ABR 410 Semester TEST Notes 2021 PDF

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ABR 410 Notes Use at own riskABR 410 SEMESTERTEST NOTES####### AUTHOR: CHARLENE FERNSABR 410 Notes Use at own riskTHESE NOTES CONTAIN THE FOLLOWING:####### • STUDY THEMES 3-8 FROM STUDY GUIDE####### • CHAPTERS 4-14 OF THE ABR TEXTBOOK####### • RELEVANT CASE LAW COVERED IN THE STUDY GUIDE####### • RE...

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Charlene Ferns ABR 410 Notes

Use at own risk

ABR 410 SEMESTER TEST NOTES

AUTHOR: CHARLENE FERNS

These notes may not be distributed without the authors permission.

Charlene Ferns ABR 410 Notes

Use at own risk

THESE NOTES CONTAIN THE FOLLOWING: •

STUDY THEMES 3-8 FROM STUDY GUIDE

•

CHAPTERS 4-14 OF THE ABR TEXTBOOK

•

RELEVANT CASE LAW COVERED IN THE STUDY GUIDE

•

RELEVANT READING MATERIAL AS PER THE STUDY GUIDE

•

QUESTIONS AND ANSWERS FROM CLASS SLIDE QUESTIONS POSTED ON CLICKUP

DISCLAIMER: THESE NOTES MAY NOT BE DISTRIBUED WITHOUT THE AUTHORS PERMISSION. YOU USE THESE NOTES AT YOUR OWN RISK. IF THERE IS SOMETHING YOU DO NOT UNDERSTAND I STONGLY ADVISE THAT YOU CONSULT THE TEXTBOOK AND RELEVANT CLICKUP SLIDES. PLEASE READ THROUGH AND UNDERSTAND THE WORK BEFORE WRITING THE SEMESTER TEST AS MANY TOPICS IN LATER THEMES OVERLAP BUT SOMEHOW DIFFER FROM ONE ANOTHER. ALL QUESTIONS FROM THE CLASS SLIDES HAVE BEEN ANSWERED TO BEST OF OUR ABILITIES, BUT WE CLAIM NO RESPONSIBILITY

IF

ANSWERS

ARE

INCORRECT

(PLEASE

DO

THE

QUESTIONS YOURSLEF AND COMPARE). SPECIAL THANKS TO ERINÉ LIEBEL AND KRISTEN DE WET FOR THEIR CONTRIBUTIONS TO STUDY THEME 7 AND 8

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Charlene Ferns ABR 410 Notes

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Study Theme 3 ABR Notes: Identifying the Exclusive Employee •

The protection extended by labour statutes traditionally applies only to persons who are identified as employees

•

In today’s modern times the traditional definition of employee has become contested o New forms of work and workers have emerged, such as the e-lancer, the zero hour contract worker, who participate in the platform economy o Such workers are based either at home or travel daily

The Definition of an Employee: •

Section 213 of the LRA defines an employee as a person who works for another person or state and receives/entitled to remuneration. o Also includes a person who assists in carrying on or conducting business of employer.

•

Colonial mutual life assurance society v Macdonald o Court had to consider whether an insurance broker qualified as an employee in terms of the LRA. o Court held that the contract between a master and a servant is one of letting and hiring of services, whereas the contract between a principal and a contractor is one of letting and hiring of work.

•

Smit v workmen’s compensation commission o Court summarized 6 common law factors it considered to indicate the difference between a contract of employment v independent contracting §

Employment: •

Object of contract is to render services

•

Employee must perform services personally

•

Employer must choose when to make use of the services of the employee

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Charlene Ferns ABR 410 Notes

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Employee obliged to carry out instructions and commands of employer

§

•

Contract terminates when employee dies

•

Contract terminates when period of service expires

Independent Contracting: •

Object of the contract is the performance of specified work/ achievement of a specified result

•

Contractor must perform work through others

•

Contractor must perform work within the fixed period contemplated in the contract

•

Contractor is subservient to the contract but does not render services under supervision or control of employer

•

Contract does not necessarily terminate upon death of contractor

•

Contract terminates upon completion of work/ production of specified result.

o SITA case §

Court confirmed focus has shifted from the formal contract of employment to the existence of an employment relationship

§

Court identified the following primary criteria for the existence of an employment relationship: •

An employer’s right to supervision and control

•

Does the employee form an integral part of the organization?

•

To what extent is the employee economically dependent on the employer?

Presumption of Employment: •

If any person brings proceedings in terms of the LRA or BCEA in which they allege that they are an employee, they will be presumed to be an employee if they render services to another person +if any of the factors are present in the relationship.

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o Factors: §

Manner in which a person’s work is controlled/directed by another person

§

Person’s hours of work are subject to the control/direction of another

§

Where a person works for an organization, they form an integral part of such organization

§

If a person has worked for another person for an average of at least 40 hours per month for the last 3 months

§

If the person is economically dependent on the other person for whom they work/ render services to.

