Labour Broking also known as temporary employment services occur when a person/company provides labourers to an employer on a temporary basis.
Labour Broking has become a growing concern in South Africa. The use of “Labour Brokers” by many employers has created “dual employment”. One of the issues is the interpretation of section 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA) with regard to “sole employment” which has created many complications between Unions and Labour Brokers. The employees of both these parties often had limited or no protection.
The Constitutional Court has now curtailed the many concerns and has afforded the much needed protection to these employees, confirming the interpretation of section 198A(3)(b).
The working conditions of Labourers employed by Labour Brokers were not close to that of permanent employees and they were unable to exercise their employment rights. Often enough the nature of their employment was that of “dual employment” and as a result these Labourers faced many challenges.
These employees were not afforded the best protection in terms of the Labour Relations Act and many Unions in an effort to resolve these controversial issues and to protect these employees incurred many difficulties with Labour Brokers and the interpretation of Section 198A(3)(b) by the Labour Court.
On 26 July 2018, The Constitutional Court confirmed the interpretation of Section 198A (3) (b) and stated that it should be interpreted in accordance with fair labour practices. The Court has ruled that a worker placed by a Labour Broker, who has been employed by a Client of the Labour Broker for a period of more than 3 months ceases to be a temporary employee, rendering a temporary service to that Client and becomes a sole employer of that Client.
This landmark ruling will change this aspect of Labour Broking in South Africa
South Africa’s employees in this sector are now in this way afforded the protection they require and are further afforded the opportunity for permanent employment. This ruling has the capacity to change the lives of many and addresses the issue of exploitation.
Ultimately this is seen as a victory for many employees and their Unions across South Africa, however this judgment jeopardises Labour Brokers, and may ultimately limit the services of and/or bring an end to Labour Brokers in South Africa.
Written by Trisha Pillay on 8 August 2018.
TRISHA PILLAY works in the Labour Department at Alan Levy Attorneys Notaries and Conveyancers. Trisha can be contacted on firstname.lastname@example.org or 011 326 8050.