In terms of our current labour legislative framework in South Africa, you are either an employee or an independent contractor. There’s nothing in between. Section 213 of the Labour Relations Act (LRA) provides that an employee is “anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer”. I think this definition is outdated when you consider the changing world of work. It is too prescriptive. I know why it is like that though. The relationship between employer and employee in South Africa is quite adversarial. There’s generally very little trust. In the absence of trust, everything should be governed by law.
A few years ago, I argued that there was a need for a hybrid contract. I proposed that you can be an independent contractor and an employee at the same time. Consider a highly skilled employee who has other business interests but is really passionate about the employer’s business and actually adds tremendous value. They have to leave the business to pursue their business interests because up until now, the legislative framework just didn’t allow them to do both. Some will argue that they could do it as long they declare a potential conflict of interest but we all know that this never works. It depends on who you report to. It is very subjective.
I think this hybrid type of contract was in the pipeline for a while but due to this world ravaging virus, this will be accelerated. In order to survive, many employers will consider flexible/robust employment practices where they can tap into talent regardless of whether that talent is in academia, self-employment, permanent employment or any other atypical employment relationship. The one piece of research that go it right was the Global Human Capital report by Deloitte. In their 2019 version they argued that “In 2019 and 2020, as the economy is likely to slow, we think a new approach is needed. Rather than automatically opening a job requisition when a manager needs a role filled, it’s time to think about how organizations can continuously “access talent” in varying ways: mobilizing internal resources (internal mobility), finding people in the alternative workforce, and strategically leveraging technology to augment sourcing and boost recruiting productivity”.
I think vulnerable employees in the bargaining unit should still be protected but if employers are going to survive COVID-19, they need to think strategically about managing talent in the skilled and management categories. Instead of blindly employing, tap into talent. This category of employees is not too fussy about job security anyway. Some of them want to explore all their talents. They want to hustle. They would really appreciate an opportunity to sell their skills to other employers/consumers while still contributing in your business. If your company made them that offer, they would jump at it. This also helps employers who are currently grappling with ways of reducing the labour costs as a response to this crisis. Before implementing a section 189 process, consider asking your employees if some of them would consider being given a hybrid contract where they can work for you a few days in a week (and therefore reducing labour costs) while they pursue other interests on the other days. You will be surprised how many will take you up on this. It’s a win-win.
Siphiwe Moyo, Senior Associate at Twice Blue, Professional Speaker & Adjunct Faculty.