Temporary employment services in contemporary South Africa : a critical analysis.
This paper focuses on the Temporary Employment Services (TESs) industry in South Africa. The TES system involves three parties to an employment contract, namely: the client, TES and the employee. In this type of employment relationship the TES recruits the employees in order to make them available to work for the client. In terms of the Labour Relations Act 66 of 1995, the TES is the employer of the employee even though the employee works for and is controlled by the client. The Labour Relations Act 66 of 1995 provided little protection for employees in this type of employment relationship. The Labour Relations Act was amended in 2012. Some of the amendments in the Act affected TESs. The amendments with regards to TESs were aimed at providing better protection for these employees in order to prevent the abuse of TES employees. In August 2014 the Employment Services Act 4 of 2014, came into force. The act regulates the employment services in the republic, this includes TES. There are many problems associated with the TESs practice such as low wages and lack of protection from unfair dismissals. These problems amongst others have been the reason why some people are opposed to the use of TESs. Trade union (including COSATU) have called for the ban of the practice as they viewed it to be similar to slavery. In 2007 the Namibian government banned the TESs practice as the practice was seen as being similar to slavery. This ban was however later uplifted by the Namibian Supreme Court which held that that banning the practice infringed on the TESs’ right to freedom of trade or occupation. Namibia will be discussed in this dissertation as a guideline to whether a ban would be an effective solution to the problems associated with the TESs industry and whether a ban would be constitutional. This thesis examines the effect that the Employment Services Act and Labour Relations Act will have on the TES industry. It identifies the problems associated with the labour broking practice and examines whether the above mentioned legislation acts as solutions for these problems. The thesis will also discuss the possible loopholes in the legislation and aims to provide solutions to these loopholes.