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HUGE VICTORY FOR THE TES INDUSTRY – RELIEF FOR BUSINESS

Posted By APSO, 14 September 2015
Updated: 11 September 2015

HUGE VICTORY FOR THE TES INDUSTRY – RELIEF FOR BUSINESS

The decision by the Labour Court on the interpretation of the newly amended Labour Relations Act on Tuesday, 8 September 2015 – ‘test’ case: Assign Services v CCMA and others – has brought optimism for stability to businesses, temporary workers and the Temporary Employment Services (TES) industry who have witnessed job losses and the folding of businesses during this time of uncertainty.



This is according to the Vice President of the Federation of African Professional Staffing Organisations (APSO), KC Makhubele who notes that all parties now have hope of ensuring the continuation of business and improving job opportunities moving forward.

He says, “The uncertainty experienced in the market related to who – the TES organisation or the client employer – is ‘deemed’ to be the employer of TES employees earning less than the earnings threshold (currently R205 433.30 per annum) who have been placed at the client for more than 3 months.”

Setting aside the previous ruling – by the CCMA Arbitrator – that the client organisation is the sole employer of TES employees after three months, the Labour Court’s judgement was that “deeming” should be interpreted as an augmentation rather than a substitution, and that the client organisation is a concurrent employer rather than the sole employer.

Acting Judge Martin Brassey found the following, amongst others:

  • The TES remains the employer of its employees, beyond the three month period;
  • The extension of the “deeming” provision is sufficient, only as far as extra protection of rights of TES employees in terms of the Labour Relations Act only;
  • Nothing in the law states that TES is to be substituted by client after the three month period;

  • The client is a concurrent employer for the purposes of the Labour Relations Act as both parties need to ensure compliance with the Labour Relations Act;

  • The principle of “triangular employment relationship”, as per the original section 198, remains, and so does the substance of the intention of the legislature;

  • TES placed employees have an election (only when there’s a dispute relating to rights under the Labour Relations Act) to prosecute such against either TES or client; and

  • The CCMA Commissioner made material errors of law, requiring the Labour Court review.

 

For the full press release, click here

Tags:  APSO  CCMA  deeming clause  deeming provision  hospitality  LRA  LRA Amendments  recruitment  staffing industry  thresh hold  triangular relations 

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