Government clarifies definition of “worker” in minimum wage bill

Wednesday, January 31, 2018

The Department of Labour says it stands by the version of the final National Minimum Wage (NMW) Bill, which it agreed with the National Economic and Labour Council (NEDLAC).

The final draft of the Bill agreed to by the NEDLAC constituencies reads 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.” 

However, recent media reports have cast doubt on the definition of “worker” in the Bill.

The 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.”

In a statement on Wednesday, the Department of Labour said the definition has been deliberately worded in this way in order to cover all forms of employment.

According to the department, it was also changed in order 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 said it 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.”  -SAnews.gov.za