[PRESS RELEASE] MASSIVE VICTORY AT THE CONSTITUTIONAL COURT FOR OURSOURCED WORKERS

Today, the Constitutional Court handed down judgment in the matter of Assign Services v NUMSA and Others, which concerns the correct interpretation of section 198A(3)(b) (the “deeming provision”) of the Labour Relations Act 66 of 1996 (LRA).  Section 198A(3)(b) provides that an employee who earns less than the stipulated threshold and is contracted through a Temporary Employment Service (TES) to a client for more than three months is deemed to be employed by that client.  The Constitutional Court had to decide whether this section created a sole employment relationship for workers placed by a TES or a dual employment relationship. Specifically, whether “deemed” employees have, as their employer, only the client or both the client and the TES (Labour Brokers).

LHR represented the Casual Workers Advice Office (CWAO), a non-profit organization that provides advice, assistance, and support to precarious workers, who were admitted as amicus curiae in the matter.  CWAO through LHR placed before the Constitutional Court a number of examples drawn from CWAO’s experience with thousands of labour broker workers placed in hundreds of workplaces, who have struggled to access their new rights to employment security and conditions which are ‘not less favourable’ than those of their directly-employed counterparts.  The evidence placed before the Court illustrated the negative effect of the dual employer interpretation, which was followed by employers after the judgment of the Labour Court was handed down in 2015.  CWAO’s experience shows that the dual employer interpretation results in absurdities, which compound uncertainty and fuel rights violations. 

The Constitutional Court, the highest court in the land, has now concluded that the true meaning of section 198A(3)(b) is that of a sole employer.  This interpretation supports the true purpose of the amendments, which is to protect vulnerable ‘non-standard’ employees by limiting placement through labour brokers to situations of genuinely temporary work.

This judgment is a massive victory for low-earning labour broker workers, as it will combat the oppressive and exploitative practices associated with labour broker employment.  It will ensure that crucial rights, such as the right to equal pay for equal work, collective bargaining, the right to strike, and fair employment practices are protected and enforceable against employers.

Jessica Lawrence, the attorney heading the Labour Unit at LHR, noted that “this is a great victory for labour broker workers, as it expressly allocates employment law obligations to a single employer, offers greater protections to vulnerable workers, and strengthens workers’ ability to improve their conditions of work.  The judgement is a significant step towards ending the abusive effects of outsourcing.”

For more information contact:

Carol Mohlala

Phone: 079 238 9826

E-mail: Carol [at] lhr [dot] org [dot] za

Jessica Lawrence

Phone: 011 339 1960

E-mail: jessical [at] lhr [dot] org [dot] za