FIXED-TERM CONTRACTORS MAY BE PERMANENT EMPLOYEES

The Labour Relations Amendment Act of 2014 was signed into law. It came into effect as of 1 January 2015 and employers had until 1 April 2015 to implement the changes. The amendments will have serious consequences for most employers.

The main amendments include:
– Organisational rights.
– Strikes.
– CCMA and labour court.
– Dismissals.
– Temporary employment contracts.
– Fixed-term employment contracts.

There are two areas that I would like to clarify. In recent discussions with clients, there seems to be some confusion around what is and what is not allowed. Non-compliance can be very onerous for employers.

Firstly, it is imperative to understand new legislation relating to temporary employment services (TES) also referred to as labour brokers. The new definitions in the Act state that any person or organisation offering work to another person and directly supervising that person is considered to be the employer. The important fact here is that the labour broker’s client is considered to be the employer and not the labour broker (or any third party for that matter).

Secondly, so often I have clients asking me to find a “stopgap” for three months “while we find the right person for the role”. This has always been against the law! An employer may not employ anyone on this basis, almost like bringing someone in on temporary probation. An employer may not employ anyone on a fixed-term contract or renew that contract for longer than three months unless the employer can justify the situation. The employee is then deemed to be permanently employed.

A fixed-term contract is acceptable if an employer is:

Replacing another employee temporarily absent from work (for example, maternity leave, hospitalisation, study leave).

Experiencing a temporary increase in the volume of work not expected to exceed 12 months (for example, a new road is being built).

Bringing on a graduate or intern who needs to gain work experience or to fulfil their obligations to obtain a qualification.

Employing a non-South African citizen who is only allowed to work for a defined period in terms of their work permit.

Employing a seasonal worker (for example, grape pickers on a wine farm).

Working with a third party, specifically funding a project for a limited period.

This information is not to be used in isolation and must be read in conjunction with labour legislation. It is simply to draw attention to the fact that certain practices that some employers have been adopting are illegal. An aggrieved employee could be awarded permanent employment and/or up to 12 months remuneration from the CCMA.

A final important point to note is that fixed-term contractors are to receive the same remuneration benefits as full-time employees.

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