EMPLOYMENT STATUS NATIONAL STANDARD ORDER

EMPLOYMENT STATUS NATIONAL STANDARD

SUBSIDIARY LEGISLATION 452.108

EMPLOYMENT STATUS

NATIONAL STANDARD ORDER

31st January, 2012

LEGAL NOTICE 44 of 2012, as amended by Legal Notices 110 and 364

(1) The title of this Order is the Employment Status

National Standard Order.

(2) This Order shall be without prejudice to and shall not apply

in the case of

(a) any other law defining or regulating either the specific

conditions of employment of employees falling under

that particular law or the relationship between persons

providing a service and a service user and the

respective conditions thereof;

(b) any right and, or obligation which the person

providing the service and the person for whom the

service is provided may have in regard to their agreed

contract for service, as existing and in relation to

events occurring before the coming into force of this

Order, including the right to inter alia institute legal

proceedings before the appropriate court of law

Provided that the provisions of article 6 shall prevail

over paragraph (b); and

(c) the relationship between tied insurance intermediaries

and authorized insurers under the Insurance Distribution

Act.

(3) Subject to sub-article (2), any declaration made by any

individual in relation to his own or to another person’s employment

status shall be considered to be null and void and without effect if

its consequences are in any way in conflict with the provisions of

(1) For the purposes of this Order, "the Act" means the

Employment and Industrial Relations Act.

(2) Terms and expressions used in this Order, unless the

context otherwise requires, shall have the same meaning assigned

to them in the Act.

(1) Subject to the provisions of sub-article (2), when

considering the employment status of a person who is nominally

self-employed and is prima facie not considered as an employee, it

shall be presumed that there is an employment relationship and that

the person for whom the service is provided is the employer and

that the provisions of the Act and of the regulations or orders issued

thereunder apply to that relationship if at least five of the following

EMPLOYMENT STATUS NATIONAL STANDARD

criteria are satisfied in relation to the person performing the work

(a) he depends on one single person for whom the service

is provided for at least 75% of his income over a

period of one year;

(b) he depends on the person for whom the service is

provided to determine what work is to be done and

where and how the assigned work is to be carried out;

(c) he performs the work using equipment, tools or

materials provided by the person for whom the service

is provided;

(d) he is subject to a working time schedule or minimum

work periods established by the person for whom the

service is provided;

(e) he cannot sub-contract his work to other individuals to

substitute himself when carrying out work;

(f) he is integrated in the structure of the production

process, the work organisation or the company’s or

other organization’s hierarchy;

(g) the person’s activity is a core element in the

organization and pursuit of the objectives of the person

for whom the service is provided; and

(h) he carries out similar tasks to existing employees, or,

in the case when work is outsourced, he performs tasks

similar to those formerly undertaken by employees.

(2) Notwithstanding the presence of five or more of the criteria

referred to in the previous sub-article in a relationship between two

persons or more, any person in a relationship which would by

virtue of the presence of such criteria be automatically considered

to be an employment relationship may, before entering into such a

relationship, submit a written request to the Director to exempt

such a relationship from being considered to be an employment

relationship and the Director may exempt in writing that

relationship if it is considered that there are particular grounds

relating to that activity to exempt it from this requirement,

including that the activity being carried out is an uncommon

occurrence or of very short duration and such exemption shall

remain valid unless rescinded by the Director

Provided that in the case of relationships established before

the coming into force of this Order, the person concerned shall have

a period of six weeks from the said entry into force to make such a

request in respect of such a relationship.

(1) A person who was considered to be performing

services as a self-employed person for another person, whether

prior to, or at any time following, the date of the entry into force of

this Order and is subsequently found to be an employee in terms of

article 3, shall be considered to have been engaged as an employee

on an indefinite contract of the person for whom he was providing

services.

(2)

The date of engagement on an indefinite contract referred to

EMPLOYMENT STATUS NATIONAL STANDARD

in the subarticle (1) shall be considered to be the date of the initial

continuous provision of services and the seniority and any notice

due in case of an eventual redundancy shall be computed

accordingly

Provided that for the purpose of this subarticle the term

‘continuous provision of services’ shall include those contracts,

whether on a self-employed or employment basis, when the work

performed was essentially the same and where the period between a

contract and another does not exceed a period of six months and the

periods between such contracts shall be taken into account.

(3) If a person had been performing services for another person

on a self-employed basis prior to the date of entry into force of this

Order and whose relationship by virtue of article 3 is deemed to be

an employment relationship, it shall be presumed, for all intents

and purposes of the Act, that the probationary period in terms of

article 36 of the Act in that relationship has elapsed prior to the

coming into force of this Order unless the employer proves

otherwise.

(4) If a person performs services for another person on a self-

employed basis on or after the date of entry into force of this Order

and whose relationship by virtue of article 3 is deemed to be an

employment relationship, the probationary period in that

relationship shall be considered to have commenced on the date of

engagement to provide services.

(5) The indefinite contract of employment referred to in this

sub-article shall be deemed to be whole-time on the same basis as

the hours of work of a comparable whole-time employee, or, in the

absence of a comparable whole-time employee, on the basis of the

hours specified in the applicable sectoral or Wage Council Wage

Regulation Order, or, in the absence of an applicable Order, on a

forty-hour normal working week, unless, in relation to hours of

work, otherwise is specified in writing in terms of article 7.

