THE NEW PROTECTION for PART-TIME, FIXED-TERM and TES-EMPLOYEES

The GOAL is towards DECENT WORK “ The goal is not just the creation of jobs, but the creation of jobs of ACCEPTABLE (my emphasis) quality. The quantity of employment cannot be divorced from its quality. All societies have a notion of decent work… The need today is to devise social and economic systems, which ensure basic security and employment while remaining capable of adaptation to rapidly changing circumstances in a highly competitive global market..and Finding the options that give people a fair deal is not only right and just – it is also the foundation of long term sustainable growth” ( Clive Thompson; ‘ The changing nature of employment ‘(2003) 24 ILJ 1793 at 1794; 1815)

AMENDMENTS to SECTION 198 of the LRA Substantive amendments are proposed to protect 3 categories of non-standard (atypical ) work: TES-employees, fixed-term employees and part-time employees. Sections 198A; 198B and 198C extend significant protection, in particular , to EMPLOYEES EARNING UNDER the BCEA- THRESHOLD. However, the majority of these protections only apply to employees after they have been in employment for 6 months. This creates a balance between the need to protect the vulnerable and the need to permit short-term flexibility.

SECTION 198 – why the need to amend? To restrict the employment of the more vulnerable, lower-paid workers by a TES to situations of genuine and relevant temporary work. Section 198 continues to apply to all employees. It retains the general provision that the TES is the employer and that the TES and its client are jointly and severally liable for specified contraventions. However, the proposed amendment clarifies the following: (a) When jointly and severally liable, an employee may institute action against either the TES or client , or both and may enforce any order/award either against the TES or client.

SECTION 198 – why the need to amend? (b) A labour inspector acting ito the BCEA may enforce compliance against the TES or client, as if it were the employer, or both. (c ) TES may NOT employ an employee on terms NOT permitted by the LRA; a sectoral determination or Collective Agreement of a BC which is applicable to the client. Judges and Arbitrators may rule on the validity of the contract between the TES and client. TES’s must be registered. Non-registration not a defence. TES must comply with section 29 of BCEA (written particulars)

SECTION 198A: TES-employees Definition of “TEMPORARY SERVICES” – means work for the client by an employee For a period NOT exceeding 6 months; As a SUBSTITUTE for an employee who is temporarily absent; In a category of work and for any period of time which is determined to be TEMPORARY SERVICE (either concluded in a BC, or provided in a sectoral determination or by Ministerial notice).

SECTION 198A: TES-EMPLOYEES (cont) DEEMED EMPLOYMENT: Employees earning BELOW threshold and who are in employ for MORE than 6 months are considered employees of the CLIENT, except employees who work as a substitute for an employee who is temporarily absent. CONSTITUTES DISMISSAL: termination by TES of employee’s assignment with CLIENT to avoid “deemed employment”. NOT LESS FAVOURABLE: employees deemed to be employees of client , must be treated on the whole not less favourable, unless justifiable reasons (see 198D (2)).

SECTION 198B:Fixed -term employees Definition: A contract of employment which expires on: (a) Occurrence of a specified event; (b) Completion of a specified task or project; © a fixed date, other than retirement age. Section 198B does NOT apply to employees earning in excess of threshold. Does NOT apply to employees employed i.t.o. a Statute which allows for fixed-term; Sectoral Determination or CA. 4. Does NOT apply to: (a) Employer that employs less than 10 employees; or (b) Employer that employs less than 50 employees and whose business has been in operation for less than 2 years.

SECTION 198: Fixed-term employees (cont) Employer may engage employee on a fixed-term contract or successive fixed-term contracts for longer than 6 months only if: The nature of work is of a limited or definite duration; or Any other Justifiable reason for fixing the term. 2. Non- Exhaustive list of justifiable reasons (Section198B(4)): (a) replacing another who is temporarily absent; (b) temporary increase in work, not longer than 12 months; © student to gain experience; (d) engaged for specific limited duration project; (e) trial period of not longer than 6 months; (f) non-citizen with work permit; (g) seasonal work; (h) public works scheme; (i) external funding (j) reached retirement

SECTION 198B: Fixed-term employees (cont) Employer bears ONUS to prove justifiable reason for fixing the term and that term was agreed upon. An employee employed on a fixed-term contract for LONGER than 6 months must NOT be treated less favourable than permanent employees performing same/similar work, unless justifiable reasons (see section 198D (2)). EQUAL ACCESS to apply for vacancies and entitlement to severance pay after 24 months unless alternative employment with same/similar terms was offered prior expiry of fixed-term contract.

SECTION 198C: part-time employees Section 198C does NOT apply to: employees earning in excess of threshold; an employer who employs less than 10 employees or employees less than 50 and whose business has been operating for less than 2 years; an employee who ordinarily works less than 24 hours; During an employee’s first 6 months of continuous employment . 2. Not less favourable treatment, unless justified (see section 198D (2)), as well as access to training and vacancies.

SECTION 198D JUSTIFIABLE REASONS In terms of sections 198A(5); 198B(3) and 98C(3)(a): Seniority, experience, length of service Merit Quality or quantity or work; Any other criteria (must not be prohibited i.t.o. EEA though)

DYOKWE v CCMA, MONDI PACKAGING AND STRATOSTAFF (PTY) LTD (C418/11) CASE LAW DYOKWE v CCMA, MONDI PACKAGING AND STRATOSTAFF (PTY) LTD (C418/11) Court set aside ruling by commissioner and found Mondi to be the employer and not the TES. Court relied on the objectives of the LRA as well as S23 of the Constitution which is aimed at job security. Contract found to be against public policy.

NBCRFLI, MOSOEU vs. CARLBANK MINING CONTRACTORS (PTY) LTD (JA 52/10) CASE LAW NBCRFLI, MOSOEU vs. CARLBANK MINING CONTRACTORS (PTY) LTD (JA 52/10) Carlbank is a TES, registered with the NBCRFLI. Carlbank entered into a private arbitration agreement with employee, vulnerable worker. LAC held that private arbitration clause does not oust jurisdiction of the BC. LAC found that in terms of S199(2) of LRA such private arbitration agreement less favourable and therefore invalid. SCA denied Carlbank leave to appeal- therefore LAC judgment stands