Construit autour du contrat de travail, le droit du travail s’appuie sur une relation bilatérale entre l’employeur et le salarié. Le prêt et la fourniture de main-d’œuvre perturbent cet équilibre parce que la force de travail du salarié bénéficie à un tiers au contrat de travail. La méfiance originelle s’est traduite par deux prohibitions de principe pénalement sanctionnées : le marchandage et le prêt illicite de maind’œuvre. L’évolution du marché économique a contraint le législateur à dépasser la seule répression pour envisager la légalisation et l’encadrement de mises à disposition de plus en plus variées. Ces nombreux à-coups législatifs, en l’absence de revalorisation des incriminations, remettent en cause l’efficacité de la prohibition pénale. Le droit pénal est-il encore adapté pour lutter contre les dérives des prêts et fournitures de main-d’œuvre ? Si l’encadrement répressif actuel et sa mise en œuvre sont critiquables, la dépénalisation « sèche » n’est pas pour autant la seule solution. / Built around the employment contract, labour law is based on a bilateral relationship between an employer and an employee. The leasing and subcontracting of labour force disrupt this balance because the employee's labour force benefits a third party to the employment contract. The original mistrust resulted in two criminally sanctioned prohibitions: illegal subcontracting and illegal labour leasing. The evolution of the economic market has forced the legislator to go beyond repression alone and to consider the legalization and supervision of more and more types of manpower leasing. These numerous legislative interventions, in the absence of the revalorization of the incriminations, question the effectiveness of the criminal prohibition. Is criminal law still suited to fight against the excesses of labour leasing and subcontracting? Although the current repressive framework and its implementation are open to criticism, decriminalization alone is not the only solution.

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The use of temporary employment services as a means to achieve flexibility in die labour market led to various complications due to a lack of proper regulation. The atypical formation of the triangular employment relationship, limited rights and less favourable employment conditions of the temporary employees, multiple authority figures and their liabilities under various circumstances and the impact thereof on such employee’ collective bargaining rights caused legal uncertainty in the absence of sufficient legislation to govern it. Temporary employment agencies developed certain methods in order to evade the restrictive labour legislation and employer duties imposed on them, namely by making use of automatic termination clauses (resolutive conditions) and by categorising the temporary employee as an independent contractor. Last mentioned would effectively exclude the temporary employee from labour legislation and the protection it provides. In reaction to abovementioned problems, trade unions have been objecting to the use of temporary employment agencies and went as far as demanding the total ban thereof. This raised the question in the South African Government whether said agencies should indeed be banned. The other option is a less restrictive approach and entails the attempt to regulate these agencies by amending the current labour legislation in order to accommodate temporary employment services. In light of the fact that various proposals to amend the current South African labour legislation (especially with regard to temporary employment services) have been published in the Government Gazette, it can be deduced that the social partners ultimately chose to regulate temporary employment agencies rather than ban them altogether. From an early stage the International Labour Organisation (ILO) provided rules and regulations for the management of employment agencies in general by way of conventions and recommendations. In 1997, in order to give effect to the labour standards identified by it, the ILO brought the Private Employment Agencies Convention into existence. This document could be applied to all temporary employment agencies on an international level. This document provides for administrative regulations, the duties of the agency and the client as well as the rights of the temporary employees concerned. The ILO recommends that all of its member states incorporate the principles contained within this document in their own legislation. Temporary employment services are also used in other legal systems. For purposes of this study, the English law (United Kingdom (UK)) and the Namibian law will be scrutinised. Similar issues to those recognised in the South African law have been identified in these countries. However, each has approached said problems in different ways. The Namibian Government banned the conducting and provision of these services by way of legislation in 2007. The constitutionality of the ban has however been questioned by the Supreme Court of Namibia, after which it had been found to infringe upon the fundamental freedom to carry on any business, trade or occupation. The ban was struck down as unconstitutional. The Namibian Government has since promulgated new legislation in which it removed the ban and replaced it with numerous amendments providing for the regulation of temporary employment services. Since 1973 the UK has been promulgating various instruments for the thorough regulation of temporary employment agencies. These instruments provide for the management of temporary employment agencies and the rights of the employees involved. The relevant legislative instruments have been updated regularly with the purpose of ensuring that the needs of all the parties concerned are met. The UK, as a member state of the European Union (EU), (which has also been providing for the regulation of temporary employment services in various directives), promulgated legislation specifically with the aim to give effect to the principles in the mentioned directives. By way of doctrines and the creation of a third category ―worker‖ the UK has been attempting to prevent any loopholes in their legal system with regard to temporary employment services and the rights of the employees involved. The aim of this study is to investigate all the important complications experienced with temporary employment agencies in order to indicate the impact the atypical circumstances have on the rights of the temporary employees. The degree to which, if at all, the South African law complies with the preferred labour standards identified by the ILO will be pointed out. A comparative study will be conducted, first by ascertaining in detail how the comparable issues in the UK and Namibian law are dealt with, and second by identifying which aspects in these legal systems could be of value to the South African law. Finally the potential effectiveness of the proposed amendments to the South African labour legislation will be analysed, during which recommendations for the unresolved issues will be provided. The recommendations are mainly aimed at achieving sufficient rights and legal certainty for the temporary employees associated with temporary employment agencies. / Thesis (PhD (Law))--North-West University, Potchefstroom Campus, 2013.

