On 10 July 2017, the Labour Appeal Court handed down its Judgment in the Assign Services matter. This relates to the latest stage of legal action taken to gain certainty about the interpretation of the LRA amendments, particularly clause s198A commonly known as the “deeming provision”.
Essentially, the interpretation of what happens to a flexible worker, earning less than the BCEA threshold (R205 433 per annum), who is employed by a Temporary Employment Services (TES) and placed on site at a client organisation, once the three-month period expires.
To assist in clarifying the status quo, please find below some of the most Frequently Asked Questions and the answers.
Q: If the LAC Judgment overturns the previous dual employment interpretation, does this mean that any TES employees employed longer than 3 months now transfer as permanent employees of the client?
No. It is business as usual.
It is now a matter of public knowledge that the legal team has been instructed to file an application for leave to appeal to the Constitutional Court. This will be done within the three-week period contemplated in the rules.
In terms of s18(1) of the Superior Courts Act, the noting of an application for leave to appeal has the effect of suspending the decision which forms the subject matter of that application. Accordingly, the noting of the appeal will have the effect of the status quo remaining until the Constitutional Court finally determines the matter.
Accordingly, and despite all knee-jerk responses to the Judgment, it is not anticipated that anything will change, and if it does, that will only be after the Constitutional Court ruling.
Q: How long will this Constitutional Court challenge process take?
Whilst it is impossible to say exactly how long this process will take, it is the opinion of our legal team that it could take up to twelve (12) months. We will continue to keep the industry informed of progress. Please follow our blog on the CAPES website www.capes.org.za
Q: Which TES employees are affected by this?
Only employees earning below the BCEA threshold, currently R205 433 per annum, and who are paced on an assignment for more than 3 months are affected.
Q: Is there any difference if we are within a Bargaining Council?
In accordance with LRA s198A(1)(c) the Bargaining Council (or sectoral determination) agreement would take precedent. We recommend that you review the existing agreement in relation to the management of TES workers placed within the sector.
Q: How can we find out more detailed information?
The Confederation of Associations in the Private Employment Sector (CAPES) represents the private employment services sector, including temporary employment services, and is actively involved in the process of achieving legal clarity on the LRA amendments.
Regular updates are published on the CAPES website www.capes.org.za
To assist TES operators and any organisations that make use of their services, CAPES will be hosting breakfasts in Johannesburg (27 July 2017), Durban (3 August 2017) and Cape Town (4 August 2017). CAPES Chief Operating Officer and industry negotiator, Jonathan Goldberg, will be presenting on the state of the industry, how employers can maintain their flexibility and manage expectations of workers, trade unions and other stakeholders.
Breakfast attendees will have the opportunity to address their concerns and get their pressing questions answered. Seats are limited, so please book soon if you’re interested in attending. Please click here for more information or to book
CAPES Public Relations
Attention: Natalie Singer
The Confederation of Associations in the Private Employment Sector (CAPES) is an umbrella body, formed in 2002 when the need for a unified voice for the South African staffing industry became apparent. CAPES was created specifically to act as the lobbying organisation for the four primary staffing associations, who represent thousands of SME staffing businesses, and several of South Africa’s largest corporate staffing companies.