Many employers make use of Casual Labour, Labour Brokers and Temporary Employees but what is a casual Labourer and what type of relationship exists between the Labour Broker, the Client and the temporary employee.
Casual Labourers were only referred to in the old Basic Conditions of Employment Act of 1983 and the new act makes no mention of the terms at all however it can generally be understood that casual labourer is anyone employed on a part time or temporary basis
It is of the utmost importance to note that anyone who works more than 24 Hours a month is subject to the Basic Conditions of Employment Act 75 of 1997, the BCEA, and subsequently the principles of the BCEA will be applicable to these employees and a casual labourer whom exceed this 24 hour threshold will have the same rights as any other “normal employeeS”.
In addition to the above a very recent Constitutional Court Ruling has made waves in the environment of Labour Broking and temporary Employee Services, this is not to be confused with casual labour as briefly described above as Labour Brokers are generally larger companies the “Temporary Employment Service of “The TES” providing labour services to other businesses, “The Client”.
The Ruling made by the Constitutional Court in Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others dealt with the interpretation of Section 198A and more specifically the interpretation of S198A(3)(b) of the Labour Relations Act 66 of 1995.
Section 198A(1) – (3) states:
“198A. Application of section 198 to employees earning below earnings threshold.—
1) In this section, a “temporary service” means work for a client by an employee—
(a) for a period not exceeding three months;
(b) as a substitute for an employee of the client who is temporarily absent; or
(c) in a category of work and for any period of time which is determined to be a temporary service by a collective agreement concluded in a bargaining council, a sectoral determination or a notice published by the Minister, in accordance with the provisions of subsections (6) to (8).
(2) This section does not apply to employees earning in excess of the threshold prescribed by the Minister in terms of section 6 (3) of the Basic Conditions of Employment Act.
(3) For the purposes of this Act, an employee—
(a) performing a temporary service as contemplated in subsection (1) for the client is the employee of the temporary employment services in terms of section 198 (2); or
(b) not performing such temporary service for the client is—
(i) deemed to be the employee of that client and the client is deemed to be the employer; and
(ii) subject to the provisions of section 198B, employed on an indefinite basis by the client”
It is also important to note that this section deals with employee currently earning below the threshold which is R 205 433.00per annum
The Constitutional Court, when interpreting S198A(3)(b) found that an employee whom has been in the service and employment of the client of a labour broker for a period of more than 3 months become the exclusive employee of the client and no longer that of the Labour broker.
This means that an Employee who’s services are obtained through a labour broker and whom renders his or her services to the client for longer than 3 months becomes the employee of the client by operation of law and no dual employment relationship exists as the employment shifts from the Labour Broker to the Client.
The next question to answer is what are the implications of this shift of employment from the labour broker to the client. Section 198A (5) gives clarity and states:
“(5) An employee deemed to be an employee of the client in terms of subsection (3) (b) must be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment.”
The above simply means that the employee is to be afforded the same rights and privileges as all other employees of the client, which includes but is not limited to career development, training, pensions, employee perks, etc as he or she is now an employee of the client.
The above has been hailed as a great victory for labour in South Africa and a major new development in the world of Labour Broking which significantly affects that industry as a whole as it now levels the playing field where in the past temporary employees were treated generally less fairly than permanent employees and may have rendered the same services for a lesser remuneration and this judgement changes this completely.Written by : Jean Vermaas (B.Com Law; LL.B; LL.M)
 (CCT194/17)  ZACC 22;  9 BLLR 837 (CC); (2018) 39 ILJ 1911 (CC); 2018 (5) SA 323 (CC); 2018 (11) BCLR 1309 (CC) (26 July 2018)