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When a job seeker has been absorbed by a company through a broker-in-hand for a period of more than three months, becomes there the permanent employee of the company, the dismissed worker, or both? In this scenario, they become an employee of the company, according to a ruling made Thursday by the Constitutional Court, which changes the mechanics of the labor brokerage system in South Africa.
For many years, the labor market has been debating labor relations, according to which employees hired for more than three months and earning less than R205,433 a year, are deemed to be employed by both the broker and his clients (companies absorbing jobseekers).
), in particular section 198A (3) (b), which protects marginal and low-paid workers in temporary employment from unfair labor practices, has been challenged by unions, employees and brokers.
This secti The LRA guarantees that an employee who earns less than the stipulated threshold (less than R205 433 per year) and who is engaged by the client of a broker for more than three months is deemed to be permanently employed by this client.
Judge Daniel Dlodlo, who wrote the judgment of the Constitutional Court, said that the language of the LRA section is "simple" and "supports the interpretation of the single employer". In other words, the customers of the labor brokers remain the only employers and the labor brokers are completely eliminated from the equation of employment.
Judgment has a significant impact on the profitability of brokers and the delivery of their services after the expiry of the time limit. month period because much of the SA workforce is employed by labor brokers.
Beginning of the challenge
The subject has been the subject of several legal proceedings since May 2015, Conciliation, Mediation and Arbitration Commission (CCMA) between the labor law broker Assign Services, his client Krost Shelving & Racking, and the employees of the company, represented by the National Union of Metallurgists of SA (Numsa).
in April 2015, all of whom worked full-time for more than three months – which triggered a dispute over the interpretation of section 198A (3) (b) of the LRA.
At the CCMA, Assign submitted that the employees remained their employees and also the employees of Krost. She added that nothing in the LRA prohibits labor brokers after an employee has been absorbed for more than three months. Numsa did not agree, saying that Krost was the only employer and that its dual employer structure creates confusion and uncertainty, and that it harms vulnerable employees .
The CCMA pronounced in favor of Numsa. Assign had the decision of the CCMA reviewed and successfully overturned in the Labor Court, which adopted the interpretation of duplication as the rights of the employees would be protected by this structure.
Numsa appealed to the Labor Court of Appeals. , who has successfully ruled that an employee who has worked for more than three months does not perform any more temporary service and that the client / company for which he works is the only employer.
Assignment appealed the judgment to the Constitutional Court, He added that the decision of the Labor Court "equates to a ban on labor brokerage", even though, adds she, the LRA still allows brokers to offer their services after the three-month period. At the same time, Numsa argued that sections of the LRA do not prohibit labor brokers, but "regulates them only for employees underpaid for less than three months"
The Court Constitutional Court upheld the judgment. Dlodlo stated that a simple reading of paragraph 198A (3) (b) "clearly distinguishes" employees employed by temporary work brokers and those deemed to be employed by the broker-in-hand client. Works when the work is not temporary
. "Dlodlo said the current legislation is appropriate to protect employees against unfair labor practices because they can sue the customer and the broker-in-hand (if there is still a contract between the broker-in-hand and employee) and ensures that employees are fully integrated into the workplace after a period of three months.
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