An analysis of the labour law amendments of 2014 pertaining to labour brokers : a comparative study

Abstract

Tracing back in history, it emerges that atypical forms of work, of which labour broking is one, were not adequately regulated in the South African legislative framework. It has been in South Africa since the 1920s at least, but it was not covered in legislation until much later. The Labour Relations Act of 1956 did not refer to labour brokers at all and the subsequent amendments in 1983 only defined labour brokers and their offices, but it did not adequately provide for the proper regulation of labour broking relationships. This led to the emergence of legal reform in the South African legislative framework with regards to the regulation of labour brokers. The Labour Relations Act 66 of 1995 was the first statute that attempted to regulate labour brokers in section 198. However, the regulations could be described as highly inadequate due to a number of shortcomings. The mentioned section did not sufficiently cover aspects such as the liability of the authority figures (the TES and the client), the use of triangular employment relationships as disguised employment, the unequal treatment of temporary employees, lack of job security and the lack of bargaining power of temporary employees. The above lacunae led to the decision of Parliament to address labour brokers more prominently in the Labour Relations Amendment Act 6 of 2014. It is submitted that a measure of additional protection and legal certainty has since the amendments been afforded to temporary employees. Upon scrutiny it can be concluded that many aspects are now addressed, such as the definition of TES’s, the liability of authourity figures, the scope of temporary services, the status of the employer and its obligations and the organisational rights and treatment of temporary employees. However, it seems that not all problems are addressed such as the use of disguised employment and job security of temporary employees. As a member of the International Labour Organisation (ILO), South Africa has an obligation to ensure that its domestic legislation falls within the ILO labour standards.The ILO has its own instruments which regulate labour brokers, which South Africa as a signatory thereto has to comply with. It is submitted that South Africa complies with the ILO standards which regulate labour brokers to a certain extent. In this research a comparative study with the United Kingdom (UK) will be undertaken. It can be concluded that the UK has a number of mechanisms in place to ensure that labour brokers are effectively regulated and that ensure that temporary employees are adequately protected. It is recommended that South Africa should adopt the UK model which offers temporary employees equal treatment and a minimum floor of rights as well as a complaint and inspectorate machinery to protect such employees. It is believed that the UK offers solutions for potential problem areas where the South African legislative framework falls short.