Employment Regulations Overview

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Questions and Answers

What is the interpretation of section 198A(3)(b) according to Assign Services?

Both the TES and client are equally responsible as employers.

The TES solely remains the employer after three months.

The TES continues to be the employer indefinitely.

The client becomes the sole employer after three months. (correct)

According to NUMSA's contention, what kind of employer relationship arises from section 198A(3)(b)?

A dual employer relationship.

A sole employer relationship. (correct)

A temporary employer relationship.

A joint employer relationship.

When the deeming provision under S 198(4A) is triggered, what may an employee do?

Refuse to work for either party involved.

Only institute proceedings against the TES.

Sue only the client regardless of the relationship.

Institute proceedings against both the TES and the client. (correct)

What occurs to the TES if the client opts to directly remunerate the employees?

The TES ceases to be a TES in respect of that worker. Signup and view all the answers

What does section 198(2) establish between the TES and the placed worker?

A statutory employment contract. Signup and view all the answers

What has to occur for the triangular employment relationship to continue?

The commercial contract between the TES and client must remain in force. Signup and view all the answers

What does the majority opinion state about the employer relationship during the first three months?

The TES serves as the employer. Signup and view all the answers

Which of the following best describes the dissenting judgment regarding the employer relationship?

The TES retains employer status regardless of the three-month trigger. Signup and view all the answers

What constitutes a justifiable reason for different treatment according to sections 198A(5), 198B(8), and 198C(3)(a)?

The application of seniority, merit, or performance quality Signup and view all the answers

What must happen if a dispute remains unresolved after conciliation according to section 198D?

It can be referred to the CCMA or BC for arbitration within 90 days Signup and view all the answers

Which type of employee does section 198D apply to regarding unfair treatment?

Both fixed-term/part-time employees and those who are not treated as permanent Signup and view all the answers

What does section 6(1) of the Employment Equity Act prohibit in relation to justifiable reasons for different treatment?

Differentiation based on race, gender, or disability Signup and view all the answers

What criteria might be considered in the distinction between treating fixed-term/part-time employees and permanent employees?

The type of work being performed Signup and view all the answers

Who is deemed the employer of the placed worker under the TES dynamic?

The client Signup and view all the answers

Under what condition can the employee still claim against the TES?

If there is a contract between the TES and the employee Signup and view all the answers

What situation does NOT trigger the deeming provision?

The client employs less than 10 employees Signup and view all the answers

Which condition would allow Section 198B not to apply?

Employee earning above BCEA threshold Signup and view all the answers

In a typical TES dynamic, who is considered the employee?

The placed worker Signup and view all the answers

What would happen if the commercial contract is not retained after the deeming provision is triggered?

The TES assumes full liability Signup and view all the answers

Which of the following is a category of employment that Section 198B does not apply to?

Fixed-term contract holders allowed by statute Signup and view all the answers

What legal body can workers sue if their rights are allegedly violated under the deemed employer condition?

The Commission for Conciliation, Mediation and Arbitration (CCMA) Signup and view all the answers

What is a typical outcome when the deeming provision is triggered in a TES relationship?

Liability may shift toward the TES Signup and view all the answers

Which scenario implies that the employer might not fall under the deeming provision?

The employer is a registered company with more than 10 employees Signup and view all the answers

What defines a 'temporary service' according to the specified section?

Work for a client as a substitute for an absent employee for up to three months. Signup and view all the answers

Under which condition can an employee be deemed to be an employee of the client?

If they perform temporary service as per the Act's specifications. Signup and view all the answers

What happens if a temporary employment service terminates an employee's service to avoid certain provisions?

It is deemed a dismissal. Signup and view all the answers

How should an employee deemed to be an employee of the client be treated?

Equally to other employees performing similar work. Signup and view all the answers

Which of the following statements about the employer's role in temporary services is true?

The client becomes the deemed employer under certain conditions. Signup and view all the answers

What is a possible reason for different treatment of employees performing similar work?

A justifiable reason for different treatment. Signup and view all the answers

What is the maximum duration an employee can perform a temporary service for a client?