§

Person is provided with the tools of trade/ work equipment by the other person

§ •

Person works/ renders services to one person.

This presumption only applies to people who earn below the threshold amount R205 433,30 o Even in cases where a person earns above the threshold amount, the listed factors can still be used as a guide for the purpose of determining whether a person is in reality in an employment relationship or is self-employed.

•

This presumption does not alter the statutory definition of an employee o It merely serves as an evidentiary device that is calculated to shift the onus of proof of employment from the person alleging, they are an employee to the employer to disprove the employment relationship.

3 main categories of employees that require protection in terms of labor relations: o Temporary employment services (labor brokers) o Fixed term employees o Part time employees

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TEMPORARY EMPLOYMENT SERVICES o Section 198 LRA provides that any person who for reward, procures for or provides to a client other person who §

Performs work for client

§

Are remunerated by temporary employment service •

Is a TES employee and deserves protection in terms of the LRA? o What protection is offered by LRA? §

Temporary services if: § Period of service does not exceed 3 months § Work rendered is for an employee who is temporarily absent § Work is in a category or for a period of time deemed to be TS by bargaining council agreement or sectoral determination

Employee

who earns below

threshold

amount in terms of BCEA and who is not engaged in temporary services is deemed to be an employee of the client •

Therefor

should

a

low

earning

employee be placed with a client for more than 3 months OR if they are no longer substituting for an employee of a client who is temporarily absent= worker is considered employee of client

Case law to remember: §

Assigned services v CCMA

Labor court decision: o Held that the deeming provision does not have an effect that the client of TES becomes the sole employer o Common law contract of employment stays in place between TES and agency worker (nothing in provision invalidates provision) Labor court o Court held that if properly interpreted section 198A(3)(b)(i) seeks to ensure employees by TES are treated no differently to those of the client +ensure that the deemed employees are fully integrated into the enterprise as employees of the client

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o Therefor once the placed employee is deemed to be the employee of the client, the client is the employer of that employee for all purposes and there is no residual employment relationship with the TES

FIXED TERM EMPLOYEES: o Section 198B (1) of LRA defines a fixed term contract as a contract of employment that terminates on o The occurrence of a specified event o The completion of a specialized task or project o A fixed date other than that of employee agreed retirement age o Problem with this section: o Excludes several categories of people §

Employees who earn above threshold amount of 205 433.30

§

Employer with less than 10 employees

§

Employer with between 10-50 employees who has been operating for less than 2 years

§

Employees with fixed term contract as permitted by statute/ collective agreement/ sectoral termination

o How does LRA aim to protect employees of fixed term contracts: §

Employer may not conclude a fixed term contract for period longer than 3 months unless the employer can give a justifiable reason for extension of 3-month period •

Justifiable reasons: o Replacing someone temporarily absent o Employer has high volume of work which will continue for no longer than 12 months o Employee is a student receiving training or gaining experience o Employee employed exclusively for a project that has specific duration o Employee doing seasonal work

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Use at own risk o Employee salary funded by external source for limited duration o Employee part of official public work project/ job creation scheme o Employee reached normal retirement age

o What happens if 3-month period exceeded without justification? §

Employee deemed to have indefinite employment and such contract of employment can only be terminated on recognized grounds

PART TIME EMPLOYEES o Section 198 C of LRA provides that part time employee is someone who is remunerated wholly or partly for reference to the time that the employee works and who works less than comparable full-time employee o Part time employees exempt if: §

Employee earns more than threshold amount

§

Employee of employer with less than 10 employees

§

Employer has between 1—50 employees and business has not operated for more than 2 years

§

Employees who work less than 24 hours a particular month

§

Employee rendering services during first 3 months of continuous employment.

UNAUTHORISED AND ILLEGAL WORK o Does labor legislation apply if there is a legally valid and enforceable contract of employment, or do labor rights extend beyond the construction of the contract? o Remember the law will not enforce a contract that is against public interest o Unlawful contractual terms may render contract void ab initio §

Prostitution and employment of illegal immigrants

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o Case law: o Discovery health v CCMA § Court held that the intention of the Immigration act was not to render an employee’s contract of employment concluded without a permit null and void – to do so would encourage unscrupulous employers to exploit unprotected workers and persons §

Court held that even if the contract was invalid the definition of employee does not presuppose a valid contract of employment is necessary – therefor any person who works for another person and receives remuneration falls within the definition of employee in terms of section 213 of the `LRA and within the scope of protection of section 23 of the constitution.

o Kylie v CCMA § Does the term employee extend to unlawful activities? §

Labor court of appeal concluded that within the framework of the constitutional right to fair labor practices, kylie was in an employment relationship even if there was no valid contract of employment

§

Relationship fell within the application of the LRA that advances the goals of social justice, fairness and respect for all.

