![]() ![]() Irrespective of the merits of the different views, we now have legal certainty: S198A(3)(b) of the LRA supports the sole employer interpretation, altering the employment contract between a TES and worker created by s198(2). Cachalia AJ concluded that the dual employer interpretation provided greater protection for lower paid workers in line with the purpose of section 198A(3)(b), and for these reasons would have upheld the appeal. Whilst the majority judgment decides the matter, in a dissenting judgment Cachalia AJ found that the dual employer interpretation was correct, as the LRA does not expressly state that the TES would cease to be the employer after three months. The majority found that the language used in s198A(3)(b) supports the sole employer interpretation. The majority found that for the first three months the TES is the employer and then subsequent to that the client becomes the sole employer. The Constitutional Court in a majority judgment held that the purpose of section 198A must be contextualised within the right to fair labour practices in section 23 of the Constitution and the purpose of the LRA as a whole. The matter was then referred to the Constitutional Court. The LAC set aside the LC order 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 becomes the sole employer of that worker. In an appeal by NUMSA to the LAC, it was found that the sole employer interpretation best protected the rights of placed workers and promoted the purpose of the LRA. The CCMA supported NUMSA's sole employer interpretation, but the Labour Court held that s198A(3)(b) created a dual employment relationship, in which both the TES and the client have rights and obligations in respect of the workers. Assign Services' view was that s198A(3)(b) created a dual employer relationship involving it and the client, while NUMSA contended that the employees' sole employer was Assign Services as a result of this section. The placed workers provided services to Krost for a period exceeding three months and on a full time basis. In 2015 Assign Services, a TES, placed 22 workers with Krost Shelving and Racking (Pty) Limited, a number of whom were members of NUMSA. The triangular relationship then continues for as long as the commercial contract between the TES and the client remains in force and requires the TES to remunerate the workers.Īmendments to the LRA in 2014 limited the use of temporary employment services (TES) or labour brokers as they are commonly known, through a new s198A. This is not a transfer to a new employment relationship but rather a change in the statutory attribution of responsibility as employer within the same triangular employment relationship. Section 198A(3)(b) of the LRA supports the sole employer interpretation, altering the statutory employment contract created by Section 198(2).
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