In Assign Services the Constitutional Court had to decide whether section 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA), which deems the client to be the employer of low-paid workers after three months, establishes either a sole employer or a dual employer relationship. The Labour Court supported the dual employer approach. However, the Constitutional Court brought certainty and determined that the sole employer interpretation should be adopted.
Dlodlo AJ, for the majority, held that this interpretation was to be preferred as it is in line with the objectives of the LRA and the constitutional right to fair labour practices. Despite the legal certainty that the decision brings, it is submitted that the LRA could have been better formulated, as many questions remain unanswered. Section 198A of the LRA applies only in respect of this Act. It does not apply to the provisions of the Basic Conditions of Employment Act 75 of 1997 and the Employment Equity Act 55 of 1998. The drafters of the LRA are criticised for not adopting clear language when giving expression to the goals of the 2014 amendments to the LRA. It remains uncertain how dispute resolution bodies should deal with issues such as the transfer of accrued leave and severance pay. Are such entitlements transferred from the labour broker to the client? This discussion offers suggestions regarding how policy makers could have improved the formulation of the LRA.