An analysis of the deeming provision relating to temporary employment services in South Africa

Abstract

The Labour Relations Act 66 of 1995(LRA) is the primary legislation regulating employment relations in South Africa. Despite its effort to provide adequate protection to employees employed in various capacities, the LRA seems to have fallen short when it comes to atypical employees. Before the LRA was amended in 2015, Temporary Employment Services (TESs) were largely unregulated; this provided ample opportunities for clients to exploit the vulnerable TES employees. It is this abuse and exploitation which lead to the introduction of the section 198A(3)(b) of the LRA(deeming provision). The deeming provision applies to TES employees who earn below the monetary threshold stipulated in section 6(3) of the Basic Conditions of Employment Act 75 of 1997. This is an effort by the legislature to reduce the exploitation of employees working in atypical forms of employment. Despite these efforts, the deeming provision has been subject to a lot of debate particularly with regard to its correct interpretation and application. It is against this background that this dissertation will focus on the ways in which the deeming provision has been interpreted by trade unions and labour brokers. This dissertation will also discuss the judgement handed down in Assign Services (Pty) limited v National Union of Metalworkers of South Africa and Others (2018) 39 ILJ 1911 (CC), to determine whether the court provided sufficient clarity about the meaning behind section 198A(3)(b) of the LRA.