Submission on Labour Relations and Basic Conditions of Employment Bills 2012 by Real Estate Business Owners of South Afr

1. PORTFOLIO COMMITTEE PRESENTATION obo REAL ESTATE BUSINESS OWNERS OF SOUTH AFRICA LABOUR RELATIONS BILL 2012BASIC CONDITIONS OF EMPLOYMENT BILL 201224 July 2012 Presented by: Gavin Stansfield

2. INTRODUCTION Submissions made on behalf of: • The Real Estate Business Owners of South Africa • Various proposals contained in the current form of the proposed Bills lacks rational justification, inter alia, in the respects referred to below

3. GENERAL NATURE OF THE BUSINESS OF ESTATE AGENTS

4. GENERAL NATURE OF THE BUSINESSOF ESTATE AGENTS MAIN BUSINESS: • Brokering of the sale and purchase of property between owners and purchasers; • Brokering and management of rental agreements between lessors and lessees; and • Seek and secure mandates from third parties • Revenue generated predominantly from the commission that is paid to the estate agent when a sale or agreement is concluded • No fixed or basic salary • Estate Agents negotiate their own commission based on the value of the property sold OR amount of rent payable

5. GENERAL NATURE OF THE BUSINESSOF ESTATE AGENTS COMMISSION PAYABLE ON: • Registration/transfer (90 to 180 days after agreement concluded) • Receipt of the deposit from the lessee WORKING HOURS • Decide their own working hours/leave arrangement • Predominantly small, family-run businesses operating as: • Franchisees • Stand-alone businesses • Single entities with multiple branch offices

6. GENERAL NATURE OF THE BUSINESSOF ESTATE AGENTS • Franchisees typically not owned by the franchisor, rather independently owned and managed • Large agencies are fragmented based on business models FINANCIAL IMPLICATIONS: • Approximately 5% - 10% of new agents remain after 6 months • Risk based: income only generated on successful registration of a property • Carries the burden of overheads and market

7. KEY PRINCPLES IN TERMS OF THE ESTATE AGENCY AFFAIRS ACT 112 OF 1976(“Estate Agency Act”)

8. KEY PRINCIPLES: ESTATE AGENCY AFFAIRS ACT RELEVANT DEFNITIONS: “employ” includes using the services of an independent contractor; “employee” includes an independent contractor. “estate agent” • Government Notice R1922 published in Government Gazette 10443 of 9 September 1986 provides as follows: • "(2) Renders as an independent contractor, any service referred to in paragraph (a)(i), (a)(ii) or (a)(iii) of the definition of "estate agent" in section 1 of this Act. • (3) For the purposes of this Act a person rendering any of the aforesaid services as an independent contractor shall be deemed to do so as employee of an estate agent."

9. TYPICAL ROLE PLAYERS IN THE ESTATE AGENT INDUSTRY

10. TYPICAL ROLE PLAYERS IN THE ESTATE AGENCY INDUSTRY PRINCIPALS: • Owners of real estate agencies and persons who own equity in those agencies • Any person referred to in in paragraph (a) or (c)(i) of the definition of “estate agent” in Section 1 of the Estate Agency Act NON-PRINCIPALS: • Qualified Estate Agent who is employed by a principal Estate Agent, but is not an owner • Typically not an employer/employee relationship • Person referred to in the definition of “Estate Agent” in Section 1 of the Estate Agency Act

11. TYPICAL ROLE PLAYERS IN THE ESTATE AGENCY INDUSTRY EMPLOYEES • Employed by principals or non-principals INTERN ESTATE AGENT • An unqualified entrant to the industryserving under the supervision of a principal for 12 months • Enrolled as learners at an accredited training provider • Must obtain their FET Certificate Real Estate within 12 Months

12. INTERPLAY BETWEEN THE ESTATE AGENCY ACT AND THE CURRENT LABOUR LEGISLATION

13. INTERPLAY DEFINITION OF “EMPLOYEE” AND “EMPLOY” IN THE ESTATE AGENCY ACT: • “includes an independent contractor” • “includes using the services of an independent contractor” • Definitions inserted due to lacuna in the Estate Agency Act • Insertion of definitions were to ensure that they fall within the ambit of the Estate Agency Act

14. INTERPLAY DEFINTION OF EMPLOYEE IN THE ESTATE AGENCY ACT vs DEFINITION IN THE LABOUR RELATIONS ACT 66 OF 1995 (“LRA”), AS AMENDED: Definition of employee in the LRA, by contrast, defines an employee as – "(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying on or conducting the business of an employer"

15. INTERPLAY • Definition of “employee” specifically excludes independent contractors • The definition of employee in the LRA takes precedence over the definition of employee in the Estate Agency Act [Section 210 of the LRA] Labour Law: SA Broadcasting Corporation v Mckenzie (1999) 20 IJL 585 (LAC): Court distilled from earlier case law certain characteristics of an employment contract that distinguishes it from a contract with an independent contractor.

16. INTERPLAY Estate Agent Industry • Divergent views on whether estate agents are “employees” or “independent contractors” • The confusion effects businesses in the Estate Agency Industry and need to be resolved The following three primary criteria apply: • An employer’s right to supervision and control • Whether the employee forms and integral part of the organization of the employer; and • The extent to which the employee was economically dependent upon the employer

17. Taljaard and Basil Real Estate (2006) 27 ILJ 861 (CCMA) • Real estate agent held to be an independent contractor because the agent had not been required to render personal services to the real estate business PAM Golding Properties (Pty) Ltd v Erasmus and Others (2010) 31 IJL 1460 (LC) and Linda Erasmus Properties Enterprise (Pty) Ltd v Mhlongo & Others (2007) 28 ILJ 1100 Estate Agents held to be employees in that the estate agents were found to be under the supervision and control of the principal

18. SUBMISSION ON THE EMPLOYMENT LAW BILLS

19. S200A and S200B • The LRA Bill has expanded the application of section 200A and section 200B of the Labour Relations Act 66 of 1995, as amended, (the “LRA”) to be applicable, amongst others, for purposes of the LRA and “any employment law…” • These amendments are not supported. The potential problems with the insertions to sections 200A and 200B is that they do not clarify the conflicting definition in the Estate Agency Act and the LRA as enunciated above.

20. S200A and S200B • Sections 200A and 200B of the LRA Bill create further confusion in that they extend the ambit of the section to apply to “other employment law”. Other employment law is defined to include the LRA and any other Act the administration of which has been assigned to the Minister, and a number of other Acts listed. • The LRA Bill fails to unify the existing uncertainties and contradictions regarding the classification of an Estate Agent as an “employee” or an “independent contractor” and the consequent liability and obligations of the employer.

21. SECTORALDETERMINATION

22. SECTORAL DETERMINATION Section 55 of the BCEA Bill deals with sectoral determinations: • Allows the Minister to prohibit or regulate sub-contracting • The Minister's wide power to prohibit sub-contracting is problematic to the extent that it interferes with the right to trade. The BCEA Bill does not define "temporary employment service" and "sub-contracting” • There are no recognised trade unions operating within the Estate Agency Industry - employees are regulated by the BCEA. The Minister may pass a sectoral determination to establish basic conditions of employment in the Estate Agency Industry with a possible vast economic impact

23. SECTORAL DETERMINATION • If fixed-term contractors fall within the ambit of sub-contractors it would make it impossible for estate agencies to effectively run its business which relies heavily on sub-contractors. Should the amendments be enacted in its present form it will mark the death knell for all sub-contracting arrangements.

24. CONCLUSION