The South African case law cited by Mr Boltman must therefore be understood against the backdrop of the constitutionally guaranteed right to 'fair labour practices' for 'everyone' under s 23 of the South African Constitution. In my view, the dominant purpose discernible from the scheme adopted in ss 1 and 128A, is the protection of workers from contrivances aimed at circumventing the protection afforded by labour legislation. An arbitrator (and the Labour Court on appeal) considering whether or not an employment relationship exists should bear that in mind. There is a rebuttable presumption of employment if any of the factors set out in s 128A are present. It is rebuttable because the parties may choose that there be no employment relationship even when one or more of the factors giving rise to a particular presumption are present. The consequence of a rebuttable presumption is to cast the onus on the person who wants to avoid an employer/employee relationship to show that, irrespective of the presence of the factors giving rise to the presumption of employment, the parties did not intend same and none in fact arose. The Van Rensburg test applied When one applies Van Rensburg, s 89(1)(a) has two legs. The first leg is whether or not the arbitrator's finding is a 'question of law alone'. If the answer is in in the affirmative, the Labour Court must proceed to consider if the finding of the arbitrator was correct. As for the former, if what the arbitrator did was to make a
The South African case law cited by Mr Boltman must therefore be understood against the backdrop of the constitutionally guaranteed right to 'fair labour practices' for 'everyone' under s 23 of the South African Constitution. In my view, the dominant purpose discernible from the scheme adopted in ss 1 and 128A, is the protection of workers from contrivances aimed at circumventing the protection afforded by labour legislation. An arbitrator (and the Labour Court on appeal) considering whether or not an employment relationship exists should bear that in mind. There is a rebuttable presumption of employment if any of the factors set out in s 128A are present. It is rebuttable because the parties may choose that there be no employment relationship even when one or more of the factors giving rise to a particular presumption are present. The consequence of a rebuttable presumption is to cast the onus on the person who wants to avoid an employer/employee relationship to show that, irrespective of the presence of the factors giving rise to the presumption of employment, the parties did not intend same and none in fact arose. The Van Rensburg test applied When one applies Van Rensburg, s 89(1)(a) has two legs. The first leg is whether or not the arbitrator's finding is a 'question of law alone'. If the answer is in in the affirmative, the Labour Court must proceed to consider if the finding of the arbitrator was correct. As for the former, if what the arbitrator did was to make a