From Exclusion to Labour Security: To What Extent Does Section 198 of the Labour Relations Act of 2014 Strike a Balance Between Employers and Employees?
| Jurisdiction | South Africa |
| Author | Malebakeng Agnes Forere |
| Citation | (2016) 28 SA Merc JL 375 |
| Date | 20 August 2019 |
| Published date | 20 August 2019 |
| Pages | 375-398 |
Articles
FROM EXCLUSION TO LABOUR SECURITY:
TO WHAT EXTENT DOES SECTION 198 OF
THE LABOUR RELATIONS AMENDMENT
ACT OF 2014 STRIKE A BALANCE BETWEEN
EMPLOYERS AND EMPLOYEES?
MALEBAKENG AGNES FORERE*
Senior Lecturer of Law, University of the Witwatersrand
Abstract
Whereas the Labour Relations Act was flexible enough to protect
even employees that would not qualify as such at common law, non-
standard employees were afforded minimal protection by the labour
statutes. They faced unfair labour practices and unfair dismissals yet
they did not have recourse to the protection of the law. On the other
hand, employers changed the face of the labour market and increasingly
resorted to the use of non-standard employees. Because of the injustices
and poor working conditions that non-standard employees faced,
unions called for an outright ban of non-standard employment con-
tracts, particularly temporary employment services. The legislature
responded by amending section 198 of the Labour Relations Act in 2014
to regulate non-standard employment relationships. Focusing solely on
temporary employment services and fixed-term contracts, this article
seeks to determine whether the legislature has obtained a balance
between the needs of employers to use atypical employment contracts
and the call for unions to ban this form of employment relationship.
The analysis of section 198 reflects that while the Labour Relations
Amendment Act of 2014 has duly maintained temporary flexibility by
allowing employers to use non-standards employees, it also afforded
protection to the employees in question thereby striking the required
equilibrium. However, the article concludes by noting the uncertainties
* BA (Law) LLB (Lesotho) LLM (Essex) PhD (Bern).
375
(2016) 28 SA Merc LJ 375
© Juta and Company (Pty) Ltd
that are created by the Amendment Act regarding the relationship
between employees and TES/client.
I INTRODUCTION
The Constitution of the Republic of South Africa provides ‘everyone’
with a right to fair labour practices,
1
and this has been given effect to
through the enactment of the Labour Relations Act (LRA), the Employ-
ment Equity Act (EEA) and the Basic Conditions of Employment Act
(BCEA).
2
The right to fair labour practices has been extended to
employees who would ordinarily not fall within the meaning of
‘employee’, such as sex workers, illegal immigrants, and employees in
the armed forces.
3
On the other hand, employees falling under the
category of ‘non-standard employees’ did not get to enjoy this constitu-
tional provision; in other words, they were not adequately protected and
they had limited enjoyment of the rights as espoused in the core labour
statutes — the LRA, the BCEA and the EEA. In particular, non-standard
employees faced difficulties in identifying their employer;
4
their employ-
ment contracts contained restraint of trade clauses;
5
they worked for
long hours without being paid overtime (contrary to the BCEA); the
duration of their contracts would endure for years even though they
were appointed as temporary employees;
6
the circumstances under
which they were employed were not spelled out, leading to employers
resorting to this type of employee without any regulation; their salaries
were lower than those of standard employees of the ‘employer’ or client
doing the same job; the client was largely immune from litigation; and
they could not exercise their right to participate in collective bargain-
ing.
7
Consequently, trade unions such as the Congress of South African
Trade Unions (COSATU) called for a complete ban on the use of
non-standard employment contracts, reasoning that these contracts are
1
The Constitution of the Republic of South Africa, 1996, s 23.
2
Act 66 of 1995; Act 55 of 1998; Act 75 of 1997.
3
Kylie v CCMA 2010 (31) ILJ 1600 (LC); Discovery Health Limited v CCMA & others (2008)
29 ILJ 1480 (LC); South African National Defence Force Union v Minister of Defence 1999 (4) SA
469 (CC).
4
See generally, Tshoose & Tsweledi, ‘A critique of the protection afforded to non-Standard
workers in a temporary employment context in South Africa’ 2014 (18) Law, Democracy &
Development at 334; Van Niekerk et al, Law@work 3 ed (Juta 2015) 68–72.
5
Tshoose & Tsweledi, (2014) 18 Law, Democracy & Development at 334.
6
Van Eck, ‘Revisiting agency work in Namibia and South Africa: Any lessons from decent
work agenda and flexicurity approach?’ (2014) 30 Int Journal of Comp Lab Law & Ind Rel at 49.
7
Tshoose & Tsweledi, (2014) 18 Law, Democracy & Development at 334; Van Niekerk et al,
(Juta 2015) 68–72.
(2016) 28 SA MERC LJ376
© Juta and Company (Pty) Ltd
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