So, I have two bosses?
A worker, placed at a client by a
labour broker, has two employers, once he has worked for the client for more
than three months.
In a
recent Labour court decision, the court in Assign
Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
others [2015] JOL 33875 (LC), had to decide on the legal
effect of the changes effected by sections 37 and 38 of the Labour Relations
Amendment Act 6 of 2014 to section 198 and 198A – D of the Labour Relations Act
66 of 1995. The amendment addresses the relationship between a labour broker or
Temporary Employment Service (“TES”), the workers it engages and the client
with whom they are placed. Pivotal to the amendment is a deeming provision that
makes a worker an employee of the client, three months after placement.
The question facing the Court was
whether the TES continues to have a relationship with the worker and, if so,
whether the relationship would remain as one of employment. The applicant was a
TES and the third respondent was a trade union taking an opposing stance on the
issue. The applicant contended that once a placement occurs, the client becomes
invested with the rights and obligations that, by operation of the Labour
Relations Act 66 of 1995, accrue to an employer and, since the TES has in no
sense been deprived of its status as employer, the two relationships then
operate in parallel.
Held that
there appeared to be no reason, in principle or practice, why the TES should be
relieved of its statutory rights and obligations towards the worker, because
the client had acquired a parallel set of such rights and obligations. The
worker, in contracting with the TES, became entitled to the statutory
protections that automatically resulted from his engagement. There seemed to be
no public policy considerations relating to why he should be expected to
sacrifice them because the TES had found a placement with a client, especially
since the designation of the client was within the sole discretion of the TES.
