Protection of foreign Contractors under South African Labour Law
By Izak Potgieter, Heyns and Partners Inc.
Employment is in a constant cycle of change as globalisation, technological advancement and political changes exercise their influence on the labour market of a region. Africa, and South Africa in particular, has not been immune to these changes, leading to increased employment of foreigners who either chose to settle here or who were specifically recruited for their proficiency in a particular field.
These foreign employees may fall prey to unscrupulous employers who attempt to circumvent South African Labour Laws even though they are obliged to treat them the same as local born employees.
Such employers seek to avoid applicable local laws by designating a foreign contractor as an ‘independent contractor’ or by procuring services via a ‘labour broker’. South African courts have counteracted this trend by finding that foreigners contracted out by labour brokers will in many instances be regarded as being employed by the brokers themselves, paving the way for added protection.
Similarly, simply designating someone as an independent contractor has been deemed to be insufficient to exclude the protection afforded by local labour laws and courts will now investigate the nature of the relationship between employer and employee, rather than confining themselves to the wording of an employment contract.
Foreign contractors will therefore generally enjoy protection of South African labour legislation regardless of their origin.
Izak PotgieterHeyns and Partners Inc., Goodwood, South Africa
T: +27 21 590 72 00
Heyns & Partners Inc. was founded in 1958 and started to conduct business under its current name in 1986. It is privileged to represent a very diverse and extensive client base, both corporate and individual, offering litigation, conveyancing and notary services.
Izak Potgieter joined Heyns & Partners Inc. in 2011 as a candidate-attorney and was admitted as an attorney in 2013. Izak tends to commercial law litigation matters, correspondent instructions and also labour lawrelated legal services.
Published: Spring 2017 l Photo: Colourbox.de