LRA vs Temporary | Casual | Fixed Term Employees

Have you heard of the changes to the Labour Relations Act or if you employ temporary, casual or fixed term contract employees, you better read on…

The long awaited amendments to the Labour Relations Act are finally here. Effective from 01 January 2015, the amendments introduce sweeping changes to the world of work in terms of equal treatment, dispute resolution and the employment of fixed term contract-, temporary and casual employees.

While none of the amendments affect the relationship between the temporary employee and a Temporary Employment Service provider (TES or more commonly known as labour brokers), or the TES and the client, during the first three months of employment, after three months employment workers will be deemed to be employees of both the client company and the TES for the purposes of the Labour Relations Act only. This applies to those paid less than the threshold amount of R205 433.30 per annum. The practical application of this provision is in the event of a dismissal dispute, steps can now be taken against both the TES and the client, i.e. both may be referred as respondents to the CCMA.

The changes affect much more than only temporary workers placed by a TES. All a-typical employees (temporary, fixed term or casual employees) may not be treated less favourably than employees who perform the same or similar work with an employer, including workers placed by a TES.

 A number of restrictions apply when using fixed-term contracts for more than three months. You will only be able to employ fixed-term contracts employees if:

  • The nature of the work is of a limited duration (project-related work), or
  • You can demonstrate any other justifiable reason for fixing the term of the contract

 There are some further specific exceptions allowed, including:

  • If the temporary worker is replacing an employee who is temporarily absent from
  • In the case of a temporary increase in the volume of work, which increase is not expected to exceed 12
  • For graduate training, work experience or internship
  • Where non-citizens have been granted work permits of limited
  • For seasonal work.
  • For public job creation
  • Where the position is funded by an external source for a limited
  • In the case of retirement

 It is clear that the costs of doing business will increase with the Labour Relations amendments. Not only is the equal treatment principle applicable to fixed-term and part- time employees after three months, but severance will be payable to any fixed term contract employee if he or she is employed on a contract of longer than 2 years. This provision is applicable to all employers, not only TES companies. Another added cost for employers pertains to review applications. Before an employer may review a case, payment of security equal to the employee’s remuneration of 24 months must be paid to the court. We are yet to see if this provision will weather a constitutional challenge.

 South Africa is recognised as having some of the most rigid labour legislation in the world. Do you know where you stand and what you need to do going forward to stay on the right side of the law? As the start of a new year rings in an era of change to all employers, it has become essential for business to align themselves with TES’s who are able to show compliance with labour legislation and who are registered with the various industry institutions. The way to achieve this is to use TES’s who are not only registered with the Department of Labour, but also members of industry institutions such as The Federation of African Professional Staffing Organisations (APSO) and The Confederations of Associations in the Private Employment Sector (CAPES). Express Employment Professionals is a member of both these leading industry institutions are fully compliant with best practice and regulations governing all aspects of the Temporary Employment Services industry. Express proudly subscribe to the Code of Ethics and Best Practice of both APSO and CAPES and gives peace of mind to any business owner that employment laws are adhered to.

The use of a legitimate and registered TES such as Express Employment Professionals has various other benefits such as our indemnity. Our standard Terms and Conditions with our clients has since inception already catered to indemnify them against Express’s unlikely breach of bargaining council agreements, sectoral determinations and collective agreements. We have now extended our indemnity to cater for the latest amendments to South African labour laws which has introduced joint and several liability for dismissals. This provision gives an employee the ability to institute proceedings against either the TES or the client. Express Employment Professionals will indemnify a client from dismissal awards should Express fail to adhere to dismissal procedures, provided that the indemnity procedures was followed. This extended indemnity caters for your business needs and will be a benefit to any business owner who value flexibility. Contact your local friendly Express consultant regarding these terms and conditions.

By Express Employment Professionals SA

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