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.