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

Code of Good Practice

Who is an Employee

Part 4 : Employees of Temporary Employment Services

 

 

53. The LRA and the BCEA specifically regulate the employment of persons who are procured for, or provided to, a client by temporary employment services. Temporary employment services are one type of the wider category of triangular employment relationships. A temporary employment service is a person or business who—
(a) procures or provides employees to perform work or render services for a client; and
(b) remunerate those employees.

 

54. Both of these elements must be present for the person providing or procuring the employees to fall within the definition of a temporary employment service.

 

55. An arbitrator or court which is required to determine whether section 198 of the LRA or section 83 of the BCEA is applicable must be satisfied that the relationship between the client and the temporary employment service is a genuine arrangement and not a subterfuge entered into for the purpose of avoiding any aspect of labour legislation.

 

56. Whether or not an individual supplied to a client by a temporary employment service is an employee of the client or an independent contractor must be determined by reference to the actual working relationship between the worker and the "client" for whom the worker provides services or works22. The relationship between the worker and the temporary employment service is relevant to the extent that it may give some indication of the relationship between the worker and the client. The relationship between the worker and the client must be assessed in the light of the normal criteria used to determine the existence of an employment relationship. Therefore, for example, it would be appropriate to examine factors such as the extent to which the client issues instructions to the worker or any other relevant factor. The presumption of employment is applicable to cases involving persons engaged by temporary employment services, if the employees earn less than the prescribed earnings threshold.

 

57. If it is found that the individual has an employment relationship with the client, then for the purposes of the LRA and the BCEA—
(a) the individual is an employee of the temporary employment service;23
(b) the temporary employment service is the individual's employer.24

 

58. However, the client is jointly and severally liable for any contravention by a temporary employment service of any terms and conditions of employment in a bargaining council collective agreement, an arbitration award, or any sectoral determination or provision of the BCEA. In addition, in terms of section 57(2) of the Employment Equity Act, the client and the temporary employment service are jointly and severally liable for any act of discrimination committed by the temporary employment service on the express or implied instructions of the client.

 

22 LAD Brokers v Mandla at paras 26-32
23 In terms of section 57(1) of the Employment Equity Act, an employee provided by a temporary employment service who is engaged to work for a client on an indefinite basis or works for a period of longer than three months is deemed to be an employee of the client for the purposes of the Affirmative Action provisions of the Employment Equity Act.
24 For the position under the Occupational Health and Safety Act, see paragraph 72 of the Code.