Throughout recent deliberations on amendments to the Labour Relations Act, the status of labour brokers, or “temporary employment services (TES)” was a hot button issue. Trade unionists called for their outright banning. At last, however, the law governing their operation was instead tightened up, in the interests of protecting those employed by them. Many of the amendments are aimed at halting abuses whereby employers circumvented labour laws, sectoral determinations and collective agreements by employing staff via a TES.
Since a prior amendment, the Act has held a TES and its client jointly and severally liable for contraventions of basic conditions and other requirements – even though technically the TES is the employer, and the client is a third party to the employment relationship.
The new amendments go further.
(a) Where the TES and its client are jointly and severally liable for contraventions:
- The employee may sue either or both of them;
- The Department of Labour can take enforcement action against either or both;
- A court order or arbitration award issued against one in favour of the employee or labour inspector, may be enforced against either.
(b) TES employees must be given written employment particulars, compliant with the law on basic conditions of service, when they are employed.
(c) The terms and conditions of employment must comply with the Act and any labour law. In addition, significantly, where a TES employs an employee to do work for a client in whose sector there is a collective agreement or sectoral determination, the TES must comply with those too.
(d) A special level of protection is offered to employees of TES who earn below the threshhold currently set at R205 433, 30 per year. Such an employee remains an employee of the TES only if she works for the client for less than three months, is substituting for an employee of the client who is temporarily absent, or performs work which has been defined as temporary work in a collective agreement, sectoral determination, or notice by the Minister of Labour. Failing falling into those categories, the employee is deemed in law to the employee of the TES’s client. She is entitled to treatment which is not less favourable than that given to an employee of the client performing the same or similar work unless there is a “justifiable reason” for different treatment.
Prior to 2002, any dispute arising from an employee’s retrenchment from work, had to go to the CCMA for conciliation (a sort of mediation) and thereafter, if not resolved, to the Labour Court for adjudication after a full trial. This was of course costly, time-consuming and complex, and deprived a great many employees from access to justice. Those who did not have personal wealth or the support of a well-resourced and capable trade union, could often not afford legal representation to pursue their dispute, and lacked the skills to pursue the dispute as an unrepresented layperson.
In 2002, the legislature amended the Labour Relations Act to state that an employee who was dismissed following a retrenchment process that applied to her only, had an election to approach either the Labour Court for adjudication of the dispute, or the CCMA for arbitration.
This proved to be insufficient, however, as it did not assist other employees in a similarly isolated and vulnerable position in the retrenchment context.
This year, the legislature again amended the Act, now to extend the election between approaching the Court or the CCMA also to:
- single employees retrenched, even where the preceding processes involved a larger pool of employees; and
- employees retrenched by smaller employers (with ten of fewer employees) no matter how many employees were retrenched.
Whilst this is a move in the right direction, the different treatment of dismissals for conduct or capacity (which go to the CCMA for arbitration) and dismissals due to retrenchments (which usually go to the Labour Court for adjudication) is still open to criticism. The apparent rationale that retrenchment disputes are more complex may not be valid, and a more sweeping amendment allowing all employees in retrenchment disputes to elect to approach the CCMA instead of the Labour Court, would arguably be more appropriate.
The Labour Relations Act has long provided for the possibility of what was called (to the dread of many an employee) a “pre-dismissal hearing”. This had the effect of a CCMA arbitration, but replaced an in-house disciplinary process by the employer. In the latter, an employer would make allegations about an employee’s conduct or capacity which could result in the employee’s dismissal, and hold a hearing and, possibly, an appeal – and perhaps then end up defending the process at the CCMA at an arbitration preceded by a conciliation. In the former, the CCMA would take over the process, enquire into the allegations, and make a decision having the effect of an arbitration award – a greatly streamlined process.
In the past this could only be done by the employer with the consent of the employee.
The new law enables industry- or workplace-wide collective agreements to provide for inquiries by arbitrators (formerly “pre-dismissal arbitrations”), instead of requiring consent by individual employees in each case.
In addition, under the new law this process may be triggered by either the employee or the employer, when an employee complains that the holding of a hearing into her conduct or incapacity contravenes the Protected Disclosures Act. That Act aims to protect whistleblowers in the workplace. This new provision is directed at maximising fairness, while minimising the protracted litigation arising in disputes under the Protected Disclosures Act.