“If employees of the TES want to be treated no less favourably than an employee of the client performing the same or similar work, they need to be able to prove that they are up to the task in the same way that permanent staff are. Where there are no comparators employed by the client, employees under the employ of TES cannot succeed in their claim,” Wessels explains.
Wessels was citing a recent case handled at the Commission for Conciliation Mediation and Arbitration (CCMA) where the commissioner ruled against employees placed by a TES company seeking permanent contracts with the client company.
He said the commissioner had not deviated from the Constitutional Court’s judgment, which states an employee who earns less than the stipulated threshold of R205,433 annually and is contracted through a temporary employment service to a client for more than three months, is deemed to be employed by that client.
“The Commissioner accepted the existence of the triangular employment relationship and that the client company is the employees’ employer for the purposes of the Labour Relations Act (LRA), however, there is no requirement for the client to step into the shoes of the TES,” Wessels continues.
He says the employment relationship between the placed worker and the client arises by operation of law and this is independent of the terms of any contract between the placed worker and the TES. This does not imply that the employees of the TES must be transferred “onto the books of the client”.
According to the South Africa Revenue Services income tax records, 474,161 employees show up as working for labour brokers. On average they earn 30% less than workers who are employed directly.
In 2014, the TES sub-sector accounted for close to 1.3 million jobs out of an overall 2 million, according to a Deloitte study.
“Essentially, employees employed under TES will have to prove that they perform the same or similar work to employees who are in the employ of the client in order to receive the same benefits as the employees employed by the client. The latter, however, does not detract from the liability that the client has towards employees of the TES per LRA and Basic Conditions of Employment Act,” Wessels concludes.
