EB 37/2008
IN THE EXEMPTION APPLICATION OF:-
TRADE MODEL 5 Applicant
FJE LABOUR SUPPLIERS & SERVICES – 10398Trade Broker
and
NATIONAL BARGAINING COUNCIL FOR THE
ROAD FREIGHT INDUSTRY (Council)Respondent
______
D E C I S I O N
______
This matter was placed on the agenda of the Exemptions Body meeting held on the 23rd June 2008.
Present on this day were:-
1.Adv. R. Rawat-Chairperson of the Exemptions Body
2.Mr. Y. Nagdee-Memberof the Exemptions Body
3.Mr. T. ShortRoad Freight Employers Association
4.Mr. G. van Niekerk(RFEA)
5.Mr. J. GamedeSouth African Transport & Allied
6. Mr. A. RamakgoloWorkers Union (SATAWU)
7. Ms. E. FourieMotor Transport Workers Union
8.Mr. S. Mabaso(MTWU)
9.Mr. D. Zondani-Professional Transport Workers
Union (PTWU)
10.Mr. P. MndaweniNational Bargaining Council for the
11.Ms. T. StröhRoad Freight Industry (Council)
12.Dr. F.J. Engelbrecht-for Applicant
2
This was an application for exemption from allthe provisions of the National Bargaining Council for the Road Freight Industry (Council’s) Main Collective Agreement for a period of 3 years.
The application is being made by FJE Labour Suppliers and Services, a temporary employment service provider in terms of Section 189 of the Labour Relations Act of 1995.
Dr. F.J. Engelbrecht in his statement presented the following facts:-
“The subcontractors are place from time to time at Trade Model 5 by FJE Labour Suppliers and Services (a temporarily employment service) on a temporarily or projected bases.
FJE Labour Suppliers and Services negotiate the work contracts with the Applicant, Trade Model 5 on a tender basis for a certain project. The subcontractors (Independent contractors) apply for a contract with FJE Labour Suppliers and Services based on a fix term or fixed purpose.
The subcontractor has to comply with all the applicable regulations in terms of the industry.
In these circumstances FJE Labour Suppliers and Services does also assist with administration and support. The subcontractor receives payment according to his worksheet (timesheets) on a monthly basis. The subcontractor has to submit these worksheets either for the specific project and/or at month end.
3
The subcontractor receives the payment based on a percentage of the turnover per month according to his worksheet.
The Applicant has no employees employed but only has subcontractors and thus not employees of the above mentioned company. The main purpose is to create job opportunities and where applicable joint ventures. Subcontractors can thus start to prepare and to establish their own business as and when they obtained the capital and skills.
The subcontractors are therefore not an employee but merely a subcontractor. The subcontractor is defined not as employees but as independent contractors in terms of Section 200A of the Labour Relations Act No. 66 of 1995 as amended.
Further the subcontractors receive payment on completion of the job and do not receive any salary.
The subcontractors may tender for any job at any company.
The average income of a subcontractor is well above the minimum wage of the Bargaining Council.
The subcontractor is self employed and thus liable for compliance of all regulations and/or requirements.
4
The subcontractors understand their rights and also the cost implications of the Bargaining Council fees and minimum requirements as well as the law enforcement of the Main Agreement.
The subcontractors would like to continue to regulate their own conditions of employment with the Applicant.
The subcontractors are satisfied with the earnings as they render their own services and are self employed and their average income is between R8000.00 and R13000.00 per month.
The parties hereby in terms of the exemption clause apply for exemption not to be registered with the National Bargaining Council for the Road Freight Industry and to be excluded from the jurisdiction of the National Bargaining Council for the Road Freight Industry and Main Agreement and all other applicable collective agreements.
The Applicant hereby humbly requests the Dispute Resolution Council to grant exemption in terms of this application as no person will be negatively affected by income or any other unfair practices of the applicable legislation.”
Ms. T. Ströh assisted by lending clarity to the above confusing state of affairs. She pointed out that Trade Model 5 was not registered with Council any longer and that there were compliance processes against it which had
5
been set down for February 2008 when a postponement had been requested by Dr. Engelbrecht on the basis of an employee having had a heart attack.
Dr. Engelbrecht responded by stating that FJE Labour Suppliers and Services had ceased to exist and that Trade Model 5 came into existence. He however could not provide any details whatsoever or even state his role in the application or in what capacity and on behalf of whom he appeared.
In the light of the confusing state of affairs Council is ordered to in respect of both Companies’:-
- do respective in loco investigations;
- conduct a status investigation and Company check; and
- compliance investigation.
- to present a report to the Exemptions Body and to send a copy to Dr. Engelbrecht as well.
- Dr. Engelbrecht is invited to respond to the report and to be present when the matter is next set down.
Dated the14th day of July 2008 atBraamfontein, Johannesburg.
______
ADV. R. RAWAT MR. Y. NAGDEE
Chairperson of theI agree
Exemptions Body