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Van Eck BPS and Nemusimbori E “Uber Drivers: Sad to Say, but no Employees in SA” (2018) THRHR (Vol 3) 473- 483 •

Transportation via uber now operates in approximately 84 countries and 674 cities worldwide o Over 40 million uber trips are requested through their app every month o Uber has over 2 million drivers, 4000 of which operate in South Africa o Offer better prices than taxi transportation

• How does Uber Work: o On Uber’s website, Uber BV describes itself as a company which “offers information and a means to obtain transportation services by third party transportation

providers,

drivers

or

vehicle

operators

(the

‘Transportation Provider’) which may be requested through the use of an application supplied by Uber and downloaded and installed by an individual on his or her mobile device”. o The Uber App facilitates demand between two groups, namely, transportation providers and users seeking transportation o The parent company, Uber BV, which is incorporated in the Netherlands, owns and operates the Uber App. Uber SA is a subsidiary company of Uber BV and commercial arrangements between the two companies allow Uber SA to provide specified services to Uber BV (marketing, training and support services rendered on behalf of the holding company in SA) o Uber BV and Uber SA do not own any vehicles in South Africa. o Uber only connects transportation providers via information technology. o There are 3 types of transportation providers: §

Registered partner- person who owns but does not drive a vehicle that is registered with Uber BV

§

Partner-driver- person who own and drives a registered Vehicle

§

Driver- person who does not own an uber registered vehicle, but is registered with Uber BV as a driver for a registered partner

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Charlene Ferns ABR 410 Notes

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What is NB to remember about a driver is that they are bound by Uber BV contractual standards and they receive remuneration from the owner of the vehicle

o Each driver creates a profile on the Uber BV website, uploads a valid South African driving license, attends a driver competency test and undergoes a screen- ing and background check. The drivers then attend an information session at the office of Uber SA in Cape Town or at designated place of Uber SA o During that session, drivers are provided with information on how to use the Uber App and how to maintain good ratings from users. The driver’s profile then is activated

• Global Problems Facing Uber: o Because of the growing popularity and increase in users, uber is seeking more and more drivers to work for the company §

This bears a problem for many countries as the more people uber employs, the more countries have to grapple with the question of whether or not those people who work as drivers for uber do in fact constitute employees? •

If they are not employees, should they even be allowed to operate within the country? o Countries such as Spain, Germany and China have banned uber to protect their own transportation industry, while other countries such as England and the USA have held that uber drivers are in fact employees deserving of protection in terms of legislation.

o What is SA stance on Uber drivers? §

Due to the ever-increasing popularity of uber amongst majority of the population in SA + the major threat it poses to the local transportation industry, Uber has received a lot of unwanted press.

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There have been press reports of uber drivers being assaulted by rival meter taxi drivers in some part of the country

§

The biggest issue SA is currently having to come to terms with regarding Uber is not whether it should be band, but whether the drivers working for Uber should be seen as employees in terms of the LRA. •

Uber SA Technology Services (Pty) Ltd v NUPSAW and SATAWU obo Tsepo Morekure (2017) CCMA o In this unreported case the commissioner for conciliation, mediation and arbitration held that uber drivers are employees §

In this case before the CCMA, Uber BV and Uber SA emerged as 2 possible employers of uber drivers.

§

Uber SA argued all contractual relationships between the drivers and Uber only existed between the drivers and Uber BV not Uber SA.

§

Uber SA further argued that because they were not a party in the contracts, that they should not be involved in the dispute proceedings as Uber drivers were essentially independent contractors of Uber BV.

§

The commissioner in this case held that uber drivers operating in SA are employees in terms of section 213 of the LRA which essentially meant the CCM had jurisdiction to arbitrate unfair dismissal claims of uber drivers

§

The court noted that the commissioner primarily relied on the code of good practice:

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Charlene Ferns ABR 410 Notes

Use at own risk Who is an employee to determine whether drivers constituted employees §

According

to

the

CCMA,

this

code

established a new test different to that used by our courts, namely a test dependent on the reality of the relationship. (this test requires that despite the form of agreement, the decision maker must consider the real relationship between the parties by taking a basket of factors into account to form a dominant impression) §

It was specifically held that the commissioner made factual findings in relation to uber in general and did not differentiate between the legal entities of Uber SA and Uber BV.

Commissioner found the following: § Drivers render a personal service and the relationship between the uber driver and Uber would terminate upon the uber driver’s death §

The relationship will continue for an indefinite period until it is deactivated

§

Uber drivers are subject to the control of uber (drivers might choose their own working hours, but their performance is still regulated by Uber’s strict performance standards in terms of the deactivation policy).

§

Uber drivers are economically dependent on uber who ultimately juristic pe...