The difference between employees and independent contractors carries significant weight within the employment law sector. Being considered an employee affords you a plethora of protections and dispute resolution mechanisms, while the other, not so much. But what happens in the case where you worked for someone, and they refuse to pay the monies due to you? Does your ability to claim owed monies through the Commission for Conciliation, Mediation, and Arbitration (CCMA) depend on whether you are classified as an employee or an independent contractor? This article aims to argue that independent contractors may refer a dispute to the CCMA in terms of Section 73A of the Basic Conditions of Employment Act (BCEA).

Section 73A of the BCEA allows an employee or a worker, who earns below the earning threshold, to refer a dispute to the CCMA concerning the failure to pay an amount owing to that employee or worker in terms of the BCEA, National Minimum Wage Act, a contract of employment, a sectoral determination, and a collective agreement. It is important to note that this section makes a distinction between an employee and a worker.

According to Section 1 of the National Minimum Wage Act (NMWA), a worker is given a broad definition and is defined as “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”, and similarly, an independent contractor, in its literal meaning, can be defined as a self-employed person or entity contracted to perform work or perform services, to another entity as a non-employee.

Therefore, on the face of it, it can be argued that a worker, as defined in the NMWA, can be interpreted to include an independent contractor, and as a result, would be able to refer a dispute in terms of Section 73A to the CCMA for adjudication.

This section acknowledges that while employees are afforded a wide range of protections, some and/or similar protections need to be extended to include independent contractors, in certain circumstances, to uphold the principle of fairness and equality.

WRITTEN BY BRIDGETON PETOORS
Bridgeton Petoors is a candidate attorney at Miller Bosman Le Roux.

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