Friday, 10 August 2018.
The Constitutional Court, TES and Sustainable Workforce Solutions
A consideration of the NUMSA | Assign Services matter and the way forward for stakeholders.
The National Union of Metalworkers of South Africa (NUMSA) welcomes the decision of the Constitutional Court on a judgement which strengthens the rights of temporary workers.
BACKGROUND
The case concerned the interpretation of section 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA) and whether this deeming provision resulted in a “sole employment” relationship between a placed worker and a client or a “dual employment” relationship between a Temporary Employment Service (TES), a placed worker and a client. The Labour Appeals Court set aside the order of the Labour Court and held that a placed worker who has worked for a period in excess of three months is no longer performing a temporary service and the client, as opposed to the TES, becomes the sole employer of the worker by virtue of section 198A(3)(b) of the LRA.
In the Labour Court it was held that a proper reading of the section could not support the sole employer interpretation. It instead held that section 198A(3)(b) created a dual employment relationship, in which both the TES and the client have rights and obligations in respect of the workers. In an appeal, by NUMSA, to the Labour Appeals Court it was found that the sole employer interpretation best protected the rights of placed workers and promoted the purpose of the LRA. The Constitutional court upheld the decision of the Labour Court and this and dismissed the application made by Assign Services with costs.
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