it is greater, the daily wage plus hours worked for that day.

If an agri-worker who works on a public holiday on which the worker would not normally work, the employer must pay that worker an amount equal to the worker’s daily wage; plus, the worker’s hourly wage for each hour worked on the public holiday.

In short, if an employee doesn’t normally work on a Saturday and that day is a public holiday, that employee should be paid a full day’s wage, plus the hours worked. i.e. If the employee agrees to work on Saturday which is a public holiday for 6 hours, the employee will be paid for one day (normal daily wage) plus the 6 hours worked.

Can an employer issue a fine to an employee if he/she damages work equipment?

Sectoral Determination 7(3) stipulates that an employer may not levy a fine against an agri-worker. The SIZA Social Standard is furthermore clear in its code requirement that no fines or mention thereof shall be permitted as a form of discipline. It is important to remember that deductions for the replacement or repair of lost or damaged goods does not constitute a fine.

However, if this is necessary, it is important that due process and procedural fairness is applied. This is especially important where the loss or damage of equipment is accompanied by a disciplinary process. Employers must be sure to deduct only for the replacement cost of the goods replaced and retain the invoice of the purchase or a copy thereof on file to demonstrate that the deduction was not a fine.

It is illegal to levy fines against agri-workers as a result of poor performance or any other issue which is or could be related to discipline in the workplace. All deductions must be accurately recorded and all disciplinary hearings as well their outcomes must also be on record.

Payroll SD13: The number of ordinary hours worked

Verifying hours using manual systems during audits has become an increasing concern for auditors. In many cases, auditees supply attendance registers that do not adequately indicate the actual time worked for a particular employee. This method also poses issues when trying to verify aspects such as piece work.

Although a grower cannot be forced to implement an electronic system to precisely monitor working hours digitally, if an auditor does not deem a record-keeping system adequate, because interviews indicated that employees work longer or shorter hours, the site will have to implement a more effective system to ensure records of working hours are adequate and traceable. The system that is implemented should at all times be satisfactory in showcasing the correct number of hours worked.

The system that is implemented can vary from business to business, however, if a manual system is utilised, it should be verifiable by the auditor on the day. In cases of piece work, the number of hours should still be reflected on the payslip. In all cases, the member will need to ask the payroll system to adjust the layout and information on the payslips if need be.