Since the Covid-19 virus arrived in South Africa, we know the government has quite swiftly created a legislative framework to support its efforts to curb the rapid spread of the virus. On March 15, President Cyril Ramaphosa declared the outbreak of the Covid-19 virus to be a national disaster in terms of the Disaster Management Act.
This triggered the issue of a directive by the Minister of Labour, Thulas Nxesi, on March 26. For the most part, I am of the view that the initiatives of government, which I will consider below, are commendable, but they very clearly leave out a great number of independent contractors, freelancers and workers who may be currently incorrectly classified as such.
The Department of Labour has created the TERS system (Temporary Employee/Employer Relief Scheme), geared at providing support to employers in the event that the business, as a result of the pandemic, may find that they need to retrench staff or close their business altogether in the foreseeable future.
TERS is aimed at assisting employers to avoid these measures. There is also the National Disaster Benefit for which employers can apply for funds to pay staff through the Unemployment Insurance Fund in the event they are unable to pay employees and need to initiate a temporary lay-off. To operationalise this benefit, R40billion has been made immediately available as of April 8.
These measures are helpful and commendable. However, the key word in all of these measures is employees.
Who is an employee? There are some key differences between employees and independent contractors, the latter falling outside of the scope of the support structures set out above.
An employee renders their personal services, whereas a contractor performs a specific piece of work. An employee is normally at the beck and call of an employer, but a contractor chooses to accept work or not accept work.
However, what we know is more companies are resorting to fixed-term and independent contracts to perform work, also known as non-standard work, as opposed to permanent employment. Uber drivers, domestic workers, consultants, waste pickers, performing artists, actors are all among the individuals who cannot claim from the UIF fund.
The main criterion for access to TERS and the National Disaster Benefit is that you already contribute to the Fund through your employer. The only people who can contribute to the Fund are employees and employers according to the UIF Act.
To me, the crisis created by Covid-19 provides the state with a moment of deep reflection. It cannot be that a caring government would allow millions of workers to be out of pocket merely because there is no mechanism in terms of which workers are able to pay into a fund.
Again, it is an opportunity for reflection. Nothing stops the state from amending the UIF Act to create a parallel fund where contractors can contribute and access in times of crisis or really at any point in their work journey. Right now, contractors must rely on private sector entities, whether it be income insurance or banks, to assist them in this time. It cannot be that people who may only be contractors due to economic circumstances remain totally unsupported by the state in times of crisis
* Mokoena is an attorney based in Joburg
** The views expressed herein are not necessarily those of Independent Media