Employers beware: new legislation starting Jan. 1 makes employees out of contractors

Hamilton Spectator – 30 Dec 2022

Contractors will be entitled to statutory holiday pay, minimum wage, and vacation pay, Ed Canning writes.

It is a given that the pandemic had a dramatic impact on the working world for many people. Among those are people who lost their employment and decided to become consultants. They set themselves up as independent contractors, covering their own taxes and simply invoiced their clients on a fee-for-service basis. More than a few of these consultants decided they liked working from home too much, and when the employer demanded a return to the office, they resigned and set up their own consulting businesses.

On Jan. 1, significant changes are coming to the Employment Standards Act which will make many of these people employees overnight. That means they will be entitled to statutory holiday pay, minimum wage, vacation pay and all the other bells and whistles that come with the Employment Standards Act and employee status. Employers will be required to make normal employee deductions and government remittances for these individuals.

These changes do not apply to everyone but do apply to many. They cover “business consultants” and “information technology” consultants. A business consultant is defined as someone who provides advice or services in respect of operations, profitability, management, structure, processes, finances, accounting, procurement, human resources, environmental impacts, marketing, risk management, compliance or strategy.

That definition is broad and it is hard to think of someone it would not cover who works as a consultant. Information technology consultants are defined as people who provide advice or services in respect of IT systems including advice about planning, designing, analyzing, documenting, configuring, developing, testing and installing IT systems.

These fee-for-service consulting arrangements are usually mutually agreed upon and are attractive to both the company and the contractor. Before everyone panics, however, there are some exceptions. If the contractor charges $60 an hour or more, is incorporated, or is set up as a sole proprietor with a registered name and has a written consultancy agreement they do not become employees. They must tick all three boxes. Getting a consultancy agreement is fairly straightforward but getting incorporated takes a little bit more time and effort and usually involves hiring a lawyer. An alternative to being incorporated is that the individual can set up a sole proprietorship and have a business name registered under the Business Names Act. That is probably the cheaper route to go.

I strongly suspect that most consultants charge $60 an hour or more, but if a company is paying less and doesn’t want to jack up the hourly rate, it might as well face the music and make the consultant an employee. Have an employment agreement drafted recognizing their previous services and start making deductions.

For employers, failing to put their house in order can have drastic consequences. Everything goes along swimmingly until it does not. For instance, if a consultant is terminated or gets ill or needs parental leave and wants to collect employment insurance. If they apply, EI Service Canada does an assessment to see if they were in fact an employee. If it is found that they were, it orders the employer to remit the CPP and EI deductions it should have made for the employee plus the portion it should have deducted from the employee. The employer can end up on the hook for the taxes that should have been deducted, although that is not usually the case.

If the employer files a complaint with the Ministry of Labour, it would include unpaid vacation pay and statutory holiday pay going back, likely, two years. For employers, it is simply not worth the sleepless nights waiting for this to happen. Fix it now.

www.samigration.com

UK deportation agreement with Rwanda flawed and won't solve migration crisis, say critics 

News24 – 30 December 2022 

Rwanda welcomes UK judges ruling validating deportation plan

• A UK court has ruled that the intended deportation of illegal immigrants to Rwanda is legal.
• A Labour parliamentarian believes the policy is flawed and a breeding ground for corruption.
• Rwanda can only take up to 200 illegal immigrants.

Despite the courts on Monday ruling that the United Kingdom's intended deportation of illegal immigrants to Rwanda was legal, the policy remains opaque, shrouded in secrecy, a breeding ground for corruption, and has no guarantee of solving the UK's immigration crisis, says Yvette Cooper, a Labour Party legislator.

Speaking uninterrupted for five minutes in the House of Commons on Monday, Cooper made it clear that she did not support the Rwanda deal for which Home Secretary Suella Braverman was lobbying.

"The government has failed to stop criminal gangs putting lives at risk and proliferating through our borders. They failed to prosecute or convict the gang members and failed to take basic asylum decisions which are down by 40% in the last six years.

"Instead of sorting those problems out, they have put forward an unworkable, unethical, and extremely expensive Rwanda plan which risks making trafficking worse," she said. Braverman described the court judgment as a vindication of the Conservative Party's policy.

However, Cooper argued that the policy was a drain on the UK's fiscus, and unreasonably expensive.
She said:
It sets out serious problems in Home Office decision making, identifies significant financial costs of the scheme, and also there are limited numbers of people who will be covered, and certainly no evidence that it will act as a deterrent or address the serious problems that we face. 

The court ruling, therefore, was "so flawed and chaotic".

She was supported by Garden Court Chambers - a group of barristers specialising in civil liberties, education, human rights, and immigration - who said: "The Home Secretary did not properly consider the circumstances of eight individual claimants to decide if their circumstances mean the asylum claims should be determined in the UK, or whether there are other reasons why they should not be relocated to Rwanda."

UK lawyer Colin Yeo said an appeal was likely and could delay the policy.

