The constitutionality of the contracts of labour brokers in South Africa
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A temporary employment service (hereafter TES), also referred to as a labour broker is defined as a person or entity that provides workers to others, (their clients) to perform duties for the benefit of the client for compensation. The Labour Relations Act 66 of 1995 makes legal provision for a TES to exist. A threefold relationship between the TES and the client, and the TES and the worker is created. In this dissertation the relevant sections of the Labour Relations Act are examined and the agreements and the consequences that flow from the relationship that is created by this threefold relationship are discussed. The situation often occurs where workers are informed that their services are no longer required on a client’s site. No procedures for dismissals or retrenchment are followed. The worker is then under the impression that he or she has been dismissed. When the matter is referred to the Commission for Conciliation Mediation and Arbitration for adjudication, the client is cited as the employer. The application is then dismissed as the client is not the employer. The worker only has recourse against his employer, being the TES, and not a third party. This then leaves the worker confused and frustrated. Employees of TES typically work longer hours and are also underpaid. TES and their clients escape labour obligations and standards as their contracts allow for this. The question that arises is whether this situation is fair to the employees that are being subjected to this type of treatment which is justified by the contracts between the TES and the client, and the TES and the worker. The relationship is weighed against the provisions of the Constitution and the common law requirements for a lawful contract. A comparison with international standards as well as the legal position of TES in other countries is done to establish whether employees of TES in South Africa are treated fairly. The position will be studied further by examining the findings of courts and tribunals. Courts have begun to intervene and in decisions, that are discussed in the dissertation, the courts have found that the clauses in the contracts between the TES, its clients and the workers that allow for the “automatic dismissal” without having to follow the prescribed steps, are regarded as against public policy. It has also found that TES are not permitted to contract out of their obligations. The South African Government has introduced proposed amendments to the current labour legislation. These proposed amendments and the effect thereof on TES is studied to determine whether it will better the current issues experienced with TES. Trade unions in South Africa articulate their opinions regarding TES and push for the banning of the practice. The situation is more complicated; however, as a large number of people in South Africa are employed by TES and the TES assist them in finding work. When the situation is examined on the background of international standards, the ILO and the rights that are guaranteed to everyone in the Constitution, 1996, a complete ban will not be feasible as it will have an enormous effect on the South African employment sector. Regulation of the practice of TES is suggested as the most practicable solution to the problems that flow from TES contracts. The suggestion is that the clauses permitting the unlawful treatment of employees are deleted and sanctions for non–compliance with labour standards are implemented.
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