This treatise specifically explores section 198 of the Labour Relations Act, 66 of 1995, which regulate temporary employment service. However, before one can assess this section in particular, other legislation has to be considered dealing with temporary employment services, read in conjunction with the Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter the “Constitution”), as all legislation is subject thereto. As summarised by Navsa AJ in the judgment of Sidumo& Another v Rustenburg Platinum Mines Ltd & Others: “The starting point is the Constitution. Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to fair labour practices”. The Labour Relations Act, 66 of 1995 (hereinafter the “LRA”) is also subject to the Constitution, and section 198 has to be evaluated and assessed against the Constitution as is set out in section 1 of the LRA, which provides that: “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution...” The LRA was drafted while the Interim Constitution was in effect, this being the reason why section 1(a) refers to section 27 of the Constitution, the Interim Constitution, and not the final Constitution, which was enacted in 1996. The Honourable Justice Conradie held in NAPTOSA & others v Minister of Education, Western Cape & others [2001] 22 ILJ 889 (C): “that the effect of section 1(a) is to ensure that the LRA “[marries] the enforcement of fundamental rights with the effective resolution of labour dispute temporary employment service . . . If an employer adopts a labour practice which is thought to be unfair, an aggrieved employee would in the first instance be obliged to seek a remedy under the LRA. If he or she finds no remedy under that Act, the LRA might come under constitutional scrutiny for not giving adequate protection to a constitutional right. If a labour practice permitted by the LRA is not fair, a court might be persuaded to strike down the impugned provision. But it would, I think, need a good deal of persuasion”. The Constitution and the LRA lay the basis for temporary employment services in the South African law context, and are the primary laws dealing with this topic. Although the main focus of the treatise is section 198 of the LRA in dealing with temporary employment services, it is evident that secondary labour legislation also regulates temporary employment services. It is noteworthy that each piece of legislation has different requirements and/or essentials regulating temporary employment services, even though some of the legislation have very similar provisions. Secondly, each of the pieces of legislation also determines and attaches different meanings to who the real employer is. This is important so as to establish who, as between the temporary employment service and its client, may be held liable for obligations arising out of the employment relationship. A tripartite relationship is created by temporary employment service arrangements, in that there is the temporary employment services –client relationship, the temporary employment service’s employer - employee relationship and the client –employee relationship, each with its own rights, obligations, and requirements for termination. A further focus of the treatise is the problems experienced in the employment relationship between the temporary employment service and its employees and the termination of the relationship. The difficulties and potential unfairness arising from termination of the relationship between the temporary employment service and its employees have resulted in legislative developments and proposed amendments, most notably the repeal of section 198. These proposals are discussed herein, including the question of whether section 198 should be repealed, or whether temporary employment services should be more strenuously regulated in order to resolve the problems being experienced with the application of section 198 in its present form. It is proposed in conclusion that temporary employment services be more strenuously regulated, as the repeal of section 198 will not be socially and economically beneficial to the workforce of South Africa, nor the Labour Market. Further, it would be contrary to the Constitution and purpose of the Labour Relations Act.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10245 |
| Date | January 2013 |
| Creators | Pauw, Julius Bremer |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | vii, 72 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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