In an interesting opinion piece, David Dickinson and Thabang Mohlala argue that the 2015 amendments to the Labour Relations Act (LRA) regulating temporary employment services – better known as labour broking – have proved to be a hollow victory for vulnerable workers.
The amendments provided that workers placed by a labour broker with a client company would be deemed to be permanent employees of the client after three months. Once deemed permanent, section 198A(5) of the LRA requires that the employee be treated no less favourably than other employees of the client company doing similar work. Yet no sooner had the legislation been promulgated than lawfare erupted over the meaning of the word “deemed”. In July 2018, the Constitutional Court ruled on what “deemed” meant in the Numsa v Assign Services case and it clearly stated that after three months “the employee automatically becomes employed on the same terms and conditions of similar employees [of the client company] with the same employment benefits...” At this point the client company becomes the sole employer and any remaining contractual relationship with the labour broker is purely administrative, such as managing the payroll. But labour broking companies are said to have kept exploitive labour broking practices in place. Section 198D(3) of the LRA requires that applications to be deemed as an employee of the client company must be referred within six months of completing three months of employment with the client company. If longer than six months, the applicant must convince the commissioner to condone lateness and one aspect the commissioner must consider is the length of delay. Thus, the longer workers have been without the rights afforded them, the less chance they have of realising them. Also, citing labour court cases, commissioners are now ruling that they can declare workers to be deemed employees of the client company but are unable to award them equal pay and conditions. The advice from commissioners denying relief to deemed permanent workers in terms of section 198A(5) is that applicants must now pursue equal pay and conditions through other avenues, such as the Employment Equity Act, an unfair labour dispute or a mutual interest dispute. This in addition to the many points in limine routinely raised. The authors conlcude that the CCMA is complicit in denying employees of labour brokers their rights.
- Read the full original of the article in the above regard by David Dickinson & Thabang Mohlala at BusinessLive
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