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INTERPRETATION OF THE DEFINITION OF AN EMPLOYEE IN LEGISLATION

Previously we interpreted the definition of an “Employee” as per the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA).


The BCEA defines an employee as –

“(a) any person, excluding an independent contractor, who works for another person or the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer.”


The LRA defines an employee as –

“(a) any person, excluding an independent contractor, who works for another person or the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on or conducting the business of an employer; and “employed” and “employment” have meaning corresponding to that of “employee”.


The Unemployment Insurance Act 63 of 2001 (UIA)

“any natural person who receives remuneration or to whom remuneration accrues in respect of services rendered or to be rendered by that person, but excludes any independent contractor”.


Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA)

”a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind, and includes –


(a) a casual employee employed for the purpose of the employer’s business;

(b) a director or member of a body corporate who has entered into a contract of service or of apprenticeship or learnership with the body corporate, in so far as he acts within the scope of his employment in terms of such contract;

(c) a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker;

(d) in the case of a deceased employee, his dependants, and in the case of an employee who is a person under disability, a curator acting on behalf of that employee;

(e) a domestic employee employed as such in a private household.


But does not include –

(i) a person, including a person in the employ of the State, performing military services or undergoing training referred to in the Defence Act, 1957 (Act 44 of 1957), and who is not a member of the Permanent Force of the South African Defence Force;

(ii) a member of the Permanent Force of South African Defence Force while on “service in defence of the Republic” as defined in section 1 of the Defence Act, 1957;

(iii) a member of the South African Police Force while employed in terms of section 7 of the Police Act, 1958 (Act 7 of 1958), on “service in defence of the Republic” as defined in section 1 of the Defence Act, 1957;

(iv) a person who contracts for the carrying out of work and himself engage other persons to perform such work.”


Occupational Health and Safety Act, 85 of 1993 (OHSA)

“any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person.”


The definition differs substantially from that in other labour legislation. A person is an employee and therefore covered by OHSA, if they –

(a) are employed by, or work for, an employer and are entitled to receive remuneration; or

(b) work under the direction or supervision of an employer or any other person.


Nevertheless, a person applying or interpreting the definition under the OHSA must take into account when determining whether a person is “employed by or works for an employer” or whether they “work under the direction or supervision of an employer”.


Unlike the position under the LRA and BCEA, a temporary employment service (TES) is not the employer for the purpose of compliance with the OHSA. The definition of an employer in the OHSA provides that a labour broker as defined in the LRA is not the employer of employees that it provides to a client. This provision must bow be read as excluding temporary employment services (as contemplated under the LRA and BCEA) from being the employer for the purpose of the OHSA. Accordingly, the client to whom a worker is supplied by a TES must meet the obligation of an employer under the OHSA.



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