"An appeal by the claimants is inevitable, so the High Court judgment is not the last word. The Court of Appeal is likely to look at the case, as is the Supreme Court," he said.

UK’s bid to send asylum seekers to Rwanda is ‘lawful’: High Court
There's a three weeks window period before the deportations start, if unopposed, because of the interim measure issued by the European Court of Human Rights, which states that removal cannot take place "until 3 weeks after delivery of the final domestic decision in ongoing judicial review proceedings".

Rwanda has already received 120 million pounds (about R2.5 billion) and another 20 million pounds is on the way. 
Once the deportees land in Rwanda, the UK is not accountable for them. 

If they are granted asylum in Rwanda, they will stay. If not, Rwanda can deport them back to their countries of origin.
"The idea is that by doing this to some refugees, other refugees will be deterred from trying to come to the UK to claim asylum," said Yeo.

The United Nations High Commissioner for Refugees (UNHCR) has long been against this policy. The UNHCR found Rwanda unfit to take in people deported from the United Kingdom.

The UNHCR argued:
In the light of the history of refoulement and defects in its asylum system, Rwanda could not be relied on to comply with its obligations under that convention and, by extension, would fail to comply with the obligations it had assumed under the Memorandum Of Understandings (MOUs) and Notes Verbales (diplomatic communications). 
Cooper said the Conservative government even planned to deport heavily pregnant women, and that it wanted a state almost halfway across the world to "take decisions for us".
She added that there was no economic sense in the Rwanda deal.
"The number of people Rwanda takes will be very limited, and there will be lots more money, provided by the UK government. The Home Secretary didn't tell us about any of those things."
Rwanda will take about 200 people, and will translate to over a million pounds per person.
Before the UK deal, Rwanda entered into a similar one with Israel in 2014. In its ruling, the British court said the government didn't investigate the circumstances that led to the collapse of the Rwanda-Israel deal.

www.samigration.com

Judge tells Home Affairs to get house in order, stop wasting taxpayers’ money

IOL – 28 December 2022

Pretoria - A judge gave the Department of Home Affairs a tongue lashing for wasting taxpayers’ money by not doing its work and ignoring applications made by the public.

He said these ended up in the courts, usually with the taxpayers footing the legal bill on behalf of the department.

Judge MP Phooko, sitting in the Gauteng High Court, Pretoria, said it was time “Home Affairs got its house in order”.

He pointed out the courts were flooded with applications from people who could not get any answers from the department, regarding their legal status in the country.

In the latest such application, British citizen Jonathan Firth applied nearly four years ago for permanent residency with the department. After he did not receive any response from the department two years later, he instructed a lawyer to assist him.

The lawyer wrote letters to the department requesting information regarding the status of Firth’s application, but there was no response.

Even after this application was served, Home Affairs did not respond, and did not attend court either to defend the matter.

It was silence from its side and it adopted a no-response attitude, the judge said.

Firth turned to the court in desperation for an order compelling the department to decide whether he should be granted permanent residency in South Africa or not.

He is in South Africa under a temporary residence visa that was issued to him by the department in August, 2017.

Firth applied for a permanent residency permit in June 2018 through a VFS Global Office in Johannesburg. He was subsequently issued with a reference number.

The records from VFS Global indicate Firth’s application for a permanent residency permit was received by the department on June 6, 2018.

He had subsequently not heard from Home Affairs.

The processing period for an application for a permanent residence permit is not stipulated in the immigration laws of South Africa.

The minimum processing time of eight to 10 months is stipulated on the VFS Global website, but is not legislated.

However, precedent informs that eight months is considered to be a reasonable period for the outcome of a permanent residence application.

The judge said the importance of one knowing the outcome of their application could not be gainsaid, given the significance of a permanent residence permit and the impact it had on one’s life.

Judge Phooko said Home Affairs was under a duty to take decisions, otherwise failure to do so would render immigration laws meaningless.

“It is, therefore, clear that waiting for extended periods for a permanent residence permit application to be finalised without any update whatsoever, is unlawful.”

He added the Constitution mandated public servants to promote and maintain a high standard of professional ethics when executing their duties.

“The Department of Home Affairs is a core government department that produces important documents regarding peoples’ status and access to services in South Africa.

“The department is needed by any person who enters, lives in and/or exits South Africa. Therefore, a crucial department like Home Affairs needs to put the interest of those who approach it for any documentation first,” he said.

He remarked that, at the very least when people approached state institutions, they expected a certain level of service and care, not indifference.

“If the department continues with its non-responsive stance, cases such as this are nowhere near the end. The public purse is also going to be severely affected,” the judge warned.

He gave the department 10 days in which to decide on Firth’s request for permanent residency.

www.samigration.com

Life Partner Visa

SA Migration | 29 Dec 2022

Life Partner visa is issued to someone in a long term relationship.

