A critical analysis of temporary employment services in terms of current legislation.
Naidoo, Shalina Sinanin.
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This paper focuses on the protection of vulnerable employees in South Africa, especially in regard to Temporary Employment Services (hereinafter referred to as “TES”). The protection of employees against unfair labour practices is crucial for job security. ¹According to Odeku, “decent work and decent conditions of employment are components of sustainable socio-economic development frameworks around the world.” ² However, according to Van Eck, “over the past two decades, business owners in South Africa have increasingly sought to ‘externalise’ the traditional full-time, permanent, employer-employee relationship into a triangular labour broker connection” ³ and “this [is done] when [TESs] make employees available to [clients] (third parties) and the client assigns duties to the employee and also supervises these services.” ⁴ The tripartite relationship involving the TES is regulated by s 198 of the Labour Relations Act⁵ (hereinafter referred to as “LRA”). A TES is defined as a person who for reward, provides to a client, persons to render services to or to perform work for the client and obtains remuneration from the TES. ⁶ This triangular relationship is established by an employment contract (which forms the basis of the employment relationship) and a commercial contract between the TES and the client.⁷ In terms of this relationship, the employee provides his or her services to a client, and such relationship is then regulated by a commercial contract between the client and the TES.⁸ Van Eck stipulates that in such a case, the TES entering into an employment contract with the employee administers the payroll and deducts taxes from the employee’s remuneration and “the commercial agreement usually incorporates a clause that such agreement will continue only for as long as the client needs the services of the employee”.⁹ Thus there is no contractual relationship between the client and the employee, even though the client supervises the services of the employee.¹⁰ The Labour Relations Amendment Act 6 of 2014 (hereinafter referred to as the “LRAA”) came into effect on the 1 January 2015 and made changes to the law relating to the regulation of tripartite relationships. The amendments to s 198 will be discussed in this dissertation and in particular, there will be an analysis pertaining to whether these changes provide adequate protection to vulnerable employees engaged by TESs.