The legal framework for employees engaged in temporary employment in South Africa

Abstract

This research papers starts by looking at the historic regulation of temporary employment services (TES) before 2015. What becomes clear is that, prior to 2015 the TES was being used to shield the client from employer obligations in terms of the Labour Relations Act (LRA). This led to a lot of abuses being perpetuated by the client against the placed worker, but the client was not accountable to the placed worker. These abuses led to trade unions pushing for the banning of the TES. However, the legislature chose to rather regulate the use of TES’s and extend certain protections to placed employees earning below the threshold set out in the Basic Conditions of Employment Act (BCEA). This led to the 2014 LRA amendments which came into effect in 2015. Importance has been placed on the deeming provision which is created by s 198A(3)(b) of the LRA, which provides that a placed employee who is no longer performing a ‘temporary service’ is deemed to be an employee of the client for purposes of the LRA. The Constitutional Court in Assign Services (Pty) Limited v NUMSA has interpreted this provision to mean that once the provision is triggered, the client becomes the sole employer of the placed employee. The Constitutional Court however was not unanimous, which fuels the debate further. This research paper has also looked at how the ILO’s Private Employment Agencies Convention 181 has influenced the regulation of TES employment in South Africa and the concept of decent work. Furthermore, a comparative analysis of the regulation of TES’s in Namibia and the European Union (EU) has been done. The conclusion reached is that labour brokers cannot be banned as this will be inconsistent with international law. Furthermore, the ban of labour brokers is likely to be found to be unconstitutional in that it unreasonably and disproportionately limits the employer’s right to choose its trade trade, occupation or profession freely. As such, it is concluded that any abuses by the use of labour brokers can be prevented through better regulations. Due to the pandemic caused by COVID-19 and its anticipated lasting effect, labour market flexibility has not only become necessary but also urgent in order to grow the economy and reduce unemployment. The key is therefore to promote labour market flexibility whilst also protecting employees from being treated as commodities.