A worker, placed at a client by a labour broker, has two employers, once he has worked for the client for more than three months.
In a recent Labour court decision, the court in Assign Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others  JOL 33875 (LC), had to decide on the legal effect of the changes effected by sections 37 and 38 of the Labour Relations Amendment Act 6 of 2014 to section 198 and 198A – D of the Labour Relations Act 66 of 1995. The amendment addresses the relationship between a labour broker or Temporary Employment Service (“TES”), the workers it engages and the client with whom they are placed. Pivotal to the amendment is a deeming provision that makes a worker an employee of the client, three months after placement.
The question facing the Court was whether the TES continues to have a relationship with the worker and, if so, whether the relationship would remain as one of employment. The applicant was a TES and the third respondent was a trade union taking an opposing stance on the issue. The applicant contended that once a placement occurs, the client becomes invested with the rights and obligations that, by operation of the Labour Relations Act 66 of 1995, accrue to an employer and, since the TES has in no sense been deprived of its status as employer, the two relationships then operate in parallel.
Held that there appeared to be no reason, in principle or practice, why the TES should be relieved of its statutory rights and obligations towards the worker, because the client had acquired a parallel set of such rights and obligations. The worker, in contracting with the TES, became entitled to the statutory protections that automatically resulted from his engagement. There seemed to be no public policy considerations relating to why he should be expected to sacrifice them because the TES had found a placement with a client, especially since the designation of the client was within the sole discretion of the TES.
Bregman Moodley Attorneys Inc. 2015/089214/21
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