Name of presenter: Craig Bosch Title of Presentation : LRA Amendment Bill: non-standard employment

1. SASLAW SEMINAR 11 APRIL 2012 Name of presenter: Craig Bosch Title of Presentation: LRA Amendment Bill: non-standard employment

2. Temporary employment services • Amendments seek to strike an ‘appropriate balance between the need to protect vulnerable employees against the potential for abuse and the need to permit short-term flexibility.’ • Main problems: • Client is the employer to all intents and purposes, but bears few of the responsibilities of an employer. Particularly, client effectively determined the duration of an employee’s employment, but bore no responsibility for dismissal. • TES employees and client’s employees often have very different terms and conditions • Collective bargaining, particularly difficulties accessing organisational rights

3. Amendments to s198 • Existing categories of joint and several liability are retained (s198(4)) • New s198(4A) effectively explains what joint and several liability is • Importantly, an employee of the TES may not be employed by the TES on terms and conditions not permitted by the LRA, any employment law, sectoral determination or bargaining council agreement applicable to the client (s198(4C))

4. Amendments to s198 • An arbitrator or the LC may determine whether a provision in an employment contract or contract between client and TES complies with ‘subsection (11)’ (read s198(4C)) in any proceedings brought by an employee (?). • TESs must be registered, but lack of registration no defence to claims under s198 or s198A

5. Introduction of s198A • Applies to employees earning below the threshold • Defines ‘temporary work’ as work for the client: • For a period of less than six months • As a substitute for an employee who is temporarily absent • In a category of work and for any period said to be temporary service in a bargaining council agreement, sectoral determination or notice published by the Minister (after consultation with NEDLAC) • If the employee performs ‘temporary work’ he is the employee of the TES, if not, he is deemed to be the employee of the client

6. Introduction of s198A • If the employee is deemed to be the employee of the client she must be treated on the whole not less favourably than employees of the client performing the same or similar work, unless there is some justifiable reason (see s198D) for different treatment • It is a ‘dismissal’ if a TES terminates an employee’s assignment to a client to avoid that person being deemed the employee of the client (not automatically unfair?)

7. Introduction of s198B • Applies to employees on fixed term contracts who earn less than the threshold but not where exceptions listed in s198B(2) are present. • A ‘fixed term contract’ is one where the contract terminates: • On the occurrence of a specific event • On the completion of a specified task or project • On a fixed date other than an agreed or normal (?) retirement age • Fixed term contract longer than 6 months permitted only if: • The nature of the work is of a limited or definite duration • The employer can prove a justifiable reason for it (acceptable reasons are contained in s198B(4)).

8. Introduction of s198B • Employment in terms of a fixed term contract concluded or renewed contrary to s198B(3) is deemed to be indefinite • And if an employee is employed on a fixed term contract for longer than 6 months he must be treated on the whole not less favourably than employees employed on an indefinite basis who perform the same or similar work, unless there is a justifiable reason for different treatment (see s198D) • Employees on a fixed term contract for more than 24 months must be paid one week’s remuneration for each completed year of service (even though no retrenchment), but forfeit it if unreasonably refusing to accept offer of alternative employment

9. Introduction of s198C • Applies to ‘part-time employees’ earning below the threshold but not during the employee’s first six months of employment and subject to other exception listed in s198C(2) • ‘Part-time employee’ is one who is remunerated by reference to the time the employee works and who works less hours than a comparable full-time employee • ‘Comparable full-time employee’ is one who is remunerated by reference to time and is identifiable as a full-time employee in terms of the employer’s custom and practice (?) but see s198C(5). Author and Date

10. Introduction of s198C • Part-time employees must be treated on the whole not less favourably than comparable full-time employees doing the same or similar work, unless there is a justifiable reason for that (see s198D) Author and Date

11. Introduction of s198D • Disputes relating to ss198A, s198B and s198C may be referred to the CCMA or bargaining council for conciliation and, if that proves unsuccessful, the arbitration • Justifiable reasons for different treatment include: • Merit • Seniority, experience or length of service • Quality or quantity of work performed • Obviously nothing discriminatory Author and Date

12. Introduction of s200B • ‘Employer’ includes one or more persons who carry on associated or related activities or businesses by or through an employer if the intent or effect of doing so is or has been to directly or indirectly defeat the purposes of the LRA or any other employment law • If more than one person is held to be the employer in terms of s200B(1) those employers are jointly and severally liable • Who will be hit by this? Author and Date