Is a Labour Broker governed by the "Industry" it employs for or can it apply the basic conditions minimum wages rules?
Important:
This answer is based on tax law year ending 28 February 2017.
Answer:
You request is not a tax related one and is best addressed to the Department of Labour or National Treasury. We do know that the ETI only applies to natural persons that are employed directly by another person and who receive or are entitled to receive remuneration.
The meaning of “directly” has been considered in a number of income tax cases dealing with the question of whether machinery and plant was being used “directly” in a process of manufacture. In the seminal case, Corbett J (as he then was) held as follows regarding the meaning of “directly”:
“The word ‘directly’ in this sense, is defined by the Shorter Oxford Dictionary to mean –
‘Without the intervention of a medium; immediately; by a direct process or mode’.
The same dictionary defines the adjective ‘direct’, in a cognate sense, as meaning –
‘Without intervening agency; immediate’."
In the circumstances, the requirement that the natural person must work “directly” for another person means that there must not be any intermediary or agency arrangement between the natural person and the other person. This would, for example, mean that a person who is provided by a so-called labour broker to render services to another person would not be regarded as an “employee” of the other person for purposes of the ETI. A person that renders services via a “personal service provider” as defined for employees’ tax purposes would similarly not be regarded as an “employee” of the person to whom the relevant services are provided for ETI purposes.