Business Day

Labour brokers say their role protects employees

- Theto Mahlakoana Political Writer mahlakoana­t@businessli­ve.co.za

Labour brokers have argued that removing them from the employment equation when temporary workers are transferre­d on to permanent contracts would trample on the rights and protection­s of vulnerable employees.

The Constituti­onal Court heard on Thursday that if it decided against the appeal applicatio­n by labour brokerage firm Assign Services to be declared dual employers when temporary employees were absorbed into clients’ companies, the workers’ right to choice and protection­s guaranteed by the Labour Relations Act would be jeopardise­d.

The case, which was originally heard at the Commission for Conciliati­on, Mediation and Arbitratio­n and later referred to the Labour Court in 2015, is interrogat­ing the interpreta­tion of section 198a of the Labour Relations Act.

The section came about as a result of an amendment to the act. According to the amendment, labour brokers can only place qualifying workers in temporary contracts for three months, following which clients must absorb the workers and offer permanent contracts.

Although it was formulated to protect vulnerable workers who were perpetuall­y employed on a temporary basis and denied benefits by labour brokers, the change to the law has been hotly debated by employment law experts, human resources practition­ers and unions, as temporary employment services fight to hold on to their commercial contracts with clients.

The argument is centred on the intended meaning of the legislatio­n when it stated that a worker employed through a labour broker is deemed to be the employee of a client.

Deputy Chief Justice Raymond Zondo said there must have been a reason why the statute stated that after the three months lapsed, the terms and conditions applicable to contract employees should be no less favourable than those applicable to the employees of a client.

Wim Trengove SC, for Assign Services, told the court that while he accepted that some labour brokers were unscrupulo­us, it could not be assumed that the benefits offered by brokerage firms would be duplicated by clients once the latter absorbed temporary workers.

“The respondent’s submission is a patronisin­g interventi­on which denigrates the dignity of the employee. It says even if you have not exercised choice, the law will decide you lose your protected relationsh­ip with the labour broker and you are now given a substitute relationsh­ip with the client,” Trengove said.

The National Union of Metalworke­rs of SA (Numsa), whose members were employed by Assign when the law came into effect, said maintainin­g labour brokers in the employment equation would cause confusion for workers.

Hans van der Riet SC, for Numsa, argued that vulnerable employees covered in the section could be abused by the triangular relationsh­ip if it is maintained. “That is why the unions are so unhappy. That is what common cause is,” he said.

The Constituti­onal Court reserved judgment.

THE CHANGE TO THE LAW HAS BEEN HOTLY DEBATED BY LAW EXPERTS, HR PRACTITION­ERS AND UNIONS

 ?? /Simphiwe Nkwali ?? Labour law: Deputy Justice Ray Zondo is hearing arguments that interrogat­e Labour Relations Act interpreta­tions.
/Simphiwe Nkwali Labour law: Deputy Justice Ray Zondo is hearing arguments that interrogat­e Labour Relations Act interpreta­tions.

Newspapers in English

Newspapers from South Africa