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ARE TRAINEES EMPLOYEES FOR THE PURPOSES OF LABOUR LAW?
Are trainees classified as employees? Do apprentices, people working on learnership contracts and people being trained informally by businesses have the protection of South Africa’s labour statutes?Trainees, apprentices and learnership contracts are not employees. They do not have the protection of the labour statutes.
It is widely argued that trainees are not employees, but this is a contentious issue. It is argued it is argued that trainees should not have the protection of the labour law dispensation because they are linked to the business or organisation via their need to develop skills and not for purposes of doing work. While this is a rational argument the statutes themselves indicate differently. For example, included in the definition of ‘employee’ in the LRA is the phrase: “any other person who in any manner assists in carrying on or conducting the business of an employer.” This definition includes all trainees who provide work for the business. And section 198(4)(c) of the LRA says that a student or recent graduate who is employed for the purpose of being trained or gaining experience may be employed on the basis of a fixed term contract for longer than 3 months. This clearly implies that the trainee is an employee whose rights are provided for by the LRA. As a result, any employer wishing to argue that a trainee is not an
Yes – they are protected by basic labour laws such as LRA fixed term contracts, BCEA minimum conditions and health and safety regulations. But they’re probably not protected against unfair dismissal.
The LRA only excludes military and state security employees – s2. The BCEA s3.1 also excludes state security employees but also merchant shipping employees and unpaid volunteers serving a charitable cause.The BCEA does apply “…to persons undergoing vocational training except to the extent that any term or condition of their employment is regulated by the provisions of any other law” s1 (2). So, if a trainee or intern is not covered by any other law, such as those for medical interns, they’re covered by labour laws.
S198B (3) of the LRA implies the existence of an employment relationship. It says “…an employer may employ an employee on a fixed term for longer than three months or on successive fixed term contracts.” Labour laws apply when there’s an employment relationship.
One of the justifiable reasons for fixing the term of a contract and renewing it is when the employee is a “student or recent graduate” who’s hired to get work experience. So, if they’re not soldiers, sailors, volunteers or trainees covered by a specific training regulation – they’re covered by labour laws.
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