Guidance notes for TES employees – Constitutional Court 'Sole Employer' Judgement
The Constitutional Court judgement that there is sole employment with the client for the purposes of the LRA does not mean that TES employees become permanent, nor does it mean that Temporary Employment Services (TES) are banned.
To assist, here are some Frequently Asked Questions and Answers:
Q: Does this mean that a Temp's employment contract transfers to the Client after three months?
A: No. Sole employment is limited to LRA only (i.e. Unfair dismissal, Unfair Labour practices, Organisational Rights and Collective Bargaining). The Judgement paragraph 75 clearly explains that there is no transfer of employment and that the triangular employment relationship continues.
All usual employment processes continue in respect of managing timesheets, payroll and other operational elements. Please liaise with your TES representative in this regard.
Q: Which TES employees are affected by the Constitutional Court decision?
A: Only employees earning below the BCEA threshold, currently R205 433 per annum, and who are placed on an assignment for more than 3 months are affected. If a placed employee is performing a temporary service (as defined below), the TES will remain the employer.
A temporary service means work for a client by an employee:
- For a period not exceeding 3 months;
- As a substitute for an employee of a client who is temporarily absent beyond 3-months; or
- In a category of work for any period which is determined to be a temporary service by a collective agreement concluded in a bargaining council, a sectoral determination or a notice published by the Minister.
Q: Does this affect justifiable fixed-term contracts for employees under threshold?
A: No. Temps employed on justifiable fixed-term contracts for longer than three months, e.g. for a project, seasonal work, temporary increase in workloads etc., this judgement has no bearing.
Q: Is there any difference if we fall under a Bargaining Council?
A: Yes. In accordance with LRA s198A(1)(c) a Bargaining Council Agreement, or Sectoral Determination will take precedence.
Q: What happens in the event of any unfair labour practice?
A: All employees, including TES employees, are protected by existing labour legislation. TES employee who experiences unfair labour practice, including unfair dismissal, is entitled to lodge a case with the CCMA.
As clarified by the Con Court judgement, provide additional protection to those employees under the threshold (R205 433) who work longer than three months in that, in the event of a breach of the LRA, they could take action against either the client or the TES.
Q: How can I find out more detailed information if I have any queries?
A: If you have any queries about the Constitutional Court judgement and how it might affect you, please contact your TES representative or APSO
(Our grateful thanks and acknowledgment to CAPES for their contribution to these FAQ's)