Tuesday, 7 August 2018.
ARE YOU STILL THE EMPLOYEE OF THE TEMPORARY EMPLOYMENT SERVICES (TES)?
The Constitutional Court handed down its judgment in the matter, CCT 194/17: Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others. This relates to the final stage of legal action taken to gain certainty about the interpretation of the LRA amendments, particularly clause s198A commonly known as the “deeming provision”.
Essentially, the interpretation of what happens to a flexible worker, earning less than the BCEA threshold (currently R205 433 per annum), who is employed by a Temporary Employment Services (TES) and placed on site at a client organisation, once the three-month period expires.
The Constitutional Court judgement that there is sole employment (with the client) for the purposes of the LRA for those workers defined above, this does not mean that TES employees become permanent, nor does it mean that Temporary Employment Services (TES) are banned. You are still an employee of the TES for many pieces of labour legislation. The Constitutional Court does not disallow TES after three months.
To assist please find below some of the most Frequently Asked Questions and the answers.
Q: Does this mean that any TES employees employed longer than 3 months now transfer as permanent employees of the client?
Sole employment is limited to LRA only, there are several other legislative elements which impact the employment relationship. The Judgement paragraph 75 clearly explains that there is no transfer of employment and that the triangular employment relationship continues.
All usual employment processes continue in respect of managing timesheets, payroll and other operational elements. Please liaise with your TES representative in this regard.
Q: Which TES employees are affected by the Constitutional Court decision?
Only employees earning below the BCEA threshold, currently R205 433 per annum, and who are placed on an assignment for more than 3 months are affected.
If a placed employee is performing a temporary service (as defined below), the TES will, for as long as the placed employee performs a temporary service, remain the employer in terms of the LRA.
A temporary service means work for a client by an employee:
- For a period not exceeding 3 months;
- As a substitute for an employee of a client who is temporarily absent beyond 3-months; or
- In a category of work for any period which is determined to be a temporary service by a collective agreement concluded in a bargaining council, a sectoral determination or a notice published by the Minister.
Q: Does this affect justifiable fixed-term contracts for employees under threshold?
No. Where employees are employed on justifiable fixed-term contracts for longer than three months, e.g. for a project, seasonal work, absenteeism etc., this judgement has no bearing.
Q: Is there any difference if we are within a Bargaining Council?
In accordance with LRA s198A(1)(c) the Bargaining Council (or sectoral determination) agreement would take precedent. We recommend that you review the existing agreement in relation to the management of TES workers placed within the sector.
Q: What happens in the event of any unfair labour practice?
The Con court ruling now provides additional protection for TES employees earning below the BCEA threshold and on assignments / TES contracts or more than 3 months.
All employees, including TES employees, are protected by existing labour legislation. As has been the case since 2010, any TES employee who experiences unfair labour practice, including unfair dismissal, is entitled to lodge a case with the CCMA.
The LRA amendments, as clarified by the Con Court judgement, provide additional protection to those employees under the threshold (R205 433) who work longer than three months in that, in the event of a breach of the LRA, they could take action against either the client or the TES.
Q: How can I find out more detailed information if I have any queries?
If you have any queries about the Constitutional Court judgement and how it might affect you, please contact your TES representative.
CAPES Public Relations
Attention: Natalie Singer
The Confederation of Associations in the Private Employment Sector (CAPES) is an umbrella body, formed in 2002, when the need for a unified voice for the South African staffing industry became apparent. CAPES was created specifically to act as the lobbying organisation for the four primary staffing associations, who represent thousands of SME staffing businesses, and several of South Africa’s largest corporate staffing companies.