Legal position of TES employees
- Authors: Sidloyi, Sicelo
- Date: 2019
- Subjects: Temporary employment -- Law and legislation -- South Africa , Temporary help services -- Law and legislation -- South Africa Employees -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43478 , vital:36896
- Description: This paper focuses on the legal position of employees of a Temporary Employment Services (hereinafter referred to as “TES”), also referred to as a labour broker defined as a person or entity that provides workers to others, (their clients) to perform duties for the benefit of the client for compensation. This tripartite relationship is established by an employment contract between the employee and the TES (this forms the basis of the employment relationship) and a commercial contract between the TES and the client. This relationship is regulated by S198 of the Labour Relations Act1 (hereinafter referred to as “LRA”). This section provides protection to employees of a labour broker, where before it, such protection did not exist. This section along with its subsections will be discussed in length in this paper and this section will be criticized and its shortcomings will be highlighted. Due to S198’s shortcomings, The South African Government introduced proposed amendments to the LRA (hereinafter referred to as “LRAA”).2 These proposed amendments and the effect thereof on TES are studied to determine whether it will better the current issues experienced with TES. The amendments provide difficulty in its interpretation, particularly S198A (3) (b), also referred to as the deeming provision. This paper will study the amendments and its subsections. S198A(3)(b) is problematic in its interpretation because due to the manner in which it is drafted, strong arguments can be made for either a sole employment interpretation or a dual employer interpretation. The main focus of the paper will be to study provisions of S198 (A) (3) (b) and look at who the employer is, of employees in a TES relationship, between the TES and the client. This question will also ultimately indicate what the legal position is of employees in TES relationship. This paper will also look at how courts have interpreted the deeming provision and their findings will be highlighted and criticised.
- Full Text:
- Date Issued: 2019
- Authors: Sidloyi, Sicelo
- Date: 2019
- Subjects: Temporary employment -- Law and legislation -- South Africa , Temporary help services -- Law and legislation -- South Africa Employees -- South Africa Labor laws and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/43478 , vital:36896
- Description: This paper focuses on the legal position of employees of a Temporary Employment Services (hereinafter referred to as “TES”), also referred to as a labour broker defined as a person or entity that provides workers to others, (their clients) to perform duties for the benefit of the client for compensation. This tripartite relationship is established by an employment contract between the employee and the TES (this forms the basis of the employment relationship) and a commercial contract between the TES and the client. This relationship is regulated by S198 of the Labour Relations Act1 (hereinafter referred to as “LRA”). This section provides protection to employees of a labour broker, where before it, such protection did not exist. This section along with its subsections will be discussed in length in this paper and this section will be criticized and its shortcomings will be highlighted. Due to S198’s shortcomings, The South African Government introduced proposed amendments to the LRA (hereinafter referred to as “LRAA”).2 These proposed amendments and the effect thereof on TES are studied to determine whether it will better the current issues experienced with TES. The amendments provide difficulty in its interpretation, particularly S198A (3) (b), also referred to as the deeming provision. This paper will study the amendments and its subsections. S198A(3)(b) is problematic in its interpretation because due to the manner in which it is drafted, strong arguments can be made for either a sole employment interpretation or a dual employer interpretation. The main focus of the paper will be to study provisions of S198 (A) (3) (b) and look at who the employer is, of employees in a TES relationship, between the TES and the client. This question will also ultimately indicate what the legal position is of employees in TES relationship. This paper will also look at how courts have interpreted the deeming provision and their findings will be highlighted and criticised.
- Full Text:
- Date Issued: 2019
Statutory regulation of temporary employment services
- Authors: Pauw, Julius Bremer
- Date: 2013
- Subjects: Temporary help services -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Temporary employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10245 , http://hdl.handle.net/10948/d1019715
- Description: This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.
- Full Text:
- Date Issued: 2013
- Authors: Pauw, Julius Bremer
- Date: 2013
- Subjects: Temporary help services -- Law and legislation -- South Africa , Unfair labor practices -- South Africa , Temporary employment -- Law and legislation -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10245 , http://hdl.handle.net/10948/d1019715
- Description: This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.
- Full Text:
- Date Issued: 2013
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