AUTHOR: MICHELLE POSEMANN
PUBLICATION DATE: JULY 28, 2025
1. Introduction
Globally, it is becoming increasingly more complex to establish whether parties are in an employment relationship.
The rapid evolution of the manner in which people make their services available to others, is placing increasing pressure on legislators to expand the scope of ‘who is an employee’ to include more non-standard forms of employment/service delivery.
This is the only way in which ‘workers’ who fall outside the definition of ‘employee’ but are not independent contractors can benefit from some form of statutory protection, ‘employment status’ being the ‘primary portal through which a labourer enters the world of worker’s rights.
2. Analysis
As a starting point, International Labour Organisation (ILO) Recommendation 198, recognising the necessity for international guidance in establishing whether an employment relationship exists and for affording certain protections to vulnerable workers, adopted certain proposals to inter alia combat disguised employment relationships where ‘contractual arrangements have the effect of depriving workers of the protection they are due’, and to provide effective access to dispute resolution mechanisms.
At its most basic level, an employment relationship is created when one party serves another in exchange for remuneration.
Historically, and arising from the definition of employee in section 213 of the Labour Relations Act 66 of 1995 (LRA) excluding independent contractors, the debate centered around the distinction between employees and contractors. This was somewhat complicated by the differing definitions in different Acts, with some limiting the definition and some broadening its scope.
However, in recent times, this has been complicated by work being conducted via digital platforms with the people rendering those services not fitting neatly into either category. This is evident from an analysis of the many cases worldwide grappling with these issues, with some finding the existence of employment relationships and some not[iii] – in all there was an attempt by the relevant court or tribunal to ‘match the factual reality of the worker’s relationship, and dependence on, a given platform or client.’
The concept of decent work as defined by the ILO encompasses ‘fair income, provides security in the workplace and social protection for workers and their families, offers prospects for personal development and encourages interaction, gives people the freedom to express their concerns, organise and participates in decisions affecting their lives and guarantees equal opportunities and equal treatment for all.’
Workers classified as independent contractors accordingly lose access to these ‘decent work’ protections, allowing enterprises to avoid giving effect to their rights.
In order to assist in the context of platform workers, the UK Supreme Court in Uber BV v Aslam [2021] UKSC 5, with reference to Autoclenz Ltd v Belcher & others [2011] UKSC 41, defined the primary enquiry as being one of statutory and not contractual interpretation. The ‘court held that that legislation which provides for workers’ rights cannot be stymied by contracts.’ The court went on to state at para 76 that: ‘Once this is recognised, it can immediately be seen that it would be inconsistent with the purpose of this legislation to treat the terms of a written contract as the starting point in determining whether an individual falls within the definition of a “worker”. To do so would reinstate the mischief which the legislation was enacted to prevent.’
This is of particular importance when considering the complex and sophisticated contracts of enterprises such as Uber – defining themselves as a technology and not a transportation business, making arbitration subject to foreign law compulsory with large upfront payments required to institute claims and structuring the relationship to create distance between themselves and the drivers. ‘To quote Brown J in his concurring judgment in Uber Technologies Inc. v Heller, 2020 SCC 16 at [112] “It really is this simple: unless everyone has reasonable access to the law and its processes where necessary to vindicate legal rights, we will live in a society where the strong and well-resourced will always prevail over the weak.”’
It is obvious that Uber benefits from the work, that the driver is integrated into the organisation and the work is performed subject to certain prescripts and controls. These workers cannot be independent contractors.
So, affording less importance to the contractual terms and more to statutory protection, perhaps what is required is a ‘middle ground’ category of worker that falls in between the traditional employee and independent contractor. In 1965 Professor Harry Arthurs introduced the concept of ‘dependent contractor’ in Ontario, Canada.
