Constitutional Court judgment is not a death knell for labour brokers
The ruling assists in regulating the relationship between temporary employment services and an employee, not doing away with it, writes Brian Msimanga
Section 198A(3)(b) of the Labour Relations Act (LRA), simplistically put, means an employee who earns less than the stipulated threshold and is contracted through a temporary employment service (TES) — or labour broker — to a client for more than three months, is deemed to be indefinitely employed by that client. However, until the case of Assign Services versus the National Union of Metalworkers of SA (Numsa), TESs and trade unions had been at loggerheads over what this means in practice. TESs have contended that Section 198(2) and 198A(3)(b) of the LRA gives rise to a dual-employment relationship where a placed employee is deemed to be employed by both the TES and the client. Trade unions have always contended that it creates a sole-employment relationship between the employee and the client for the purposes of the LRA, as the two provisions were mutually exclusive. On 27 July 2018, the Constitutional Court held that the purpose of Section 198A must be contextualised within the ri...
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