Non-standard employment.pptx

Non-standard employment TES AND S 198A  Labour broker Prior to 2015, LRA only regulated temporary employment Deeming service (TES) and ‘deem- S 198 like’ After 2015, LRA addresses non-standard employment al...

Non-standard employment TES AND S 198A  Labour broker Prior to 2015, LRA only regulated temporary employment Deeming service (TES) and ‘deem- S 198 like’ After 2015, LRA addresses non-standard employment also via: provisions: General observation: These provisions are S 198A-D (employees earning below BCEA threshold) Sections  Employed by TES  Employees on fixed term contracts not so much about the definition of employee, but rather about the 198, 198A-D  Part-time employees conditions of employment and/or and 200B of identity of employer. the LRA S 200B (no threshold requirement)  Liability for employer’s liability (ie a third party becomes liable as if the employer under certain circumstances ) Why use TES?  Do not want the hassle of managing employees (payroll, leave, discipline, dismissals etc)  Flexibility  Needs intermittent Deeming and ‘deem-like’ provisions: S 198 What is TES? Section 198(1) of the LRA: (1) In this section, 'temporary employment service' means any person who, for reward, procures for or provides to a client other persons- (a) who perform work for the client; and (b) who are remunerated by the temporary employment service. Who is the employer/employee? Section 198(2) of the LRA: (2) For the purposes of this Act, a person whose services have been procured for or provided to a client by a TES is the employee of that temporary employment service, and the temporary employment service is that person's employer. Typical TES dynamic n trol e/co Commercial c rk pla relationship Wo Remuneration Employee – employment relationship - employer TES: Who is liable for what? 198 (4) TES and the client are jointly and severally liable if the TES, in respect of any of its employees, contravenes—  a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;  a binding arbitration award that regulates terms and conditions of employment;  the Basic Conditions of Employment Act; or  a sectoral determination made in terms of the Basic Conditions of Employment Act But what about dismissal?  NUMSA v Abancedisi (2013) 34 ILJ 3075 (SCA) Suffice it to reiterate that it is well for labour brokers to bear in mind that the intention of the Act — which governs labour relations with the object, inter alia, to give effect to the employee rights contained in s 23 of the Constitution — is that employment may only be terminated upon the employee's misconduct, incapacity or operational requirements and these reasons must meet the requirements of substantive and procedural fairness set out in the Act. Is the TES an employer in the conventional sense? All that is required for the TES to constitute a statutory employer in terms of section 198 of the LRA is that it places workers with clients for a fee and remunerates those workers. Of course, this is less onerous than the test for establishing conventional employment either at common law or in terms of the relevant definitions. It is therefore incorrect to contend that a TES is usually in an employment relationship with workers it places with clients. Assign v NUMSA (2018) 39 ILJ 1911 (CC)  A TES – situation? A enters into a service level agreement with B, requiring B to render a pallet reconditioning service and to provide A with refurbished pallets at a fee per item. B employs 200 employees to repair the pallets. Can it be said that B is a TES? = s 198(1) of the LRA ….any person who, for reward, procures for or provides to a client other persons- (a) who perform work for the client; and (b) who are remunerated by the temporary employment service. Victor & others Chep entered into a service level agreement with C-Force, requiring C-Force to render a pallet v Chep SA (Pt reconditioning service and to provide Chep with refurbished pallets at a fee per item. C-Force y) Ltd & others employed 200 employees to repair the pallets. Can it be said that C-Force is a TES? If so s 198A (2020) 41 ILJ 2802 (LA has potential application C) CCMA: Yes LC: C-Force did not meet the definition of a TES as its contract with Chep required it to deliver refurbished …any person who, for reward, procuresitems for orat a pricetoper provides unitother a client and not persons- (a) who perform worklabour. for the client; and (b) who are remunerated by the temporary employment service.  On the facts, LAC concluded Commissioner was correct - C- Force = TES Victor & others v Chep SA (Pt Workers worked at Chep’s premises   the requisite raw materials, plant and equipment are supplied and y) Ltd & others  maintained by Chep; pallet conditioning forms an integral part of Chep’s business; C­Force has no discretion as to how the work is to be performed; control (2020) 41 ILJ 2802 (LA   the SLA prescribes the desired results and the manner in which C) these results are to be achieved, during the hours prescribed by Chep and in accordance with Chep’s policies and instructions;  Chep exercises overall control over the workers’ activities, sets production targets and provides detailed rules of conduct;  Chep may require a worker to immediately cease to provide services due to non-compliance with its rules;  Chep has the right to instigate disciplinary proceedings against the workers.  