Case: CHEP South Africa (Pty) Ltd v Shardlow N.O and Other
In the above case, C Force rendered Pallet refurbishment services to CHEP South Africa. C Force was paid per refurbished Pallet; there was a service level agreement setting out terms and conditions and it appeared the contractual relationships were indeed genuine and not an attempt to side step Labour Law and Labour Regulations.
by Adriaan Jean Vermaas (B.Com Law, L.L.B, L.L.M); source: https://www.lexisnexis.co.za/
What the Matter between CHEP South Africa (Pty) Ltd and Shardlow N.O and other tells us.
In terms of Section 189A of the Labour Relations Act, and more specifically Section 198A(3)(b)(i) states that employees engaged with by temporary employment Services for the purposes of rendering services to the client (excluding a temporary employment Service) is deemed to be an employee of the Client. Section 198(1) provided a definition for a Temporary Employee Service (TES) and states that a temporary Employment service mean any person, who for reward, procures for or provides to a client other persons, (a) who perform work for the client; and (b) who are remunerated by the temporary employment service.
In the above case, C Force rendered Pallet refurbishment services to CHEP South Africa. C Force was paid per refurbished Pallet; there was a service level agreement setting out terms and conditions and it appeared the contractual relationships were indeed genuine and not an attempt to side step Labour Law and Labour Regulations.
Initially the other respondents, employees of C Force approached the CCMA for relief under Sec 198 (1) and 198A of the Labour Relations Act, to declare C Force a TES and to declare that they were, therefore, Employees of CHEP South Africa. The commissioner found in their favour and the relief was granted.
CHEP took this decision for review to the Labour Court where it was decided that the commissioner indeed did make an error in his findings and what was pertinently overlooked was section that 198(1) of the Labour Relations Act states that the “other persons’ must also be provided for reward.
In their decision the Labour court Found that C force, due to it being remunerated per refurbished pallet, and thereby receiving an agreed upon amount per product and not a reward (monetary amount) for the “other persons” provided, this combined with the legitimate Service Level Agreements which were in place clearly showed that C Force was an independent contractor and not a TES and the decision was reversed and set aside.
Writen by : Adriaan Jean Vermaas (B.Com Law, L.L.B, L.L.M)
Mini Summary by LexisNexis:(https://www.lexisnexis.co.za/)
Industrial Relations and Human Resources :: Temporary employees
CHEP South Africa (Pty) Ltd v Shardlow N.O and others
[2019] JOL 40990 (LC)
Case Number: | JR 136 / 16 |
Judgment Date: | 17 / 01 / 2019 |
Country: | South Africa |
Jurisdiction: | Labour Court |
Division: | Johannesburg |
Bench: | G van der Merwe AJ |
Keywords:
Labour and Employment – Temporary employment service – Definition of
Mini Summary:
The fourth and further respondents were employed by the third respondent to perform certain work for the applicant. In 2015, they referred a dispute to the CCMA seeking to have effect given to rights contained in section 198A(3)(b) and (5) of the Labour Relations Act 66 of 1995. Those rights are aimed at protecting more vulnerable, lower paid workers, who are generally employed through a temporary employment service.
Held that section 198A(3)(b)(i) states that an employee engaged by a temporary employment service for the purpose of rendering service to a client (excluding a temporary employment service) is deemed to be an employee of that client.
The issues were whether the third respondent was a temporary employment service as defined in the Act, and whether it provided the services of the temporary employment service to the applicant for reward. At arbitration, those questions were answered in the affirmative, leading to the present application for review.
The test in the present review application was that the arbitration award could be challenged for its correctness or for being unreasonable.
Section 198A(1) of the Act defined a temporary employment service. The critical elements of the definition are the provision of other persons, to provide work for the client, while being remunerated by the temporary employment service, and the persons are provided by the temporary employment service for reward. Applying that to the facts of the present case, the court found that the third respondent was not acting as a temporary employment service. The award was thus reviewed and set aside.
Section 198A(1) of the Act defined a temporary employment service. The critical elements of the definition are the provision of other persons, to provide work for the client, while being remunerated by the temporary employment service, and the persons are provided by the temporary employment service for reward. Applying that to the facts of the present case, the court found that the third respondent was not acting as a temporary employment service. The award was thus reviewed and set aside.
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