BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: email@example.com. Website: www.labourlawadvice.co.za. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The Constitutional Court’s decision in handed down in August 2018 has put labour brokers and other Temporary Employment Services (TES) in a very tough situation. In Assign Services (Pty) Ltd v National Union of Metalworkers of South Africa and others the Court said that employees of a TES who earn below the threshold (i.e R205 433.30), will automatically, at the expiry of a period of 3 months, be fully integrated into the workplace of the TES’s client on the same terms and conditions of similar employees of the client. Many businesses use labour brokers in order to shift their labour law liabilities on to the labour broker. This is much more difficult now that the LRA has been amended, making the broker’s client liable in most cases for unfair practices perpetrated against broker employees. The above case clarifies the above mentioned change in the law and means that many employers now see no reason to employ lower level workers via labour brokers. The business uses the TES staff to do the work that company employees would normally do. Temp. employment agencies and labour brokers often pay a very high price for taking over the labour law risks involved because:
- Becoming an employer in South Africa is fraught with legal dangers whether you are a TES or not;
- Agencies and brokers are often at the mercy of their business clients who may mistreat the TES staff and thus incur legal liabilities for the TES;
- Many employment agencies and brokers neither understand our labour law pertaining to TESes nor understand how to protect themselves from the legal liabilities imposed on them due to their client’s actions.