24 July 2017
Article republished courtesy of CAPES

On 10 July 2017, the Labour Appeal Court handed down its Judgment in the Assign Services matter. This relates to the latest stage of legal action taken to gain certainty about the interpretation of the LRA amendments, particularly clause s198A commonly known as the “deeming provision”.

Essentially, the interpretation of what happens to a flexible worker, earning less than the BCEA threshold (R205 433 per annum), who is employed by a Temporary Employment Services (TES) and placed on site at a client organisation, once the three-month period expires. This will be decided by the Constitutional Court.

To assist in clarifying the status quo, please find below some of the most Frequently Asked Questions and the answers.

Q: If the LAC Judgment overturns the previous dual employment interpretation, does this mean that any TES employees employed longer than 3 months now transfer as permanent employees of the client?

No. It is business as usual.

It is now a matter of public knowledge that the legal team has been instructed to file an application for leave to appeal to the Constitutional Court. This will be done within the three-week period contemplated in the rules.

In terms of s18(1) of the Superior Courts Act, the noting of an application for leave to appeal has the effect of suspending the decision which forms the subject matter of that application. Accordingly, the noting of the appeal will have the effect of the status quo remaining until the Constitutional Court finally determines the matter.

Whilst there is still a legal matter of interpretation to be decided, i.e. whether a single or dual employment relationship exists, the TES employee remains after 3 months.

All usual employment processes continue in respect of managing timesheets, payroll and other operational elements. Please liaise with your TES representative in this regard.

Q: How long will this Constitutional Court challenge process take?

Whilst it is impossible to say exactly how long this process will take, it is the opinion of our legal team that it could take up to twelve (12) months. We will continue to keep the industry informed of progress. Please follow our blog on the CAPES website www.capes.org.za

Q: Which TES employees could be affected by this after the Constitutional case has been heard?

Only employees earning below the BCEA threshold, currently R205 433 per annum, and who are placed on an assignment for more than 3 months could be affected.

Q: Is there any difference if we are within a Bargaining Council?

In accordance with LRA s198A(1)(c) the Bargaining Council (or sectoral determination) agreement would
take precedent. We recommend that you review the existing agreement in relation to the management of
TES workers placed within the sector.

Q: What happens in the event of any unfair labour practice?

All employees, including TES employees, are protected by existing labour legislation. As has been the case since 2010, any TES employee who experiences unfair labour practice, including unfair dismissal, is entitled to lodge a case with the CCMA.

Q: Would Industrial Action be allowed in terms of this issue?

No.

As this is currently a matter of interpretation, any industrial action relating to this issue would be unprotected. As a result, participation in an unprotected strike could lead to disciplinary action and potentially to termination of employment.

Q: How can we find out more detailed information?

The Confederation of Associations in the Private Employment Sector (CAPES) represents the private
employment services sector, including temporary employment services, and is actively involved in the process
of achieving legal clarity on the LRA amendments. Regular updates are published on the CAPES website www.capes.org.za