FREELANCERS HAVE RIGHTS TOO

Independent Contractors or so-called freelancers are often the most abused regime of “workers” in the media industry in South Africa.

Almost without exception this group of people does not get the normal benefits employees would be entitled to in terms of the Basic Conditions of Employment Act, like paid leave, sick leave, company medical aid and pension and most importantly, security of employment.

Freelancers are by definition excluded by the Labour Relations Act, No.66 of 1995 as employees.

Section 213 of the Labour Relations Act defines an employee as anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer.

In an attempt to stop, or at least to minimize the abuse, Section 200A was promulgated.

Section 200A states that, unless the contrary is proven and regardless of the form of the contract, a person is presumed to be an employee if any one of the following circumstances exist:

The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person;

The person forms part of the organisation;

The person has worked for the other person for an average of at least 40 hours per month for the last three months;

The person is economically dependent on the other person ;

The person is provided with tools of trade by the other person; and

The person only provides services to one person.

Freelance contracts are generally very one-sided and in favour of the “employer” and it is generally accepted freelancers can be hired and fired at the whim of the employer.

Freelancers would not have access to the CCMA or Labour Court unless there is a claim of being an employee in terms of Section 200A of the Act.

For the reasons above the SABC, like many employers favour freelance contracts and has thousands of freelancers on their books.

Employers, and the SABC in particular has also been very vocal in respect of discouraging freelancers to join trade unions, on the basis that a freelancer does not have any labour rights.

Fortunately the landscape for freelancers is fast changing.

In a landmark case, freelance journalist and presenter Vuyo Mvoko who was one of the SABC 8, won his case in the Supreme Court of Appeal after his contract was terminated for speaking out against the protest policy of Motsoeneng.

MVOKO’S MATTER

Mr Mvoko was inter alia aggrieved when the SABC adopted a policy in terms of which footage of violent protests would not be shown on television, a decision which resulted in the resignation of Mr Matthews.

As a result of several incidents of political interference at the time, Mr Mvoko decided to turn to the media to offer his reflections of the state of the SABC.

On 6 July 2016 he published an article in The Star.

The article was entitled ‘My hell at the SABC…  ‘In power mongers’ grip’.

The first paragraph read as follows:

The SABC has never been a paragon of a great anything. It has been a work-in-progress, with degrees of success as generations of well-meaning South Africans tackled the extraordinarily and complex task of undoing decades of apartheid misuse of this national asset.

Mr Mvoko criticised the policy referred to above, namely, that violent images would not be broadcast by the SABC.

However, the part of the article that evoked the most outrage on the part of the SABC, was the following:

We are saying there’s no point in doing the right thing by promoting women to leadership positions – only to reduce them to policing duties, or walking around with their cellphones glued to their ears as they take arbitrary instructions on who to put on air.’

This was construed by the SABC as a direct and vicious attack on Ms Maseko.

Mr Mvoko was adamant that in writing the article he had the following objectives:

• to offer his reflections on what was happening at the SABC in relation to the erosion of editorial independence;

• to convey his own first-hand experience of that erosion; to dispel myths about the goings-on at the SABC; and

• to remind the public that there was still time to save the integrity of the SABC.

On 7 July 2016, the day following the publication of the article, Ms Maseko informed Mr Mvoko telephonically that he was required to collect a letter addressed to him.

Mr Molete handed him the letter and said: ‘Don’t crucify me. I just have to give you this letter’.

It is necessary to quote the relevant part of the letter:

It has come to management’s attention that you have allegedly been involved in acts of non-compliance/contravention of your contract which conduct constitutes a material breach of the agreement, relating to the following issues:

– You have brought the name of the SABC into disrepute and also damaging the image of the SABC with the comments/statements in the newspaper article of The Star Newspaper dated 06 July 2016.

Management views your conduct in a very serious light and contemplates terminating the agreement.

However, you are requested to submit written representations as to why the agreement should not be terminated and should you wish to do so, same have to be submitted to writer hereof on or before close of business on Monday 11 July 2016 (16:00).

Furthermore, Management has resolved not to schedule you to render your services as the Independent Contract until this matter is resolved.

Following on that letter Mr Mvoko’s legal representatives wrote to the SABC demanding that he ‘be scheduled’ in terms of his written agreement with the SABC.

The SABC did not comply and Mr Mvoko then turned to the courts for relief.

The SABC, in resisting Mr Mvoko’s application contended, principally, that the agreement (independent contract) on which he relied stipulated that it was the SABC’s prerogative to engage Mr Mvoko’s services ‘as and when required’.

The SABC contended that the agreement itself recognised that Mr Mvoko had no right to insist on being scheduled.

Thus, so it was submitted, Mr Mvoko could not compel specific performance.

As to the suspension of his services, the SABC took the view that it was lawfully done since the agreement provided that in performing his services he was prohibited from engaging in any conduct, behaviour, utterances and the like that, in the reasonable opinion of the SABC, had the effect of bringing the name of the organisation into disrepute or impacting negatively on his relationship with colleagues and the SABC.

The publication of the article in The Star, in the view of the SABC, was a breach of that contractual provision entitling the SABC to suspend his services.

It was adamant that an independent contractor such as Mr Mvoko could not dictate whether to feature television programmes.

