Employment and Industrial Relations Law

Fighting Precarious Employment

23 Oct 2012

4 min read

The recent media blitz in respect of precarious employment brought about the introduction of Legal Notice 44 of 2012 entitled Employment Status National Standard Order. However, neither the Legal Notice nor any other local legislation provides for a definition of precarious work. Precarious work is not formally defined in any legislation, but is associated with atypical work, low paid work and illegal work practices.

The introduction of Legal Notice 44 of 2012, on the 31st January 2012 seeks to remove the grey areas between employment and self employment and sets a list of criteria against which a self employed person can be considered to be an employee. The regulations became effective on the 31st January 2012.

The Legal Notice states that “when considering the employment status of a person who is nominally self employed and is prima facie not considered as an employee, it shall be presumed that there is an employment relationship and that the person for whom the service is provided is the employer ….. if at least five of the following criteria are satisfied in relation to the person performing the work;

  1. he depends on one single person for whom the service is provided for at least 75% of his income over a period of one year;
  2. depends on the person for whom the service is provided to determine what work is to be done and where and how the assigned work is to be carried out;
  3. he performs the work using equipment, tools or materials provided by the person for whom the service is provided;
  4. he is subject to a working time schedule or minimum work periods established by the person for whom the service is provided;
  5. he cannot sub-contract his work to other individuals to substitute himself when carrying out work;
  6. he is integrated in the structure of the production process, the work organisation or the company’s or other organization’s hierarchy;
  7. the person’s activity is a core element in the organization and pursuit of the objectives of the person for whom the service is provided, and
  8. he carries out similar tasks to existing employees, or, in the case when work is outsourced, he performs tasks similar to those formerly undertaken by employees.”

If five of these criteria apply, the person is considered to be an employee and not self-employed.

Notwithstanding the above, any person who would be considered to be in an employment relationship in terms of the above may submit a written request to the Director responsible for Employment and Industrial Relations to exempt such a relationship from being considered to be an employment relationship and the Director may exempt in writing that relationship if it is considered that there are particular grounds relating to that activity to exempt it from this requirement.

Persons who are considered to be employees (in terms of this Legal Notice) will have an indefinite contract period from the date of the initial continuous provision of services and the date of employment shall be the date if the first contract unless there was a break of six months between successive contracts. The transition between self-employment and employment will not be automatically subject to a probation period and it shall be presumed, for all intents and purposes, that the probationary period has elapsed prior to the coming into force of the Legal Notice.

The hours of work and wages shall be considered to be similar to those of a comparable whole time employee in the same position. In the absence of a comparable employee, the same wages provided as part of the self employed conditions.

The regulations address the recent trend of a marked increase in part-time jobs, fixed term contracts of a short duration and self-employment. These work practices may be abused of by certain employers to keep employees from benefitting from benefits such as vacation leave and sick leave and may also hinder employees from improving their working conditions.