In South Africa, extensive work has been done under the auspices of the Fairwork Project which ‘has evaluated 11 of the country’s largest digital labour platforms against five principles of fairness: fair pay (by way of suggested sectoral determination adapted to specific conditions of platform work); fair conditions (through adaptations to the OHSA, BCEA and COIDA); fair contracts (incorporating BCEA, CPA and public policy protections); fair management (implementing due process in relation to dispute resolution and decisions detrimental to workers); and fair representation (affording reasonable opportunities to organise using structures such as NPO’s and/or cooperatives)’.
One of the suggestions arising is that the ‘presumptions in section 200A of the LRA need to be adapted to the specific features of platform working’ to accommodate for example the fact that control is exercised through algorithms; that ‘the relationship consists of more than a single task (e.g. a single taxi ride or delivery), but of the sum of many such tasks processed through the same app over the relevant period’; and that the definition ‘should be interpreted broadly to reflect the reality of the relationship’.
A Code of Good Practice on the Regulation of Platform Work in South Africa is proposed ‘aimed at all workers who, regardless of the terminology in their contracts, are dependent on working for a platform’.
3. Conclusion
It would appear that the most sensible solution for this conundrum of the platform worker is to create a hybrid category of ‘dependent contractors’ and to adopt a Code of Good Practice like the comprehensive one proposed by the Fairwork Project. This would extend to platform workers at least some of the protections of employees and assist in combatting the abuse taking place by powerful organisations.
For now, the Labour Reform Commission has suggested amendments to the Basic Conditions of Employment Act 75 of 1997 for employees who are required to be available for work but are not guaranteed regular working hours. Under this proposal, employers will be obliged to provide written confirmation of key employment terms, including the notice period required for the employee to report for work, the notice period for the cancellation of scheduled work, the period which the employee must be available for work, and the guaranteed and maximum hours of work in a particular period.
Taken for a Ride: Litigating the Digital Platform Model ILAW Issue Brief (2021) – available at https://www.ilawnetwork.com/wp-content/uploads/2021/03/Issue-Brief-TAKEN-FOR-A-RIDE-English.pdf at 8.
For example, LRA, Basic Conditions of Employment Act 75 of 1997 (BCEA), Skills Development Act 97 of 1998 (SDA), and the Employment Equity Act 55 of 1998 (EEA) all have a similarly restrictive definition of employee. Whereas the National Minimum Wage Act 9 of 2018 (NMWA), Occupational Health and Safety Act 85 of 1993 (OHSA) and the Unemployment Insurance Act 63 of 2001 include workers rather than employees who work not only for employers but also for ‘any other person’.
‘In the USA in August 2020, however, a California court ruled in favour of Uber and Lyft drivers by finding that these companies should categorise their drivers as employees with benefits. In addition, in the recent UK case, Uber BV v Aslam, the UK Supreme Court held that Uber drivers are not self-employed or independent contractors as they have the status of “workers”’ – Mokofe, WM ‘Achieving decent work for platform workers in South Africa’ 161 Obiter (2022) at 173.
Mokofe, WM ‘Achieving decent work for platform workers in South Africa’ 161 Obiter (2022) at 161.
Report of the Director General: Decent Work 87th International Labour Conference 1999 https://www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-i.htm (accessed 2021-04-23)
Revisiting Uber Drivers as Employees — Comparing South African and United Kingdom Law (2024) 45 ILJ 24, Andre Mukheibir at 37.
Taken for a Ride: Litigating the Digital Platform Model ILAW Issue Brief (2021) at 36.
A collaboration between the University of Cape Town (UCT), the University of the Western Cape (UWC), and the Universities of Oxford and Manchester.
‘Cooperatives are regulated by the Co-operatives Act. A cooperative is defined as ‘an autonomous association of persons united voluntarily to meet their common economic, and social or cultural needs and aspiration through a jointly owned and democratically controlled enterprise organised and operated on co-operative principle.’ – Code of Good Practice at para 79.
Mokofe, WM ‘Achieving decent work for platform workers in South Africa’ 161 Obiter (2022) at 174.
Fairwork Code of Good Practice for the Regulation of Platform Work in South Africa (October 2020) at para 6.
Clause 10 of proposed Code.
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