Probe leader: Judge Ray Zondo’s powers in the state of capture inquiry have been proclaimed in line with the former public protector’s recommen-dations. Picture: SIMPHIWE NKWALI
Probe leader: Judge Ray Zondo’s powers in the state of capture inquiry have been proclaimed in line with the former public protector’s recommen-dations. Picture: SIMPHIWE NKWALI

Labour brokers have argued that removing them from the employment equation when temporary workers are transferred on to permanent contracts would trample on the rights and protections of vulnerable employees.

The Constitutional Court heard on Thursday that if it decided against the appeal application by labour brokerage firm Assign Services to be declared dual employers when temporary employees were absorbed into clients’ companies, the workers’ right to choice and protections guaranteed by the Labour Relations Act would be jeopardised.

The case, which was originally heard at the Commission for Conciliation, Mediation and Arbitration and later referred to the Labour Court in 2015, is interrogating the interpretation of section 198a of the Labour Relations Act.

The section came about as a result of an amendment to the act. According to the amendment, labour brokers can only place qualifying workers in temporary contracts for three months, following which clients must absorb the workers and offer permanent contracts.

The respondent’s submission is a patronising intervention which denigrates the dignity of the employee
Wim Trengove

Although it was formulated to protect vulnerable workers who were perpetually employed on a temporary basis and denied benefits by labour brokers, the change to the law has been hotly debated by employment law experts, human resources practitioners and unions, as temporary employment services fight to hold on to their commercial contracts with clients.

The argument is centred on the intended meaning of the legislation when it stated that a worker employed through a labour broker is deemed to be the employee of a client.

Deputy Chief Justice Raymond Zondo said there must have been a reason why the statute stated that after the three months lapsed, the terms and conditions applicable to contract employees should be no less favourable than those applicable to the employees of a client.

Wim Trengove SC, for Assign Services, told the court that while he accepted that some labour brokers were unscrupulous, it could not be assumed that the benefits offered by brokerage firms would be duplicated by clients once the latter absorbed temporary workers.

"The respondent’s submission is a patronising intervention which denigrates the dignity of the employee. It says even if you have not exercised choice, the law will decide you lose your protected relationship with the labour broker and you are now given a substitute relationship with the client," Trengove said.

The National Union of Metalworkers of SA (Numsa), whose members were employed by Assign when the law came into effect, said maintaining labour brokers in the employment equation would cause confusion for workers.

Hans van der Riet SC, for Numsa, argued that vulnerable employees covered in the section could be abused by the triangular relationship if it is maintained. "That is why the unions are so unhappy. That is what common cause is," he said.

The Constitutional Court reserved judgment.

mahlakoanat@businesslive.co.za