The Labour Relations Amendment Bill, 2025 (“the Bill”) has been published for public comment. As appeared in NEDLAC’s proposed amendments to the Labour Relations Act 66 of 1995 (“LRA”), the Bill introduces a Schedule 11 that intends to extend freedom of association, organisational rights and collective rights to workers in non-standard employment arrangements (“schedule 11 employees”).
Schedule 11 employees are defined to mean individuals, other than employees as currently defined in section 213 of the LRA, who work for a person that is not a client or customer of any profession, business or undertaking carried on by the individual. The corresponding definition of ‘employer’ means any person or entity for whom an employee works.
In plain language, this means that schedule 11 employees are not typical employees, but work for another person or entity. That person or entity is not their own client or customer since they are not a true independent contractor, but that person or entity is not their legal employer – up until the amendments come into effect.
An individual will be deemed to be an employee for purposes of schedule 11 unless the deemed employer can prove that the individual:
- is not subject to the control and direction of the employer in connection with the performance of the work or provision of the services;
- is not part of the organisation of the employer; and
- does not perform work or provide services to customers or clients on behalf of the employer under terms set by the employer.
Under schedule 11, such individuals would be deemed employees for the purposes of Chapter II of the LRA (freedom of association and general protections), Chapter III (collective bargaining) and Chapter IV (strikes and lockouts). Moreover, the constitution of a trade union would be able to provide for schedule 11 employees to qualify for membership.
Similarly, the proposed amendments to the Basic Conditions of Employment Act 75 of 1997 (“BCEA”) propose including a deeming provision with the same wording as schedule 11 for such deemed employees to qualify for the protections in chapter 8 of the BCEA, namely sectoral determinations.
One of the key groups of workers that would benefit from these amendments are platform workers or ‘gig economy’ workers, such as drivers on ride-hailing and food delivery apps. Given the novelty of this type of work, these workers have typically not been protected by labour legislation, which is aimed at protecting employees.
Contractually, these workers tend to be classified as independent contractors, while lacking the independence that true independent contractors enjoy.
It is generally difficult for labour to organise in the platform economy, primarily because of a lack of a shared workspace. However, this has not stopped ride-hailing drivers from conducting several protests/gatherings in South Africa over the past few years. Since there appears to be an appetite for workers to organise themselves in the platform economy, schedule 11 may provide the impetus for the formation (or evolution) of trade unions catering to these employees in the coming months.
Certain challenges are sure to arise in the exercise of these newly acquired rights: how will the ‘workplace’ be defined; and how will the representativeness of a trade union be measured when workers regularly sign up for and then leave apps?
The Memorandum on the objects of the Bill refers to the term ‘dependent contractor’, an interim category of worker between an employee and an independent contractor recognised by the International Labour Organization. Curiously, the Bill does not seek to introduce this category of workers, but rather to extend certain rights traditionally reserved for employees to a category of workers who are deemed to be employees.
More than eight years have passed since the judgment of the Labour Court in Uber South Africa Technology Services (Pty) Ltd v National Union of Public Service and Allied Workers (NUPSAW) and Others,1 in which the Labour Court found that Uber drivers were not employees of Uber South Africa. The proposed Schedule 11 may very well disturb this finding, if it is adopted.
While the wheels of lawmaking do not turn quite as quickly as those of a food delivery driver rushing along a city street, the Bill’s attempt to regularise the labour conditions of an ever-growing group of workers operating in hitherto uncertain legal conditions is a movement in the right direction. This is sure to be an interesting area of development in labour law.
1 (C449/17) [2018] ZALCCT 1; [2018] 4 BLLR 399 (LC); (2018) 39 ILJ 903 (LC).
