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Labour Relations Act, 1995 (Act No. 66 of 1995)

Chapter IX : General Provisions

198. Temporary Employment Services

 

 

(1) In this section, "temporary employment service" means any person who, for reward, procures for or provides to a client other persons—
(a) who perform work for the client; and

[Paragraph (1)(a) substituted by section 37(a) of Act No. 6 of 2014]

(b) who are remunerated by the temporary employment service.

 

(2) For the purposes of this Act, a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer.

 

(3) Despite subsections (1) and (2), a person who is an independent contractor is not an employee of a temporary employment service, nor is the temporary employment service the employer of that person.

 

(4) The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes—
(a) a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;
(b) a binding arbitration award that regulates terms and conditions of employment;
(d) a sectoral determination made in terms of the Basic Conditions of Employment Act.

[Paragraph (1)(d) substituted by section 37(b) of Act No. 6 of 2014]

 

(4A) If the client of a temporary employment service is jointly and severally liable in terms of section 198(4) or is deemed to be the employer of an employee in terms of section 198A(3)(b)—
(a) the employee may institute proceedings against either the temporary employment service or the client or both the temporary employment service and the client;
(b) a labour inspector acting in terms of the Basic Conditions of Employment Act may secure and enforce compliance against the temporary employment service or the client as if it were the employer, or both; and
(c) any order or award made against a temporary employment service or client in terms of this subsection may be enforced against either.

[Subsection (4A) inserted by section 37(c) of Act  No. 6 of 2014]

 

(4B)
(a) A temporary employment service must provide an employee whose service is procured for or provided to a client with written particulars of employment that comply with section 29 of the Basic Conditions of Employment Act, when the employee commences employment.
(b) Paragraph (a) applies, three months after the commencement of the Labour Relations Amendment Act, 2014, to a person whose services were procured for or provided to a client by a temporary employment service in terms of subsection 198(1) prior to the commencement of the Labour Relations Act, 2014.

[Subsection (4B) inserted by section 37(c) of Act  No. 6 of 2014]

 

(4C) An employee may not be employed by a temporary employment service on terms and conditions of employment which are not permitted by this Act, any employment law, sectoral determination or collective agreement concluded in a bargaining council applicable to a client to whom the employee renders services.

[Subsection (4C) inserted by section 37(c) of Act  No. 6 of 2014]

 

(4D) The issue of whether an employee of a temporary employment service is covered by a bargaining council agreement or sectoral determination, must be determined by reference to the sector and area in which the client is engaged.

[Subsection (4D) inserted by section 37(c) of Act  No. 6 of 2014]

 

(4E) In any proceedings brought by an employee, the Labour Court or an arbitrator may—
(a) determine whether a provision in an employment contract or a contract between a temporary employment service and a client complies with subsection (4C); and
(b) make an appropriate order or award.

[Subsection (4E) inserted by section 37(c) of Act  No. 6 of 2014]

 

(4F) No person must perform the functions of a temporary employment service unless it is registered in terms of any applicable legislation, and the fact that a temporary employment service is not registered will not constitute a defence to any claim instituted in terms of this section or 198A.

[Subsection (4A) inserted by section 37(c) of Act  No. 6 of 2014]

 

(5) Two or more bargaining councils may agree to bind the following persons, if they fall within the combined registered scope of those bargaining councils, to a collective agreement concluded in any one of them—
(a) temporary employment service;
(b) a person employed by a temporary employment service; and
(c) a temporary employment service client.

 

(6) An agreement concluded in terms of subsection (5) is binding only if the collective agreement has been extended to non-parties within the registered scope of the bargaining council.

 

(7) Two or more bargaining councils —
(a) temporary employment service;
(b) a person employed by a temporary employment service; and
(c) a temporary employment service's client.

 

(8) An agreement concluded in terms of subsection (7) is binding only if—
(a) each of the contracting bargaining councils has requested the Minister to extend the agreement to non-parties falling within its registered scope;
(b) the Minister is satisfied that the terms of the agreement are not substantially more onerous than those prevailing in the corresponding collective agreements concluded in the bargaining councils; and
(c) the Minister, by notice in the Government Gazette, has extended the agreement as requested by all the bargaining councils that are parties to the agreement.