31 March 2015 is the final date of the reprieve granted to employers to ensure that they comply with critical provisions relating to Temporary Employment Services (TES) contained in the Labour Relations Amendment Act (LRAA). Employees working for a TES (colloquially known as a labour broker) gain additional rights as from 1 April 2015.
According to Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr, "When it was enacted on 1 January 2015, the LRAA sought to more actively regulate non-standard employment (staff employed through labour brokers and fixed-term contract employees). Labour brokers were granted a three-month period to get their houses in order before their employees earning below the Earnings Threshold (R205 433.30 per year) gained additional rights. As from 1 April 2015, those labour broker employees (with contracts predating 1 January 2015) will be able to claim employment with the labour broker's client unless the work is temporary. In certain instances, this claim may even be for permanent employment with the client."
Botes notes that employers often use labour brokers to provide flexible staffing solutions. The legislature has sought to clamp down on abusive practices by creating, amongst others, a right to equal treatment and employment with the client of the labour broker.
"An employee working for a labour broker, placed to work at the premises of the client of the labour broker, may now dispute disparate treatment meted out to them in comparison with the employees of the client performing the same or similar work. This means the labour broker employee should be treated similarly to the employee of the labour broker's client where both employees (of the labour broker and client respectively) perform the same or similar work. However, where there is a justifiable reason to differentiate in the treatment afforded to the two employees, the labour broker and/or client could escape liability. The legislature recognises that legitimate factors such as merit, length of service, seniority and past performance and workload could justify employees being subjected to different treatment. An employer could thus continue to pay its own staff more than the employees employed by a labour broker, even if both perform the same work, provided the reasons are justifiable," he says.
"Employers and labour brokers are grappling with various interpretations of the employment of the labour broker employee by the client, as envisaged by the LRAA. It remains to be seen how our courts will interpret the legislature's prescript that labour broker employees will be deemed to be employees of the clients in certain instances," he adds.