The Private Security Industry Regulatory Authority (PSIRA) notes and welcomes the judgment in the Labour Court against the use of so-called independent contractors in the guarding sector.

This judgement (Case No: J2126/2014) specifically refers to the independent contractor or self employed security officer system introduced to the private security industry by FMW Admin Services CC (the applicant’s in this Labour Court matter) in an attempt to circumvent minimum conditions of employment legislation for their clients in the guarding sector.  In dealing with the independent contracting model designed by FMW Admin Services CC, The Acting Judge Snyman stated, inter alia,  said the following:

[53]   ….“I have little hesitation in concluding that the applicant’s business model in this regard is unlawful and not worthy to protect or even be allowed to perpetuate.  The applicant is perpetrating a sham to avoid compliance with the provisions of the LRA and the BCEA and is clearly exploiting vulnerable individual security guards desperate for work in an economy where work is scarce”.

[59]   “But matters do not even end there.  In the undertaking required to be signed, it is glibly recorded that the self-employed security officer exercises his or right in terms of section 22 of the Constitution, implying that this contract is the exercise of a fundamental right that must be respected.  I cannot disagree more, and am of the view that exactly the opposite is true”

          “…It is contrary to constitutional values and seeks to exploit vulnerable individual persons in a society where there is a shortage of available employment.  It is contrary, in any event, to the right to fair labour practices in the Bill of Rights.  It seeks to undermine what is in essence fairness and equality in the workplace”.

Manabela Chauke, Director said “As the Authority we view this judgment as victory for security officers, the public and the industry at large. Not only are those security businesses who implemented the model of so-called independent contractor’s exploiting security officers and depriving them of legislated minimum conditions of employment, but are unfairly competing in the industry against those security businesses who are complying with the law.  The case clearly provides legal certainty that the security officers are nothing else than employees who are entitled to employee benefits and conditions of employment as prescribed in labour legislation as well as protection against unfair labour practices as provided for in the Labour Relations Act.  The Authority, with the assistance of its stakeholders, will take action against any security business that uses this unlawful independent contractor model to circumvent labour legislation.”