Objection to bill’s exclusion of contractors
There is mounting fear that the national minimum wage legislation will exclude even more vulnerable workers than stipulated due to its design.
The proposed legislation defines a “worker” as an employee in accordance with the Basic Conditions of Employment Act, which does not cover “independent contractors” who perform “task-based work, piece work, homework, subcontracting and contract work”.
Wits University’s National Minimum Wage Initiative has objected to the exclusions in its submission to Parliament, arguing that applying the existing definition of “employee” posed a significant risk to workers who were in “danger of working long hours with the equivalent of low hourly wages”.
It noted that the move was contrary to international trends, existing agreements and recommendations of a panel of experts that researched the feasibility of minimum wage policy.
If implemented, the policy would fail to tackle changing trends in the workplace, with experts pointing to an increase in outsourcing by employers.
“It is possible that such an exclusion violates section 9(1) of the Constitution of the Republic of SA that notes: Everyone … has the right to equal protection and benefit of the law,” read the submission.
The Casual Workers Advisory Office said it was not shocked by the exclusion as SA’s labour market legislation and legal and institutional frameworks had always been exclusionary when dealing with casual, labour-brokered or parttime workers. The exclusion could encourage employers to continue shifting labour responsibility to labour brokers and other forms of temporary employment, the organisation’s spokesman, Ronald Wesso, said. Trends of more employers opting to outsource their labour had already been observed, he said.
“What the increase means is that employers are increasingly imposing flexible arrangements on workers, which means the number of hours that workers work are almost entirely up to the employer from week to week. The [national minimum wage] bill stipulates an hourly rate and gives the employer a chance to come at a whole lot less than the estimated R3,500 per month,” he said.
The National Minimum Wage Initiative’s Gilad Isaacs cited Uber drivers as an example, saying that although they were said to be independent contractors, case law had already been set internationally where courts ruled they had to be included.