Three months. Signup and view all the answers

What is required for an employee to be considered the client’s employee during temporary service?

Performance as per the provisions of the Act. Signup and view all the answers

What was the basis of Piet Wes Civils' claim regarding their employees' contracts?

The employees were employed under fixed-term contracts. Signup and view all the answers

Which section of the law was referenced regarding the justifiable reason for fixed-term contracts?

s 198B(4)(d) Signup and view all the answers

What was a key issue with the verbal contracts of employment?

They did not provide a written offer as required by law. Signup and view all the answers

What did Exxaro do that impacted the employees of Piet Wes Civils?

Terminated the service contracts on notice. Signup and view all the answers

In the context of the mentioned contracts, what does 'operational risk' refer to?

An uncertain future supply of contracts from clients. Signup and view all the answers

What was the main focus of the union's argument regarding the contracts?

That there was no legitimate reason for fixed-term contracts. Signup and view all the answers

What was incorrect about the possibility of future contracts according to the judgment?

They are part of an operational risk, not guaranteed events. Signup and view all the answers

What does s 198B(4)(d) specifically mention regarding fixed-term contracts?

Justifiable reasons for limited duration. Signup and view all the answers

What does the term 'indefinite duration contracts' imply in this context?

Contracts with no defined endpoint or condition. Signup and view all the answers

Which factor contributed to the determination that the written contracts could potentially hold issues?

The lack of written compliance with s 198B provisions. Signup and view all the answers

Study Notes

Temporary Employment Services (TES) and Employee Classification

Definition of Temporary Service: Work for a client by an employee for up to three months, typically as a substitute for a temporarily absent employee.
Employee Status: An employee performing temporary service under specified conditions may be deemed the client’s employee, subject to certain provisions.
Indefinite Employment: Once deemed, the employee is treated as employed on an indefinite basis by the client, unless specified otherwise.

Dismissal and Treatment of Employees

Termination Conditions: Any termination of services to avoid legal obligations related to deemed employment is classified as a dismissal.
Equal Treatment Requirement: Deemed employees must not be treated less favorably than comparable permanent employees without justifiable reasons.

Employer Relationships in TES Context

Assign Services v NUMSA Case (2018):
- Majority view: For the first three months, the TES is considered the employer; after that, the client becomes the sole employer.
- Dissenting view: The dual-employer interpretation holds; the TES does not cease to be the employer after three months.

Obligations of Temporary Employment Services

Liability of TES: The TES is liable only while it maintains a relationship with the client and continues to compensate the worker.
Termination of TES Role: If the client takes over direct remuneration, the TES ceases to be the employer in that triangular relationship.

Section 198B Conditions and Exemptions

Exemptions from Section 198B: Does not apply to employees earning above the BCEA threshold or those working for small employers (less than 10 employees) or businesses operational for less than two years.
Fixed-Term Contract Permissibility: Fixed-term contracts are valid if allowed by statute, sector determination, or collective agreement.

Legal Precedents and Clarifications

Piet Wes Civils CC Case (2019): Employees claimed fixed-term status due to project-specific contracts but were found to have indefinite contracts as the employer's legal obligations weren't honored.
Written Contract Requirement: Employees must receive written contracts to validate fixed-term status, which was not fulfilled in the cited case.

Justifiable Differentiation Criteria (Section 198D)

Permissible Reasons for Different Treatment: Differentiation based on seniority, merit, experience, work quality, or other similar criteria is allowed if not violating Employment Equity Act provisions.
Dispute Resolution Mechanism: Unresolved disputes within six months can be taken to the CCMA or Bargaining Council for arbitration, allowing for condonation of delays.

Treatment of Part-Time and Fixed-Term Employees

Application of Section 198D: Section only addresses the treatment of fixed-term or part-time employees concerning equal treatment with permanent employees.
Lack of Application: Once an employee becomes permanent, Section 198D is no longer applicable regarding treatment for the same work.

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Description

This quiz reviews the regulations regarding temporary service employment under the Act. It focuses on the definitions and conditions that apply to employees earning below the earnings threshold. Test your understanding of these key employment concepts.