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STAFFING INDUSTRY LEGAL CHALLENGE ON LABOUR RELATIONS ACT “DEEMING” PROVISION

25 March 2015   (0 Comments)
Posted by: Mpho Maseko
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STAFFING INDUSTRY LEGAL CHALLENGE ON LABOUR RELATIONS ACT “DEEMING” PROVISION

Dear Member,

At a recent CAPES meeting APSO, together with several other Industry role players, unanimously decided that the time has arrived to approach the Court to obtain a Declarator on the interpretation of the “deeming” clause in the Labour Relations Amendments Act (applicable from 1 January 2015).

The CCMA and Government appear to interpret the clause to mean that assignees/temps transfer permanently to the client after the 3-month period. We do not believe that this is the correct interpretation. The Industry obtained a number of legal opinions, including senior legal counsel, which support our stance on the deemed provision.  

The question whether or not to go to Court was discussed 8 months ago and a “wait and see” approach was taken. However, due to the current situation facing many members and their clients, and the resulting confusion being created, it has been decided that the time has come to challenge this incorrect interpretation in a co-ordinated manner.

In the event that we lose in the Labour Court, we will then take it to the Labour Appeal Court and eventually, if necessary, to the Constitutional Court.

This is the biggest challenge that we as an Industry have embarked on and will require much effort. It is likely that the case will be vigorously defended from other quarters, especially organised labour.

We therefore call on you our members to stand together and support this cause – financially and in practice, including PR, support services and others – to ensure the survival and longevity of our business models and, indeed, the Staffing Industry.

The Industry, through its advocacy and lobbying arm CAPES, has mandated Jonathan Goldberg to proceed in this matter.  The process of ensuring that this very complicated issue is approached and scoped correctly to ensure the best possible outcome is currently underway. Should there be any queries in this regard, please do not hesitate to contact Jonathan Goldberg on info@capes.org.za.

JOB LOSS BAROMETER

The Labour Relations Amendments Act (applicable from 1 January 2015) has had unintended consequences on the flexible job market. In particular, the numbers of temporary jobs lost due to the "deemed provision".        

As an Industry, we would like to compile data on job losses being experienced due to the related new legislation. The Job Loss Barometer aims to encapsulate those contracts that have been affected in the run up to 1 April 2015, so that this information can be utilised to strengthen our case and highlight the inadvertent consequences of the legislation.

A Job Loss Barometer has been created that provides the consolidated/cumulative number of jobs that have been lost as a direct result of this legislation. To access the Job Loss Barometer, please click here.

To assist, please provide urgently the following information (as a minimum):

·         Contract affected (not necessarily the client’s name although at least the industry/sector) and ideally how long this contract has been in place

·         Number of temporary employees on site (that you manage)

·         Number that have been affected; and nature of the change in employment status;

·         Taken on directly by the client

·         Contracts terminated

·         If appropriate, reasons that the client has made the decision (expressly as a result of the changes, business needs, fear of the uncertainty, etc.)

 

Please note that information will be held in confidence and only shared in a consolidated/cumulative format as part of the Job Loss Barometer.

 Click here to begin the survey. 

 


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