3 July 2015 by

Cliffe Dekker Hofmeyr intends to approach the Labour Court regarding ruling on the deeming provision

Cliffe Dekker Hofmeyr's employment lawyers will approach the South African Labour Court to review a decision made by the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) on the 26th of June 2015.  The decision concerns the two approaches taken when determining the employment relationship of employees of Temporary Employment Services. 

Hugo Pienaar, Director the Employment practice at Cliffe Dekker Hofmeyr, explains, "The amendments to section 198A of the Labour Relations Act deal with the deeming provision and as such has led to two main interpretations namely; the Sole Employer Approach and the Dual Employment Approach in respect of employees who earn below the threshold stipulated in the Basic Conditions of Employment Act, and who perform work for a period exceeding three months."

Joloudi Badenhorst, Candidate Attorney in the Employment practice explains that in terms of the Sole Employer Approach, TES employees who are not performing temporary services for the client of the TES, become the employees of the client and the client becomes the only employer of the TES employees.  This approach suggests that when performing work for a period exceeding three months, the employees are transferred to the client and that the TES is removed from the employment relationship.

Badenhorst notes further, "In terms of the Dual Employment Approach, the Deeming Provision, read together with section 198(4) and 198(4A) of the LRA, creates a dual employment relationship (for the purposes of instituting legal proceedings and executing same in certain instances only) and the employees therefore have two employers in this regard, the TES and the client.

Pienaar says it is these two approaches that were placed at the forefront of NBCRFLI in order to establish the identity of the true employer of the TES employees.

"The NBCRFLI ruled that employees who are not performing temporary services for the client of the TES, become the employees of the client only and any claim brought by the employees in terms of the LRA must be brought against the client.  The NBCRFLI therefore favours the Sole Employer Approach.

"The Ruling is subject to scrutiny due to the fact that it suggests that the TES is removed from the employment relationship after the three month period and effectively banned. This infringes the TES's constitutional right to choose their profession freely and nothing in the amendments to the LRA suggest such a ban on TES.  Other impractical implications arising from such an approach includes the fact that the joint and several liability, as well as the equality provisions in the LRA will become superfluous.  This goes against the proximate reason for the amendments to the LRA.

"It is for this reason that we will approach the Labour Court to have the decision reviewed," adds Pienaar.

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