This type of South Africa life partner visa is available to people in either heterosexual or same-sex relationships and can apply for a life partner temporary residence visa or a permanent residence depending on the length of the relationship in question.

An application for temporary residence life partner visa requires that the partners are in a proven relationship for 2 years. Foreigners who are life partners of South African citizens or permanent resident holders may apply for permanent residence if they have been together for 5 years or more in terms the Immigration Act.

To obtain permanent residence, you would have to have been living with your partner for more than 5 years. This came about with the new regulations.

The life partner visa is very similar to the spousal visa but accommodates same sex partnerships. You will have to prove financial and emotional support and may be called upon to be interviewed by the department.

SA Migration Intl will guide you through the entire process and make sure that your application is fully compliant with the immigration law to ensure a successful outcome. Once your application has been submitted we ensure you will be able to track the progress of said application either directly via VFS or via our followup processes via our application tracking system and be kept fully up to date with the progress of your application.

Once we confirm that you will qualify for the visa we will ensure you have a successful application.

Zimbabwe Exemption Permit: Six months before expiry, Zimbabweans in SA have mixed feelings

News24 | 28 Dec 2022

• Zimbabwe Exemption Permit holders are left with six months before the extension expiry.
• With a low uptake of other visa facilities, some Zimbabweans are looking for jobs abroad as caregivers and elementary school teachers.
• On average, more than 12 000 people are entering Zimbabwe through Beitbridge daily during the festive season.

With just six months before the time is up for those in South Africa living under the Zimbabwe Exemption Permit (ZEP), there are mixed feelings among Zimbabweans, with some wishing for a further extension, while others contemplate going abroad.

The government announced that it would terminate the ZEP on 30 June 2023, a decision that will affect about 180 000 Zimbabweans residing in South Africa.

As early as October, the Zimbabwean government announced that it was prepared for its nationals who were coming home to start a new life and would assist them with transport and other logistics.

While there has been no sign of it backing its words with action, there has been an influx of travellers from South Africa into Zimbabwe.

Between 5-10 December, 62 770 people entered Zimbabwe through the Beitbridge border.

The head of immigration at the border, Cannie Magaya, said although they had no figures yet, on the days leading up to Christmas, there had been an increase in traffic.

She said it could stay like that until early January when people start returning to South Africa.

Brian Moyo, a Zimbabwean working as a teacher in SA, didn't apply for the special skills visa because he felt it was a waste of time.

While he is going back home in early January, he has set his sights on jobs in China.

He said: "I teach English and that's not a special skill. I stood a chance as a science or mathematics teacher, as such, applying for other visas was a waste of time for me."

Moyo, before migrating to South Africa, taught at some private schools back home.

He feels his experience there could help him in China.

"There is a demand for teachers in early education in China, and English language is one of the subjects with vacancies. So I am applying for those jobs, and one advantage I have is understanding children's psychomotor skills and capacity to learn," he said.

An online search by News24 discovered that salaries for teaching jobs in China range from R70 000 to R120 000, depending on the type of school and level of experience.

In comparison to teaching jobs in southern Africa, Chinese teaching jobs pay way better.

Another opportunity will come into effect in March when the United Kingdom opens up for teachers from South Africa, Ghana, Zimbabwe and Nigeria.

But Moyo said he had not considered that option yet, since it was yet to be offered.

Working in South Africa has also become very difficult for those spending their money in Zimbabwe because of the rand's volatility against the US dollar, the preferred currency of trade.

During the festive season, R100 is the equivalent of $5.80, but most shops or businesses only value it at $5.

"It's robbery," said Steven Tshuma, another Zimbabwean based in South Africa.

He added: "They don't respect this (rand) currency. One is better off coming from Europe or elsewhere."

'I hope my boss comes up with a plan'

With the impending ZEP expiry, he is setting his eyes on the UK, Canada or Australia.

"I am starting a nurse aid course with the Red Cross (in SA) early next year. When done, I will apply for jobs abroad. Many have done it. It works," he said.

Tshuma works at a restaurant and has come face to face with members of Operation Dudula – a vigilante group that intimidates migrants.

By the end of October, fewer than 10% of ZEP holders had applied for the available mainstream visas.

An estimated 180 000 ZEP holders will be affected by the 30 June 2023 deadline set by the government.

Shiela Ncube, a domestic worker in Johannesburg, has no plans of leaving the country.

She hopes her boss will find a way around the system to keep her in SA.

He is worried that, a few months before permits expire, xenophobic attacks could resurface, and that by then they would be extreme, because they would be targeting people who had been outlawed by the government but chose to stay on illegally.

She has been with the family for close to a decade.

"I just don't know. I hope my boss comes up with a plan. We haven't spoken about it, but I trust she intends to keep me on.

"When I came this December, she gave me part of her old furniture which I sent home, and she even said she would do the same next year, so I'm thinking she sees us together for a long time," Ncube said.

Asked about looking for housekeeping jobs abroad, she replied: "No way.".

www.samigration.com