Amendments to the labour laws came into effect on 1 August 2002
The amendments to the labour laws which came into effect on 1 August 2002 change the status of many estate agents, says Mr Bill Rawson, national president and Western Cape chairman of the Institute of Estate Agents. In terms of new definitions, many estate agents will find they are no longer “independent contractors” but “employees”, with rights and legal protection similar to those already enjoyed by their salaried managers and office-worker colleagues. These include an initial probation period, annual and occasional leave, proper procedures such as warnings and hearings before any dismissal or retrenchment, and recourse to the CCMA and Labour Court in the event of a dispute or unfair treatment. “Traditionally,” says Rawson, “estate agencies have appointed agents as independent contractors rather than as employees. This meant that the agents’ position and terms of service were limited to what was agreed in their contracts, and it was not unknown for agencies simply to terminate contracts if agents did not meet performance targets. As independent contractors, agents could not necessarily rely on the CCMA or the labour authorities to support them in the event of a dispute with theircompanies”. In terms of the amendments to the Basic Conditions of Employment Act and the Labour Relations Act, a person will be presumed to be an employee if any one or more of a list of conditions applies to his/her working relationship with the firm. In the event of a dispute, it will be up to the firm to show – if it can – why the person should not be considered an employee. The seven conditions as they would apply in an estate agency firm are: (a) someone else (eg a manager) decides or controls how the agent works (b) someone else (eg a manager) decides or controls the agent’s working hours (c) the agent forms part of the estate agency’s organisation (d) the agent has worked for the firm for an average of at least 40 hours per month over the past three months (e) the agent is economically dependent on the firm (f) the firm provides the agent with tools of trade or work equipment (g) the agent works for, or renders sevices to, that firm only. Says Rawson: “Conditions (a), (c), (d), (f) and (g) are typical of many estate agency firms. On the face of it, then, those firms’ estate agents are now employees and no longer independent contractors. They and the firms will have to adjust their working relations accordingly. “It’s possible that earnings may be brought into the picture later on, and that agents whose annual remuneration exceeds a certain figure will remain independent contractors, but we understand from the Department of Labour that nothing has yet been finalised in this regard. “The Institute of Estate Agents will shortly be holding a workshop on the new laws. We hope that as many of our member principals and managers as possible will attend.” Copies of the two new laws (Acts 11 and 12 of 2002) can be obtained from the Government Printer.
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