Two recent arbitration awards have helped to clarify how the CCMA and bargaining councils are likely to apply the new S198A-C provisions in the LRA. The purpose of the sections is to give more job security to “non-standard”employees and to prevent abuse.
There’s been much debate on how the “deeming”provision will work in practice. It potentially converts a labour broker employee into a full time employee of the client after three months of employment. The debate has been whether the deeming results in dual employment between the labour broker and the client – or whether the client becomes the sole employer.
The two arbitrations concluded that the client becomes the sole employer after three months. This is if the arbitrator finds the the labour broker employees do not provide a genuine temporary service. Put differently, the client becomes the real employer – and will be liable to the employee for reinstatement and claims for compensation.
TIP: The client of the labour broker should assess whether the need for the employee is genuinely temporary or if it is permanent. If it is permanent, it would be preferable to employ the employee directly instead of through the labour broker.
References:
Assign ServicesPty)Ltd v Krost Shelving and Racking (Pty) Ltd and National Union of Metal Workers of South Africa (NUMSA) (2015) ECEL 1652-15 Mphirime v Value Logistics Ltd and BDM Staffing (Pty) Ltd (2015) FSRFBC34922 NBCRFLI (24 June 2015)
