Labour on definition of “worker” in National Minimum Wage Bill

Department of Labour position on the definition of worker in the National Minimum Wage Bill

The Department of Labour wishes to reiterate that it stands by the version of the final Bill as agreed by National Economic and Labour Council (NEDLAC) constituencies in relation to the definition of worker in the National Minimum Wage (NMW) Bill.

The final draft of the Bill agreed to by the NEDLAC constituencies read as follows: Worker means any person who works for another and who receives, or is entitled to receive, any payment for that work whether in money or in kind.

Recent media reports have cast doubt on the definition of worker in the Bill.

The National Minimum Wage (NMW) Bill published for public comment on 17 November 2017 defined a worker as; an employee as defined in section 1 of the Basic Conditions of Employment Act.

The Basic Conditions of Employment Act (BCEA) defines an employee as follows: (a) any person, excluding an independent contractor, who works for another person or for 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 the employer.

A number of commentators on the Bill, including recent statements by Labour federations, have pointed out that this differs from the definition of worker agreed to at the conclusion of engagements in the National Economic Development and Labour Council (NEDLAC) in September 2017.

The definition has been deliberately worded in this way in order to cover all forms of employment and to avoid disputes over whether or not the worker is an employee and to prevent the contractual circumvention of the national minimum wage through disguised employment. The department tabled this definition during the NEDLAC engagements and is well aware of the intention of the definition.

The department therefore regrets the change of wording in the definition published in the November version of the Bill. The change occurred during the certification process between the Office of the Chief State Law Adviser and the department’s drafters. It was an oversight by the department and will be corrected. The department stands by the version of the Bill agreed to in NEDLAC.

Source: Government of South Africa