The amendments to s198 of the Labour Relations Act, No 66 of 1995 (LRA) have had a profound effect on the manner in which Temporary Employment Services (TES) conduct their business.
Section 198(4F) of the amended Act introduced the requirement that “no person must perform the functions of a temporary employment service unless it is registered in terms of any applicable legislation”. Although the amendments came into effect on 1 January 2015 there has been slow progress in finalising the regulations for the registration of TES. The pace does however appear to be picking up.
On 5 December 2018, the Department of Labour published Draft Regulations on the Registration of Private Employment Agencies and Temporary Employment Services (Draft Regulations). The opportunity for public comment on the content of the Draft Regulations closed on 28 February 2019.
The Draft Regulations require that any Private Employment Agencies (PEA) and TES register with the Department of Labour. The Draft Regulations require that PEA and TES must provide the following information and documentation as part of the registration process:
- Particulars of the PEA or TES, including its name, the type of entity it is and its business address.
- An institutional registration certification, such as a CIPC certificate.
- A SARS tax clearance certificate.
- A Letter of Good Standing from the Compensation Fund proving that the PEA or TES is registered with the fund.
- A police clearance certificate.
- An employer registration certificate from the relevant bargaining council, if applicable.
- Proof of payment of the Department of Labour’s registration fee.
The Registrar is required to decide on a registration application within 60 days of receipt of the application. If a registration application is unsuccessful, the Registrar must provide the applicant with reasons for the unsuccessful application.
If an application is unsuccessful because of a failure to submit any document, the unsuccessful applicant may resubmit its application within 30 days on receipt of the notice from the Registrar with the omitted information included.
A certificate of registration is valid for three years. If a PEA has already registered as a PEA business with the department of labour in terms of the Skills Development Act 97 of 1998 (SDA), the PEA does not have to re-register itself in terms of the Draft Regulations as the PEA is deemed to be registered.
If a PEA conducts the business of both a PEA and TES, the PEA must apply for registration within two years of the Draft Regulations coming into effect or before the expiry date of its existing certificate, whichever comes first.
If a PEA that is registered under the SDA does not provide temporary employment services, it must apply for registration within three years of the Draft Regulations coming into effect or before the expiry date of its existing certificate, whichever comes first.