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A municipality fails to pay a private contractor for work done on the municipality’s infrastructure. As a result the contractor is unable to pay its employees.
Are the contractor’s employees able to hold the municipality liable or jointly liable for their unpaid wages via the CCMA’s joinder rules or via other legislation despite the fact that the municipality is not their employer?The municipality cannot be joined or held liable for the following reasons.
• CCMA Rule 26 permits joinder only where the party is an employer, may be an employer, or has a direct and substantial interest in the employment dispute.
• The contractor is an “independent contractor” and therefore is specifically excluded from the definition of “employee” in the LRA.
• The TES provisions do not apply because the contractor is not a labour broker.
• On the face of it, the municipality cannot be deemed to be an employer in terms of s200a of the LRA or s83A of the BCEA (none of the required facts apply).
• The Municipal Finance Management Act does not create a relationship between the contractor’s employees and the municipality.
• The Local Government Municipal Systems Act covers “staff members” who are defined in the Municipal Staff Regulations as ” an employee of a municipality”. It goes on to describe a staff member as permanent, full-time administrative and operational personnel; temporary, casual, or part-time workers; any individual appointed directly to a post created on the council-approved staff establishment organogram.
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