LHR in the Constitutional Court tomorrow in the matter of Assign Services v. Numsa and Others

On 22 February 2018, Lawyers for Human Rights (LHR) will appear at the Constitutional Court in the matter of Assign Services v NUMSA and Others, when the Constitutional Court will hear arguments on the proper interpretation and effect of section 198A(3)(b) of the Labour Relations Act 66 of 1995 (LRA).  LHR represent the Casual Workers Advice Office (CWAO) who has been admitted as amicus curiae in the matter.

The meaning and effect of the section 198A(3)(b) of the amendments to the LRA, which ‘deems’ workers placed with a client by a temporary employment service (TES) for more than three months to be the employees of the client (the deeming provision) was first considered in this matter. The provision was enacted to protect vulnerable casual workers placed by TES access their rights in terms of the LRA. Currently TES or Labour Brokers act as shields for employers against vulnerable workers who are unable to access their rights against them.

 When the matter was heard in the Labour Court, the court ruled that placed workers were considered dual employees of both the TES and the client (employer). At the Labour Appeal Court (LAC) CWAO, who have represented countless casual workers, argued that this interpretation had the effect of perpetuating the plight of vulnerable workers placed by TESs as they still could not access their rights against their employers. The LAC rejected the dual or parallel employer interpretation and found that the client of the TES was the sole employer of placed workers.

Assign appealed the LAC’s decision and the Constitutional Court will now need to determine what the proper interpretation of section 198A is and the effect thereof.  Through analysing the nature of the relationship between the placed worker and the client, the practical effect of the parallel or dual employer interpretation, and the constitutional provisions and international law framework, LHR will present a number of arguments in favour of the sole employer interpretation. The matter is of significant importance in the campaign towards ending the outsourcing of vulnerable workers and ensuring they can access their labour rights appropriately.

For More information please contact

Wayne Ncube

Attorney: Strategic Litigation Programme

011 339 1960

OR

Carol Mohlala

Media and Communications Manager

079 238 9826