The Department of Labour welcomes the judgment by the Constitutional Court in the matter between Assign Service (Pty) Ltd, a temporary employment service agency, and the National Union of Metalworkers of South Africa (Numsa), the CCMA, Commissioner Abdool Osman, Krost Shelving & Racking (Pty) Ltd and the Casual Workers Advice Office (CWAO).
The judgment provides clarity and certainty to an area that has been a matter for different interpretation of the law since the amendments to the Labour Relations Act (LRA) were promulgated in January 2015. The intentions behind the amendments to the Labour Relations Act were to regulate temporary work and what is commonly referred to as labour broking. In particular, the amendments were aimed at the following:
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To introducing additional protections for vulnerable workers, that is, employees who earn on or below the threshold prescribed in section 6 (3) of the Basic Conditions of Employment Act (BCEA), and;
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To limit genuine temporary employment to a period of three months.
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To limit temporary employment to three months also carries the message that temporary employment services should be genuinely temporary. The Constitutional Court judgment in the Assign matter has upheld and confirmed these objectives of the Labour Relations Act.
It is worth quoting from the judgment on this point where it concludes as follows:
"…the language used by the Legislature in section 198A (3)(b) of the LRA is plain. And, when interpreted in context, it supports the sole employer interpretation. It certainly is also in line with the purpose of the 2014 Amendments, the primary object of the LRA, and the right to fair labour practices in section 23 of the Constitution."
The Constitutional Court judgment has also confirmed the correctness of Commissioner Osman’s arbitration award issued in 2015. It was this award that was taken on review by Assign Services to the Labour Court and that finally ended in the Constitutional Court. The CCMA has played a critical role in the implementation of the amendments to the LRA and their impartiality, integrity and dedication in upholding the law and the objectives that it seeks to achieve is to be commended.
In welcoming the judgment, it should also be borne in mind that the amendments to the LRA were the result of a lengthy engagement between social partners in NEDLAC. We urge the social partners to abide by the judgment and to operate in a way that achieves the objectives of the LRA and that promotes labour market stability.
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To limit genuine temporary employment to a period of three months.
To limit temporary employment to three months also carries the message that temporary employment services should be genuinely temporary. The Constitutional Court judgment in the Assign matter has upheld and confirmed these objectives of the Labour Relations Act.
It is worth quoting from the judgment on this point where it concludes as follows:
"…the language used by the Legislature in section 198A (3)(b) of the LRA is plain. And, when interpreted in context, it supports the sole employer interpretation. It certainly is also in line with the purpose of the 2014 Amendments, the primary object of the LRA, and the right to fair labour practices in section 23 of the Constitution."
The Constitutional Court judgment has also confirmed the correctness of Commissioner Osman’s arbitration award issued in 2015. It was this award that was taken on review by Assign Services to the Labour Court and that finally ended in the Constitutional Court. The CCMA has played a critical role in the implementation of the amendments to the LRA and their impartiality, integrity and dedication in upholding the law and the objectives that it seeks to achieve is to be commended.
In welcoming the judgment, it should also be borne in mind that the amendments to the LRA were the result of a lengthy engagement between social partners in NEDLAC. We urge the social partners to abide by the judgment and to operate in a way that achieves the objectives of the LRA and that promotes labour market stability.
The Department of Labour’s Director-General, Thobile Lamati, has thrown his weight behind the Constitutional Court’s ruling on the Labour Relations Act (LRA) in so far as the controversial issue of labour broking is concerned.
The apex Court ruled that a worker placed by a labour broker at a company, becomes that company’s employee with no contractual ties to the labour broker after a period of three months. The deeming provision seeks to protect vulnerable workers who earn below the stipulated threshold (Basic Conditions of Employment Act threshold of R205 433,30).
"We feel that the Department has been vindicated in so far as the interpretation of provisions of the Labour Relations Act (LRA), which were inserted in the law to provide a legal framework to protect the most vulnerable workers,’’ said Lamati.
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