The Labour Relations Act (LRA) and Basic Conditions of Employment Act (BCEA) specifically regulate the employment of persons who are procured for, or provided to, a client by temporary employment services (TES). TES is one type of the wider category of triangular employment relationships. A temporary employment service is a person or business who –
(a) procures or provides employees to perform work or render services for a client; and
(b) remunerates those employees.
Both of these elements must be present for the person providing or procuring the employees to fall within the definition of a temporary employment service.
An arbitrator or court which is required to determine whether section 198 of the LRA or section 83 of the BCEA is applicable must be satisfied that the relationship between the client and the TES is a genuine arrangement and not a subterfuge entered into for the purpose of avoiding any aspect of labour legislation.
Whether or not an individual supplied to a client by a TES is an employee of the client or an independent contractor must be determined by reference to the actual working relationship between the workers and the “client” for whom the worker provides services or work. The relationship between the worker and the TES is relevant to the extent that it may give some indication of the relationship between the worker and the client. The relationship between the worker and the client must be assessed in light of the normal criteria used to determine the existence of an employment relationship. Therefore, for example, it would be appropriate to examine factors such as the extent to which the client issues instructions to the worker or any other relevant factor.
The presumption of employment is applicable to cases involving persons engaged by TES, if the employees earn less than the prescribed earnings threshold per annum.
If it is found that the individual has an employment relationship with the client, for the purposes of the LRA and the BCEA –
(a) the individual is an employee of the TES,
(b) the TES is the individual’s employer.
However, the client is jointly and severally liable for any contravention by a TES of any terms and conditions of employment in a bargaining council collective agreement, an arbitration award, or any sectorial determination or provision of the BCEA. In addition, in terms of section 57(2) of the Employment Equity Act (EEA), the client and the TES are jointly and severally liable for any act of discrimination or harassment committed by the TES on the express or implied instructions of the client.
