If you are part of the management of a Community Scheme, the legal considerations when employing workers are of utmost importance. Your scheme could incur exorbitant debt if you have not crossed your t’s and dotted your i’s. Employing a gardener in your community scheme is one of the most common areas of consideration.
We are all too familiar with the scenario where you are dissatisfied with the services of your garden service and would rather employ a gardener for a fraction of the cost of a garden service contract.
The Background on Community Schemes in South Africa
There are over 32,000 registered community schemes with the Community Schemes Ombud Service (CSOS) in South Africa. This figure is part of a broader estimate indicating that there are approximately 70,000 community schemes in total across the country, meaning that around 40,000 schemes still need to register with the CSOS to comply with the Community Schemes Ombud Service Act.
Legal Considerations for Employing a Gardener in South African Community Schemes
When a community scheme in South Africa employs a gardener to maintain common gardens, there are several legal considerations to take into account, including the necessity of a contract, insurance requirements, and other liabilities. Below, these aspects are discussed in detail.
1. Contractual Obligations
Does your gardener need a contract?
In South Africa, it is advisable for community schemes to have a formal employment contract when hiring a gardener. A contract is a legal document that outlines the terms of employment, including duties, working hours, remuneration, and termination conditions. It not only protects the rights of both parties but also clarifies expectations and responsibilities.
Alternatively, if the gardener operates as an independent supplier without a formal contract, this arrangement may limit liability for the community scheme. However, this could expose the scheme to risks if the gardener is deemed an employee under labor laws. The distinction between an employee and an independent contractor can be complex and hinges on factors like control over work and the provision of tools. Therefore, having a contract is generally recommended to mitigate potential disputes and clarify the nature of the working relationship.
2. Insurance Coverage
Should the community scheme cover accidental benefits?
Yes, it is prudent for community schemes to have accidental benefit cover for workers such as gardeners. This type of insurance provides financial protection in case of injuries sustained while performing work duties. Given that gardening can involve physical risks—such as injuries from tools or slips and falls—having adequate coverage ensures that both the worker and the community scheme are protected against unforeseen accidents.
The Community Schemes Ombud Service (CSOS) Act requires schemes to maintain appropriate insurance coverage for their operations. This includes taking out insurance against various risks that may affect employees or contractors working within the scheme. Accidental benefit cover can help cover medical expenses or provide compensation in case of serious injury or death resulting from workplace accidents.
3. Other Liabilities
Employing a gardener involves several liabilities beyond contractual obligations and insurance coverage:
Health and Safety Compliance:
The community scheme must comply with health and safety regulations to ensure a safe working environment for the gardener. This includes providing necessary safety equipment and training on safe working practices.
Unemployment Insurance Fund (UIF):
If the gardener is classified as an employee, the community scheme is obligated to register them with the UIF and make contributions. This fund provides benefits to workers who become unemployed or are unable to work due to illness.
Compensation for Occupational Injuries and Diseases Act (COIDA):
Community schemes must also consider their obligations under COIDA, which mandates that employers compensate employees injured on duty. This act covers medical expenses and compensation for loss of income due to work-related injuries.
Tax Obligations:
Depending on the employment status of the gardener (employee vs. contractor), the community scheme may have tax obligations related to PAYE (Pay As You Earn) deductions if they are considered an employee.
In summary, while employing a gardener in a South African community scheme may seem straightforward, it involves navigating various legal requirements related to contracts, insurance coverage, and liabilities. It is advisable for community schemes to seek legal guidance to ensure compliance with all relevant laws and regulations while protecting both their interests and those of their workers.
If you want to ensure that your Community Scheme adheres to all the legal requirements, contact Camalb today to get your affairs in order.
