The “new” employment relationship created to protect vulnerable temporary employees : a legal analysis of case law

LL.M. (Labour Law)Abstract: In modern commercial practice, including in South Africa, production has been restructured largely due to globalisation, deregulation of the labour markets and technological advancements which are underpinned by the economic imperative of cutting costs. The non-standard work arrangements provides benefits to employers as they increase flexibility in terms of the number of permanent employees and configuration of skills available and the ability to increase or decrease the size of the workforce relative to the demands of production. For the employee the disadvantages of non-standard work arrangements include an increase in worker confusion and lack of clarity as to who is the employer of a temporary worker between the client and a TES. The aim of this minor dissertation is to examine the “new” employment relationship created to protect temporary employees with an emphasis on case law. The methodology utilised for this research is both desktop and library based. The Labour Relations Amendment Act of 2014, which came into effect on 1 January 2015, amended section 198 and introduced section 198A to provide further protection for employees employed in non-standard work arrangements. Both sections 198A(3)(b) and 198(2) of the LRA are deeming provisions or a legal fiction. That is irrespective of what the actual employment relationships are, in law the client is the employer when the circumstances described in section 198A(3)(b) of the LRA prevail and when the circumstances described in section 198(2) of the LRA prevail, a TES is the employer of a temporary worker. Both deeming provisions in sections 198A(3)(b) and 198(2) of the LRA cannot operate at the same time. Accordingly, the correct interpretation of section 198A(3)(b) of the LRA, is that only the client is the only employer of the worker placed by a TES and this construction (sole employer) is consistent with the legislature’s intention to restrict employment of more vulnerable, lower-paid workers by a TES, to situations of genuine and relevant temporary work