Two is a party three is a crowd : an appraisal of temporary employment services in South Africa

Abstract

The Labour Relations Amendment Act 39 of 2014 introduced mechanisms aimed at providing improved protection for non-standard forms of employment. Section 198 and 198A of the amended Labour Relations Act 66 of 1995 (LRA) now provides a regulatory framework for Temporary Employment Services (TESs), with increased protective mechanisms for employees that fall below the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA). In this dissertation, I explore how the deeming provisions of section 198A affect the rights and obligations of the TES, its client and the employee in the triangular relationship. The manner in which the courts have interpreted the deeming provisions introduced by section 198A(3)(b) of the LRA, and the implications of the recent constitutional court judgment in the matter of Assign Services (Pty) Ltd v National Union of Metalworkers of South Africa & Others (Casual Workers Advice Office Amicus Curiae),1 will also be examined in order to determine the extent to which the Constitutional Courts judgment has resolved the interpretational conflict surrounding section 198A. Consideration is further given to the various international instruments adopted by the International Labour Organisation (ILO) on TESs. A comparative analysis of regulatory developments applicable to TESs in the European Union (EU), United Kingdom (UK) and Namibia is also provided in order to determine what guidance for South Africa can be gleaned from these jurisdictions.