(a) Yes, in certain scenarios. The Labour Relations Act 66 of 1995 provides specific protections to employees who are employed in "nonstandard employment," e.g., temporary employment service employees, part-time employees or fixed-term contract employees. It does not differentiate between South African citizens and foreign workers who have the right to work in South Africa, so the same will apply to foreign workers.
(b) Yes. The Income Tax Act 1962 defines an "employee" as including: "(a) any person other than a company who receives any remuneration or to whom any remuneration accrues."
"Remuneration" is widely defined as including:
… any amount of income which is paid or is payable to any person by way of any salary, leave pay, wage, overtime pay, bonus, gratuity, commission, fee, emolument, pension, superannuation allowance, retiring allowance or stipend, whether in cash or otherwise and whether or not in respect of services rendered …
Therefore, contingent workers can earn remuneration and be subject to employees' tax even in the absence of a formal employment contractual relationship.
(c) Yes. For a pension fund or provident fund to be tax-approved under the Income Tax Act 1962, it must be established to provide benefits to "employees." Note that an independent contractor is not an employee for the purposes of the Income Tax Act 1962, and if an employer were to admit a contractor to membership of its pension fund or provident fund, the fund could lose its tax-approved status.
(a) Yes. The Labour Relations Act 66 of 1995 provides specific protections to employees who are employed in "nonstandard employment." If the contingent worker meets certain requirements/thresholds, they will be entitled to specific protections. The law does not differentiate between South African citizens and foreign workers who have the right to work in South Africa, so the same will apply to foreign workers.
(b) Independent contractors can, subject to certain requirements, rely on a safe harbor from earning remuneration and constituting employees. Income earned from the rendering of services as part of carrying on of a trade independently of the person paying for the services is excluded from the definition of remuneration. Where a service provider employs three persons on a full-time basis, they are deemed to be an independent contractor.
Further, where individuals provide services through companies that they own and control, they may constitute "personal service providers." Personal service providers are deemed to be employees under the definition in the Labour Relations Act 1995. However, the employees' tax withholding obligation is relieved where the personal service provider submits an affidavit indicating that less than 80% of the income of the company is attributable to the recipient of the services that would otherwise be considered the personal service provider's employer.
(c) If independent contractors join a company's pension or provident fund, the fund could lose its tax-approved status.
Not at this stage. However, with the rise in platform work, we are seeing an increase in employment disputes being considered by employment tribunals and the courts where platform workers are seeking to be classified as employees to access employment rights. For more insights on this topic, along with other employment law updates, please click here.
Contingent workers are generally used to provide independent contractor services to the employer on a per-job or fixed-term basis. Under South African law, the main employment risks lie in such contingent workers being misclassified where they are actually employees, substance over form, or the contingent workers being deemed to be employees of the employer if certain legislative requirements are met.
Misclassification risks
When considering if a contingent worker has been misclassified and should be classified as an employee, the Employment Tribunal will adopt a substance-over-form approach. Generally, South African courts favor the "dominant impression" test to distinguish an employee from a contingent worker. The test assesses the true nature of the employment relationship rather than focusing on any one or specific factors that are listed in the Labour Relations Act 66 of 1995. South African courts have also laid out the important characteristics of an employment relationship that distinguish it from a relationship between a client and a contingent worker.
Deeming provisions
It is also possible for a contingent worker to be "deemed" an employee after a certain period of time has lapsed or certain requirements are met. If a contingent worker (earning below a certain earnings threshold, i.e., ZAR 254,371.67 per annum) is placed at a client for longer than three months, they will be deemed to be an employee of that client.
The law does not differentiate between South African citizens and foreign workers, so the same will apply to foreign workers.
Foreign workers
Contingent workers who are not South African nationals should have the appropriate work visa to allow them to work in South Africa and to work for the employer. The employer should review the work visa to ensure that the worker possesses a valid work visa in an appropriate visa category and with the appropriate conditions.
The risk is medium. Disgruntled contractors are likely to refer claims to the Employment Tribunal, as the process is free and easily accessible. The likelihood of a successful claim will depend on the merits of each case.
The law does not differentiate between South African citizens and foreign workers, so the same risk will apply to foreign workers regarding employment rights.
However, from an immigration perspective, the risk is high. Anyone who knowingly employs a foreigner without a valid work permit will be guilty of an offense and liable to a fine or imprisonment upon conviction.
Where a contingent worker is either deemed or classified as an employee, they will be entitled to employment law rights (such as the right not to be unfairly dismissed or subjected to an unfair labor practice).
The law does not differentiate between South African citizens and foreign workers, so the same will apply to foreign workers.
If an employer knowingly employs a foreign worker without a valid work visa, they could be liable to a fine or imprisonment upon conviction.
If a contingent worker qualifies as an "employee," they will be liable for income tax at the marginal rate and subject to pay-as-you-earn deductions. The employer then has withholding obligations in respect of the employees' tax and is required to withhold tax from the employee's remuneration and remit it to the South African Revenue Service (SARS). Therefore, it is crucial to establish that a contingent worker is an independent contractor as defined, to avoid the employer's obligation to withhold employee tax.
Employers must pay employees' tax to SARS within seven days following the end of the month in which the tax was deducted. Late or unpaid amounts may incur interest and a penalty of 10% of the outstanding amount. SARS may also impose an understatement penalty ranging, depending on the culpability of the employer, from 0% to 200% of the outstanding tax.
An employer must, monthly, deduct or withhold the amount of the employee's contribution to the Unemployment Insurance Fund (UIF) from the remuneration paid or payable to that employee during that month. In addition, employers have an obligation to pay the Skills Development Levy.
Therefore, the misclassification risk may lead to liability for failure (of the employer) to withhold contributions for UIF purposes or failure to pay the Skills Development Levy.
Should any UIF contributions or payments of the Skills Development Levy remain unpaid, the employer faces a penalty of 10% of the unpaid amount.
The law does not differentiate between South African citizens and foreign workers, so the same will apply to foreign workers.
The employer is not required to register contingent workers for mandatory social security funds such as the Compensation for Occupation Injuries and Diseases Act (COIDA) and the UIF.
The employer may be directly liable for certain amounts that may arise (for example, resulting from a workplace accident) where it has failed to register the employee under the mandatory social security funds (such as the COIDA and the UIF).
The law does not differentiate between South African citizens and foreign workers, so the same will apply to foreign workers.
If an employer admits a contractor to membership of its pension or provident fund, the fund could lose its tax-exempt status, which would mean that contributions to the fund, return on invested assets and certain benefits payable from the fund would cease to be tax-exempt. This would increase the cost to the business of contributing to the fund and expose the company to claims from employees for tax that they incurred as a result of the loss of the fund's tax-approved status. These risks should be avoidable in practice.
There are no applicable penalties, but the consequences of a pension or provident fund losing tax-exempt status could be significant.
Misclassifying a contingent worker as an independent contractor can lead to a failure to comply with the withholding and remission obligations due to SARS on the remuneration paid to such contingent worker . SARS may hold third parties, such as financial managers and shareholders, liable for these tax debts. While misclassification itself is not listed as an offense in the Tax Administration Act, anyone who willfully or negligently fails to comply with the tax Acts is guilty of an offense and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding two years.
There is no risk from an employment perspective.
From a tax perspective, anyone who willfully or negligently fails to comply with the tax Acts is guilty of an offense and is liable, upon conviction, to a fine or to imprisonment for a period not exceeding two years.