Author name: debbie.w.collier

Written by Prof D du Toit

Until the 1980s the world of labour law was relatively simple. Work in the mainstream of the global
economy was mainly performed by employees, regulated by employment and labour law, with a
periphery of independent contractors providing incidental services. Since then, as we know, a sea
change has taken place. The Great Wall between ‘employment’ and ‘independent contracting’ has
been breached in more and more ways, with ‘employment’ streaming out through the gaps to be
replaced by various new (or not so new) forms of work from the uncharted territory beyond the
citadel of labour law. What to do about it has been a dominant theme of labour law discourse for a
generation, with many interesting answers being given but with limited practical solutions.

More recently, the spotlight has fallen on what is termed “geographically-tethered digital work”
(such as the delivery of goods, taxi services or domestic services in specific localities by workers who
are classified as “independent contractors” and are controlled via a digital application or “platform”
rather than line managers). This focus is explained partly by the numerous court cases in different
countries where platform workers have claimed employment rights (such as leave pay), which in
turn is explained by the relatively close resemblance between such forms of platform work and
“employment” in a legal sense. The outcomes, however, have been mixed. In some cases judges
found that the relationship in question was one of disguised employment, whereas in others
sufficient distinguishing features were found for courts to conclude that the workers were true
independent contractors. As a result they enjoy no form of employment protection and, since they
seldom have alternative work opportunities, they must submit to conditions imposed by platforms
at their own discretion.

These issues have been the focus of research and advocacy by the Fairwork project, with which
CENTROW is associated, which has worked out norms of fairness based on the principles of fair pay,
fair conditions, fair contracts, fair management and fair representation, and has rated platforms in a
number of countries (including South Africa) as a means of mobilising reputational pressure for
improvement. It has been recognised, however, that not all platforms will think it necessary to make
voluntary changes and that, in the last resort (just as with employment in the 19 th  century), legal
regulation will be needed to set the baselines of decent work.

Which takes us back to the original question: how? Is it a question of simply classifying platform
workers as “employees”? Fairwork’s research has highlighted that this would only be a partial
answer. Yes, it would give workers the right to minimum wages, paid leave, maximum working hours
and the like. But the rights to organise and bargain collectively as enshrined in the LRA were
designed for workers in (large) conventional workplaces who can readily be unionised, and often
are. Experience also teaches that employment rights may be a dead letter in the absence of union
organisation to monitor compliance. Individual workers lack the bargaining power or resources to
stand up to employers who violate their rights, as can be seen in largely unorganised sectors such as
farming and domestic work. How much more disempowered would individual workers be in the face
of transnational platforms such as Uber?

Thus, while certain employment rights could be adapted and extended to platform workers (as with
part-time or temporary work) to the extent that platform work resembles employment, new rules
and institutions may be needed to protect those rights in less employment-like environments. In
particular, new institutions will be needed to enable workers to exercise collective voice and
negotiating power in regulating their own conditions of work. This, after all, is what the law of
contract is about: creating a bargain freely entered into and representing a meeting of minds. The
challenge is to create conditions to make that possible in the context of platform work, just as
collective bargaining set out to do in the world of factories, offices, shops and mines.

In other words, it may be necessary to reconstruct the wheel of labour law in such a way that it
becomes geared to the realities of the platform economy. Understanding how this could come about
is what the research of Fairwork and CENTROW is aimed at.

 But platform work is just the tip of the iceberg of constantly mutating new variants of work. In
particular, platform work that is not geographically-tethered – such as “cloudwork”, which may be
done by workers located in different parts of the world and different jurisdictions – will be even
more complex to regulate. Again it would be a case of starting from the minimum conditions of
decent work in terms of hours, rights to paid leave (including maternity leave) and safe working
conditions. Creating an institutional framework for ensuring compliance, however, may call for
reinvention of the legislative wheel rather than mere reconstruction. There may be lessons to be
learned from the time when labour law was first invented, when workers found ways to organise
where none had existed before, new institutions called trade unions were first recognised and
labour laws were formulated through a process of contestation, innovation, trial and error.

These, too, are questions which CENTROW is targeting for ongoing research.

About the author: Darcy du Toit is an Emeritus Professor and former Dean of Law at the University
of the Western Cape.

Written by Darcy du Toit

Sooner or later, all pandemics are brought to an end. But, until then, they can cause huge damage to
society, as COVID-19 is showing day by day. And none are more at risk than non-standard or
“precarious” workers – casual workers, independent contractors, all those doing jobs without
security of employment and benefits, who generally fall outside the protection of labour law.

A petition by a civil society alliance is currently circulating calling on President Ramaphosa to extend
unemployment insurance benefits to precarious workers. This is just one form of protection which is
much needed by workers who are laid off on a no-work-no-pay basis because they don’t have fixed
jobs – though much else is needed to enable them to take other steps for combating the spread of
the disease, such as social distancing (in over-crowded conditions) or even washing hands (without
running water).

But government has begun to respond. A Notice was issued on 20 March in terms of section 6A of
the Compensation for Occupational Injuries and Diseases Act (COIDA) extending the protection of
the Act in significant ways. Among other things it provides that:
・ employers must pay workers’ wages for days of self-isolation recommended by registered
medical practitioners;
・ temporary total disablement will be paid for up to 30 days to workers diagnosed with
COVID-19 “and where the Compensation Fund has accepted liability”; and
・ medical aid shall be provided for up to 30 days in “all accepted cases of COVID-19”.

The snag lies in the quoted phrases. COIDA, like nearly all labour laws, applies only to “employees”
and not to those classified as “independent contractors”.Paradoxically, this avoidance of legal
regulation has become the norm in the most cutting-edge sectors of the economy as in the days of
the first industrial revolution before labour law existed. This has been an ongoing concern to labour
law stakeholders for a generation and will remain so until it is resolved.

But the Notice itself shows a possible way forward. It starts by classifying jobs into “very high”,
“high”, “medium” and “low exposure risk occupations”, and it does this without reference to the
classification of the person performing that job. In other words, an independent contractor
performing a high-risk job would at as much threatened as an employee, but would be unprotected.

This means that the costs arising from preventive measures, such as self-isolation, fall on the worker
and the worker alone. To those who are struggling to support families in a harsh economic
environment and who contract the virus, does this not create pressure to continue working for as
long as the symptoms can be suppressed or concealed?

The cruel irony of protecting only some of those who are bearing the brunt of the risk invites us to
look for an alternative reading of the Notice. Would it not be in accordance with the Constitution to
interpret the Notice as extending the same protection (as far as possible) to all workers who are
facing the same risk, and could any provision which states the opposite not be considered
unconstitutional?

This is, of course, restating the underlying issue which has arisen time and again in cases where
workers have challenged their classification as independent contractors – for example, Uber drivers.
The difference is that, this time, not just the right to fair labour practices but the right to life is at
stake. And it is not just the rights and interests of the worker versus those of the putative employer
but the interest of society in curbing the spread of the disease.

The underlying fault line will not be fixed without a systematic overhaul of the labour law system to
ensure that all workers’ rights are equally protected. The COVID-19 crisis is underlining that this is in
the public interest.

About the author: Darcy du Toit is an Emeritus Professor and former Dean of Law at the University
of the Western Cape.