The use of temporary employment services as a means to achieve flexibility in die labour market led to various complications due to a lack of proper regulation. The atypical formation of the triangular employment relationship, limited rights and less favourable employment conditions of the temporary employees, multiple authority figures and their liabilities under various circumstances and the impact thereof on such employee’ collective bargaining rights caused legal uncertainty in the absence of sufficient legislation to govern it. Temporary employment agencies developed certain methods in order to evade the restrictive labour legislation and employer duties imposed on them, namely by making use of automatic termination clauses (resolutive conditions) and by categorising the temporary employee as an independent contractor. Last mentioned would effectively exclude the temporary employee from labour legislation and the protection it provides. In reaction to abovementioned problems, trade unions have been objecting to the use of temporary employment agencies and went as far as demanding the total ban thereof. This raised the question in the South African Government whether said agencies should indeed be banned. The other option is a less restrictive approach and entails the attempt to regulate these agencies by amending the current labour legislation in order to accommodate temporary employment services. In light of the fact that various proposals to amend the current South African labour legislation (especially with regard to temporary employment services) have been published in the Government Gazette, it can be deduced that the social partners ultimately chose to regulate temporary employment agencies rather than ban them altogether. From an early stage the International Labour Organisation (ILO) provided rules and regulations for the management of employment agencies in general by way of conventions and recommendations. In 1997, in order to give effect to the labour standards identified by it, the ILO brought the Private Employment Agencies Convention into existence. This document could be applied to all temporary employment agencies on an international level. This document provides for administrative regulations, the duties of the agency and the client as well as the rights of the temporary employees concerned. The ILO recommends that all of its member states incorporate the principles contained within this document in their own legislation. Temporary employment services are also used in other legal systems. For purposes of this study, the English law (United Kingdom (UK)) and the Namibian law will be scrutinised. Similar issues to those recognised in the South African law have been identified in these countries. However, each has approached said problems in different ways. The Namibian Government banned the conducting and provision of these services by way of legislation in 2007. The constitutionality of the ban has however been questioned by the Supreme Court of Namibia, after which it had been found to infringe upon the fundamental freedom to carry on any business, trade or occupation. The ban was struck down as unconstitutional. The Namibian Government has since promulgated new legislation in which it removed the ban and replaced it with numerous amendments providing for the regulation of temporary employment services. Since 1973 the UK has been promulgating various instruments for the thorough regulation of temporary employment agencies. These instruments provide for the management of temporary employment agencies and the rights of the employees involved. The relevant legislative instruments have been updated regularly with the purpose of ensuring that the needs of all the parties concerned are met. The UK, as a member state of the European Union (EU), (which has also been providing for the regulation of temporary employment services in various directives), promulgated legislation specifically with the aim to give effect to the principles in the mentioned directives. By way of doctrines and the creation of a third category ―worker‖ the UK has been attempting to prevent any loopholes in their legal system with regard to temporary employment services and the rights of the employees involved. The aim of this study is to investigate all the important complications experienced with temporary employment agencies in order to indicate the impact the atypical circumstances have on the rights of the temporary employees. The degree to which, if at all, the South African law complies with the preferred labour standards identified by the ILO will be pointed out. A comparative study will be conducted, first by ascertaining in detail how the comparable issues in the UK and Namibian law are dealt with, and second by identifying which aspects in these legal systems could be of value to the South African law. Finally the potential effectiveness of the proposed amendments to the South African labour legislation will be analysed, during which recommendations for the unresolved issues will be provided. The recommendations are mainly aimed at achieving sufficient rights and legal certainty for the temporary employees associated with temporary employment agencies. / Thesis (PhD (Law))--North-West University, Potchefstroom Campus, 2013.