Temporary Employment Service

By Ruben Opperman.

This opinion piece is not to criticize the already fully debated, arbitrated, and adjudicated Section 198 relating to Temporary Employment Services. It is however giving an opinion on administrative measures when and where who needs to be sited in the CCMA or bargaining councils.

It is by now clear that with the Assign case that Labour broking as a business enterprise and of which a lot of people were able to find work, were destroyed to a big degree.

It does however seem that big business-like SASOL/ESCOM still rely on a big amount of temporary labour which is still provided via TES businesses.

The question now arise who do you negotiate with? Who do you declare a dispute against? Where do you strike? Is the Labour Relations Act written so wide that anyone can decide?

When looking at Section 198 Of the Labour Relations Act[1], it seems to be quite a lot of information to work through, however this opinion only deals with who is the responsible party/employer when Unions get involved? Or for a matter of fact who is the responsible employer after the initial 3-month employment period?

Does the Temporary Employment Service have any place as an employer after the 3 months? Or is the Temporary Employment Service merely an agent appointed to deliver certain Human Resources functions for the employer?

In a reported case Inqubelaphambili Trade Union obo Kekana and Others/ Amrod Corporate Gifts & Clothing and another – (2022)31 ccma 8.28.2 also reported at [2022] 7 BALR 729 (CCMA).[2] It was reported that the dispute in front of the commissioner was relating to the employees of the TES after three months had become permanent Employees of the client. The Commissioner held that due to the previous well-known Assign case that the Act does not make provision for a dual relationship (a slave cannot serve two masters).

Does this now mean that the relationship between the TES and its client lapses after three months? I would say no as the Assign case only closed the gap where certain employers were abusing TES employers in not complying with fair labour practices. The Labour Relations Act do make provision for disputes to be raised either to one or to both. The question arises who do you site in labour disputes?

The Act makes provision that the employee will be the employee of the TES for a period of three months and then the deeming provision will then make the employee deemed to be the employee of the client. In the event of the triangular relationship still existing then the disputing party will have to lodge both parties in the dispute.

The TES only becomes the administrative employer and the client the responsible employer.

Source Reference:

[1] Labour Relations Act no. 66 of 1995 Sec 198D to sec 198D

[2] Inqubelaphambili Trade Union obo Kekana and Others/ Amrod Corporate Gifts & Clothing and another –