The employer shall be obliged to grant a person who is

considered to be his employee in terms of this Order

(a) with respect to wages

(i) the same wages paid to a comparable employee

or,

(ii) where there is no such comparable employee, to

the same remuneration he used to receive in

return for services rendered on a self-employed

basis as wages

Provided that if there is disagreement as to the payable

wage and the employee terminates his employment,

the provisions laid down in article 7(2) shall apply;

(b) with respect to other conditions of employment, the

same conditions of employment as those enjoyed by a

comparable employee or, where there is no such

comparable employee, to the applicable minimum

conditions of employment in terms of the Act and the

regulations or orders made thereunder.

EMPLOYMENT STATUS NATIONAL STANDARD

Notwithstanding any provision in any law or in any

collective agreement or individual contract, if a person had been

performing services for another person on a self-employed basis

prior to the date of entry into force of this Order and whose

relationship by virtue of article 3 is deemed to be an employment

relationship, any penalty clause laid down in the previous contract

for service in relation to events occurring before the coming into

force of this Order, shall, on the entry into force of this Order, be

null and void unless and until it is authorized by the Director in

terms of the Act

Provided that this does not in any way waive any right to

initiate civil procedures for damages which may be available to

either party to the contract for service in terms of article 1(2)(b).

(1) In situations where the employment status of a person

is deemed to be one of employment in terms of this Order, the

employer shall be bound to give or send to the employee a letter of

engagement or a signed statement, which shall include the

information laid down in the Information to Employees

Regulations, and in these cases, notwithstanding the different

timeframe set out in the Information to Employees Regulations, the

timeframe for delivery of the relevant document to the employee

shall be

(a) in the cases of persons rendering services who by

virtue of this Order shall be considered to be

employees on the date of entry into force of this Order,

as soon as possible, but in any case, not later than eight

weeks from the date of entry into force of this Order,

and

(b) in the case referred to in article 3(2), where the person

for whom the services are provided requests an

exemption in terms of that same subarticle and the

Director does not accede to such a request, within two

weeks from the date of the Director’s refusal.

(2)

If an employee does not agree with -

(a) any of the conditions of employment listed in a letter

of engagement or a signed statement in accordance

with this article; or

(b) the amount of wages being proposed to be given as

specified in article 5(1),

and leaves employment, he may institute proceedings before the

Industrial Tribunal where he may claim unfair dismissal and the

relevant provisions of the Act shall apply.

Any conversion of a contract of service or of a contract of

employment into a contract for service can only have legal effect

for the purposes of the Act if it is authorized by the Director. Until

such authorization is obtained and if it is refused once sought, the

employment status of the person concerned shall be considered to

be unchanged and shall be the same as that enjoyed prior to the

request for authorization.

EMPLOYMENT STATUS NATIONAL STANDARD

Unless otherwise expressly stated, nothing in this Order

shall be interpreted as conferring on employees the right to carry

with this status benefits which are particular to their previous self-

employed relationship.

(1) The provisions in the Constitution or in any other law

which apply to employment with the public service or public sector

shall prevail over this Order and nothing in this Order shall confer a

right to any person to consider a relationship between a person

providing a service and the public sector or service for whom the

service is provided to be an employment relationship.

(2) However, in the public service or public sector, if a

relationship which is entered into after the date of entry into force

of this Order is nominally a self-employed one and satisfies the

requirements set out in article 3(1), but which, by virtue of sub-

article (1), cannot be considered to be one of employment, and in

respect of which no exemption has been obtained as specified in

article 3(2), the person providing the service may refer his case to

the Industrial Tribunal to claim compensation from the person for

whom that service is provided at any time during the relationship or

within four months from when the relationship is terminated. If the

Tribunal is satisfied that the reason for the continuation of the

contract on a self-employed basis is because of the provision in

sub-article (1), it shall grant an award of compensation and

establish an amount to be paid by the person for whom the service

is provided to the person who provides the service for the duration

of the relationship.

In such cases, the Tribunal shall award the equivalent of

what would have been one week’s wages had the relationship

become one of employment -

(a) for each year, or part of, of the duration of the self-

employed relationship, in the case of a relationship

which has been terminated; and

(b) in the case of a relationship which has not been

terminated, in addition to paragraph (a), the Tribunal

shall order the employer to continue paying this

penalty annually in respect of each year, or part

thereof, until the said relationship is terminated.

(1) It shall be the duty of the person to whom services are

provided, or the employer, as the case may be, to provide a written

statement to the person rendering the services or to his employee,

as the case may be, who requests such statement in writing and who

considers that the person to whom services are rendered or his

employer, as the case may be, may have treated him in a manner

which infringes a right conferred on him by this Order.

(2) Such statement shall state the reasons for any difference in

treatment and shall be provided within twenty-one days from the

date of the request.

(3) A written statement made in terms of this article shall be

admissible as evidence in any proceedings under this Order.

EMPLOYMENT STATUS NATIONAL STANDARD

(1) An employee may present a complaint to the Industrial

Tribunal that his employer or the person for whom he has rendered

services has infringed a right conferred on him by this Order within

a period of four months from the date when the employee became

aware of the infringement of his rights and the Tribunal may make

such order and, or award compensation as it deems necessary in

order to remedy any breach.

(2) The right of referral of a case to the Industrial Tribunal for

compensation shall also apply in respect of a person referred to in

article 10 on the basis and conditions set therein.

Any person contravening the provisions of this Order shall

be guilty of an offence and shall be liable on conviction to a fine of

not less than one thousand euro (€1000) in respect of each

employee affected.