CHAPTER ELEVEN GENERAL (ss 82-96)

82. Temporary employment services

For the purposes of this Act, a person whose services have been procured for, or provided to, a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer.

Despite subsection (1), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person.

The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any employee who provides services to that client, does not comply with this Act or a sectoral determination.

83. Deeming of persons as employees

The Minister may, on the advice of the Commission and by notice in the Gazette, deem any category of persons specified in the notice to be-

employees for purposes of the whole or any part of this Act, any other employment law other than the Unemployment Insurance Act, 2001 (Act No. 63 of 2001), or any sectoral determination; or

contributors for purposes of the whole or any part of the Unemployment Insurance Act, 2001 (Act No. 63 of 2001).

Before the Minister issues a notice under subsection (1), the Minister must-

publish a draft of the proposed notice in the Gazette; and

invite interested persons to submit written representations on the proposed notice within a reasonable period.

83A. Presumption as to who is employee

A person who works for, or renders services to, any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present:

The manner in which the person works is subject to the control or direction of another person;

the person's hours of work are subject to the control or direction of another person;

in the case of a person who works for an organisation, the person is a part of that organisation;

the person has worked for that other person for an average of at least 40 hours per month over the last three months;

the person is economically dependent on the other person for whom that person works or renders services;

the person is provided with tools of trade or work equipment by the other person; or

the person only works for or renders services to one person.

Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6 (3).

If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6 (3), any of the contracting parties may approach the CCMA for an advisory award about whether the persons involved in the arrangement are employees.

84. Duration of employment

For the purposes of determining the length of an employee's employment with an employer for any provision of this Act, previous employment with the same employer must be taken into account if the break between the periods of employment is less than one year.

Any payment made or any leave granted in terms of this Act to an employee contemplated in subsection (1) during a previous period of employment must be taken into account in determining the employee's entitlement to leave or to a payment in terms of this Act.

85. Delegation

The Minister may in writing delegate or assign to the Director-General or any employee in the public service of the rank of assistant director or of a higher rank, any power or duty conferred or imposed upon the Minister in terms of this Act, except the Minister's powers in terms of sections 6 (3), 55 (1), 60, 83, 87 and 95 (2) and the Minister's power to make regulations.

A delegation or assignment in terms of subsection (1) does not limit or restrict the Minister's authority to exercise or perform the delegated or assigned power or duty.

Any person to whom a power or duty is delegated or assigned in terms of subsection (1) must exercise or perform that power or duty subject to the direction of the Minister.

The Minister may at any time-

withdraw a delegation or assignment made in terms of subsection (1); and

withdraw or amend any decision made by a person exercising or performing a power or duty delegated or assigned in terms of subsection (1).

The Director-General may in writing delegate or assign any power or duty conferred or imposed upon the Director-General by Chapter Ten of this Act to any employee in the Department of the rank of assistant director or of a higher rank.

Subsections (2), (3) and (4) apply with changes required by the context to any delegations or assignments by the Director-General under subsection (5).

86. Regulations

The Minister may by notice in the Gazette, after consulting the Commission, make regulations regarding any matter that may be necessary or expedient to prescribe in order to achieve the objects of this Act.

A regulation regarding state revenue or expenditure may be made only with the concurrence of the Minister of Finance.

87. Codes of Good Practice

The Minister, after consulting NEDLAC-

must issue a Code of Good Practice on the Arrangement of Working Time;

must issue a Code of Good Practice on the Protection of Employees during Pregnancy and after the Birth of a Child;

may issue other codes of good practice; and

may change or replace any code of good practice.

Any code of good practice or any change to or replacement of a code of good practice must be published in the Gazette.

Any person interpreting or applying this Act must take into account relevant codes of good practice.

A Code of Good Practice issued in terms of this section may provide that the Code must be taken into account in applying or interpreting any employment law.

88. Minister's power to add and change footnotes
The Minister may, by notice in the Gazette, add to, change or replace any footnote in this Act.

89. Representation of employees or employers

A registered trade union or registered employers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party:

In its own interest;

on behalf of any of its members;

in the interest of any of its members

A registered trade union or a registered employers' organisation is entitled to be a party to any proceedings in terms of this Act if one or more of its members is a party to these proceedings.

90. Confidentiality

It is an offence for any person to disclose information which that person acquired while exercising or performing any power or duty in terms of this Act and which relates to the financial or business affairs of any other person, except if the information is disclosed in compliance with the provisions of any law-

to enable a person to perform a function or exercise a power in terms of an employment law;

for the purposes of the proper administration of this Act;

for the purposes of the administration of justice.

Subsection (1) does not prevent the disclosure of any information concerning an employer's compliance or non-compliance with the provisions of any employment law.

The record of any medical examination performed in terms of this Act must be kept confidential and may be made available only-

in accordance with the ethics of medical practice;

if required by law or court order; or

if the employee has in writing consented to the release of that information.

91. Answers not to be used in criminal prosecutions
No answer by any person to a question by a person conducting an investigation in terms of section 53 or by a labour inspector in terms of section 66 may be used against that person in any criminal proceedings except proceedings in respect of a charge of perjury or making a false statement.

92. Obstruction, undue influence and fraud
It is an offence to-

obstruct or attempt to influence improperly a person who is performing a function in terms of this Act;

obtain or attempt to obtain any prescribed document by means of fraud, false pretences, or by presenting or submitting a false or forged document;

pretend to be a labour inspector or any other person performing a function in terms of this Act;

refuse or fail to answer fully any lawful question put by a labour inspector or any other person performing a function in terms of this Act;

refuse or fail to comply with any lawful request of, or lawful order by, a labour inspector or any other person performing a function in terms of this Act;

hinder or obstruct a labour inspector or any other person performing a function in terms of this Act.

93. Penalties

Any magistrates' court has jurisdiction to impose a penalty for an offence provided for in this Act.

Any person convicted of an offence in terms of any section mentioned in the first column of the table below may be sentenced to a fine or imprisonment for a period not longer than the period mentioned in the second column of that table opposite the number of that section.

OFFENCES AND PENALTIES

Section under which convicted Maximum term of imprisonment

Section 33A 3 years

Section 43 6 years

Section 44 6 years

Section 46 6 years

Section 48 6 years

Section 90 (1) and (3) 1 year

Section 92 1 year

94. This Act binds the State
This Act binds the State except in so far as criminal liability is concerned.

95. Transitional arrangements and amendment and repeal of laws

The provisions of Schedule Three apply to the transition from other laws to this Act.

The Minister may for the purposes of regulating the transition from any law to this Act add to or change Schedule Three.

Any addition or change to Schedule Three must be tabled in the National Assembly and takes effect-

if the National Assembly does not pass a resolution that the addition or change is not binding within 14 days of the date of the tabling; and

on publication in the Gazette.

Section 186 of the Labour Relations Act, 1995, is hereby amended by the deletion of subparagraph (ii) of paragraph (c).

The laws mentioned in the first two columns of Schedule Four are hereby repealed to the extent indicated opposite that law in the third column of that Schedule.

The repeal of any law by subsection (5) does not affect any transitional arrangement provided for in Schedule Three.

96. Short title and commencement
This is the Basic Conditions of Employment Act, 1997, and comes into effect on a date to be fixed by the President by proclamation in the Gazette.