Moreover, it warned that if Mr Mvoko were to be granted relief, the court ‘would in fact be prescribing to the respondent what programmes should be featured on television, and who should present them’.

This warning to the court was dramatically presented as follows:

This Court would be dragged into the news room of the respondent.’

It was not for the court, so the SABC stated, to prescribe which means it should employ in performing its functions.

The clause on which particular reliance was placed by the SABC, reads as follows:

The Independent Contractor will be engaged on an “as and when required” basis.’

It had been the practice, both in terms of the present agreement and the one preceding it, for Mr Mvoko to be scheduled to perform tasks in terms of annexure A.

The scheduling appears to have been regular, subject of course to necessary and lawful changes to programmes that fell within management’s prerogative.

The part of the agreement under the heading ‘for office use only’ contemplates services to be regularly provided by Mr Mvoko as a planning and contributing editor.

The annexure, which the agreement specifically recognises as an integral part thereof, clearly contemplates that Mr Mvoko would ‘form part of the Newsroom think tank by contributing to the divisions overall editorial strategic direction’.

This is hardly a description that supports the SABC’s interpretation in relation to the ‘as and when required’ clause.

The clause which gives the SABC the right ‘not to schedule’ the independent contractor, pending a dispute in relation to the right to terminate the agreement, is in line with that construction.

One might rightly ask why one would need to terminate rather than just not schedule an independent contractor’s services.

It is the equivalent of ‘do not call us, we will call you’, or, perhaps more accurately, ‘do not call us and we will not call you’.

All of this explains the practice in relation to the use by the SABC of Mr Mvoko’s services, both in relation to the preceding and present agreement.

The ‘as and when required’ clause has to be read in the restricted manner referred to in the second sentence of this paragraph. The principle of reading the clause within the overall context and contemplating its purpose and business efficacy when applied to the clause presently under consideration renders that result.

In light of the conclusion in the preceding paragraph there is no basis for the warning sounded by the SABC to courts to avoid imposing themselves within the SABC boardroom.

If anything, for reasons that are set out hereunder, the SABC should be careful not to be a law unto itself.

It has to operate within its statutory mandate and, like the rest of us, it has to conduct itself within constitutional parameters.

The SABC’s reliance on clause 13.2 of the agreement read in conjunction with clause 5.4.3 for its right to suspend Mr Mvoko is misplaced.

Clause 13.2 requires an investigation into irregularities on the part of the independent contractor pending the conclusion of which the SABC is entitled to suspend.

The difficulty regarding that part of the SABC’s case is that its conduct, described in detail by Mr Mvoko and which is unrefuted, is what brought it into disrepute.

It behaved in a manner reminiscent of an era which we all would much rather forget. It smacks of high-handedness and of a lack of consideration of the SABC’s role as a national broadcaster.

In this respect, regard should firstly be had to the basic values and principles governing public administration set out in s 195 of the Constitution which provides, amongst others, that services must be provided impartially, fairly, equitably and without bias, and that public administration must be accountable.

In terms of s 195(2) these principles apply to administration in every sphere of government, organs of state and public enterprises.

The highest standards of journalism and of integrity in public administration can rightly be expected of the SABC.

The political interference complained of by Mr Mvoko is, as already pointed out, uncontested.

It is inexcusable and rather than rendering Mr Mvoko liable to disciplinary action it calls for an enquiry into the conduct of the SABC in its role as public broadcaster.

The article in The Star was in the form of a whistle blower exposing the ills at a national institution owned by all of us as citizens.

The criticism allegedly directed at Ms Maseko as a person who was being politically manipulated by others and who responded to political instruction was based on Mr Mvoko’s experiences at the SABC.

The SABC was directed to comply with the written agreement dated 4 April 2016, and to schedule Mr Mvoko, as in the past, to perform his services as set out in annexure A to the agreement and to remunerate him accordingly in relation to the remaining term of the agreement.

The SABC was ordered to pay the applicant’s costs including the costs consequent upon the employment of two counsel.

As if the SABC did not learn from this costly exercise, they embarked on similar conduct recently when Lotus FM station manager Alvin Pillay fired freelance radio presenter Shirdika Pillai for raising concerns about favouritism and other complaints against station management, with management but copying the now fired COO, Mr. Chris Maroleng and CEO Madoda Mxakwe in the email.

Pillai was accused of misconduct and breach of contract and her freelance contract was ended by the SABC.

Pillai lodged a complaint with her trade union BEMAWU and when an exchange of letters and warnings did not pursuade the SABC to review its unlawful decision, the union proceeded with legal action against the SABC.

Assenmacher Attorneys, instructed by BEMAWU issued summons against the SABC on behalf of Pillai in the High Court.

Pillai was paid out for the remainder of her contract and the SABC had to pay the legal cost of BEMAWU.

It is clear that freelancers are not at entirely at the mercy of its masters, and furthermore that freelancers employed in public institutions would enjoy more rights to fair treatment than others not so employed.

Taking a matter to the High Court is a costly exercise, in particular for individuals.

Being a member of a Trade Union like BEMAWU, prepared to take on and represent freelancers, would be a wise decision.

Just a friendly warning – no union will take on members already in trouble. It’s best to join and be a member in good standing which will ensure representation when needed.