[PRESS RELEASE] Constitutional Court to hand down judgement on the Assign Services v NUMSA and Others matter

On Thursday 26 July 2018, the Constitutional Court will hand down judgment in the matter of Assign Services v NUMSA and Others, a matter dealing with the proper interpretation of section 198A(3)(b)(i) (the “deeming provision”) of the Labour Relations Act 66 of 1996 (LRA).  Section 198A was one of several amendments made to the LRA in 2014, which aimed at providing protection to casual workers placed by Temporary Employment Services (TESs).  LHR represented the Casual Workers Advice Office (CWAO), a non-profit organization that provides advice and support to precarious workers, who were admitted as amicus curiae in the matter.

The meaning and effect of section 198A(3)(b) of the LRA, which ‘deems’ workers placed with a client by a 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 TESs and enable them to access their rights in terms of the LRA. Currently, TESs 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.

CWAO supported the sole employer interpretation and lead submissions through LHR, arguing that dual employment cannot afford employees better protection because it undermines the very purpose of the amendments to the LRA.  They argued that dual employment gives rise to uncertainties, increases employment insecurity, perpetuates wage discrimination, and undermines the ability of workers to bargain collectively.

Jessica Lawrence, the attorney heading the Labour Unit at LHR, noted “This is an important judgment that will determine how a lot of matters currently before various courts and tribunals will be adjudicated.  We are hopeful that the judgment will provide much needed legal clarity in this area of law as well as protect and empower vulnerable workers to access their labour rights.”

For more information contact:

Carol Mohlala

Phone: 079 238 9826

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

Website: www.lhr.org.za

Jessica Lawrence

Phone: 011 339 1960

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

Website: www.lhr.org.za