198A → TES employees earning below earnings threshold (1) In this section, a 'temporary service' means work for a client by an employee- (a) for a period not exceeding three months; (b) as a substitute for an employee of the client who is temporarily absent; (3)For the purposes of this Act, an employee- or (a) performing a temporary service as contemplated in subsection (1) for the client (c)is the in aemployee categoryofofthe temporary work and foremployment any period services of time in termsisofdetermined which section to 198 be (2); or a temporary service by a collective agreement concluded in a bargaining (b) not performing council, a sectoral such temporary service determination for the or a notice client is- by the Minister, in published (i) deemedwith accordance to bethe theprovisions employee of ofthat client and (6) subsections thetoclient (8).is deemed to be the employer; and (ii) subject to the provisions of section 198B, employed on an indefinite basis by the client. So what? This is referred (4) Thetermination by the temporary employment services of an employee's like other servicewith a client, whether at the instance of the temporary employment dismissals service or the client, for the purpose of avoiding the operation of subsection (3) (b) or because the employee exercised a right in terms of this Act, is a dismissal. (5) An employee deemed to be an employee of the client in terms of subsection (3)(b) must be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment. – See s 198D(2)  Who is the employer once the deeming provision applies? Assign Services v NUMSA (2018) 39 ILJ 1911 (CC) Assign Services, a TES, placed 22 workers with Krost, a number of whom were members of the NUMSA. Assign Services’ view was that section 198A(3)(b) created a dual employer relationship, while NUMSA contended that a sole employer relationship resulted from the section. The majority: for the first three months the TES is the employer and then subsequently the client becomes the sole employer. Dissenting judgment: the dual employer interpretation correct -the language of the LRA does not expressly state that the TES would cease to be the employer after three months. What happens to the TES after the deeming provision is triggered? S 198(4A) If the client … is deemed to be the employer of an employee in terms of section 198A(3)(b)— (a) the employee may institute proceedings against either the temporary employment service or the client or both the temporary employment service and the client; (b) … (c) any order or award made against a temporary employment service or client in terms of this subsection may be enforced against either.  So what, according to Assign, happens to the TES after the deeming provision is triggered? A TES’s liability only lasts as long as its relationship with the client and while it (rather than the client) continues to remunerate the worker. Nothing in law prevents the client and the TES from terminating their contractual relationship upon the triggering of section 198A(3)(b), with the client opting to remunerate the placed employees directly. If this happens, the TES that placed the worker will cease to be a TES in respect of that worker because it will no longer meet the requirement in section 198(1) of remunerating the worker. The TES will then fall out of the relationship entirely. 198(2) gives rise to a statutory employment contract between the TES and the placed worker, which is altered in the event that section 198A(3)(b) is triggered. This is not a transfer to a new employment relationship but rather a change in the statutory attribution of responsibility as employer within the same triangular employment relationship. The triangular relationship then continues for as long as the commercial contract between the TES and the client remains in force and  [Section 198(4A)]... does not purport to What determine who an employer may be from time to time. It provides that, while the happens to client is the deemed employer, the the TES after employee may still claim against the TES as long as there is still a contract between the the deeming TES and the employee. The client is deemed the employer of provision is the placed worker and can thus be sued triggered? directly in the CCMA or the Labour Court… Assign Services v NUMSA (2018) 39 ILJ 1911 (CC) Typical TES dynamic n trol e/co Commercial c rk pla relationship Wo Employee – employment relationship - employer Typical TES p - dynamic if n sh i ti o commercial rela Employer Commercial t en relationship contract p lo y m em retained e e– loy er after p Em ploy deeming em Employee provision triggered Potential for TES liability Typical TES sh ip - n dynamic if la ti o t re Employer n commercial o ym e l contract not e mp e e– retained aftermployyer E pl o deeming em Employee provision triggered TE S Typical TES Worker – employment relationship - Client dynamic if commercial contract not retained after deeming Employee Employer provision triggered  Non- standard NSE: FIXED-TERM AND PART-TIME employmen EMPLOYEES t Section 198B does not apply… Employee earning above BCEA threshold Employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years If a fixed-term contract is permitted by any statute, sectoral determination or collective agreement.  What is a fixed-term contract? (1) For the purpose of this section, a 'fixed-term 198B Fixed- contract' means a contract of employment that terminates on- term (a) the occurrence of a specified event; contracts (b) the completion of a specified task or project; or with (c) a fixed date, other than an employee's normal or agreed retirement age, subject to subsection (3). employees When may a fixed-term contract be concluded? earning (3) An employer may employ an employee on a fixed- below term contract or successive fixed-term contracts for longer than three months of employment only if- earnings (a) the nature of the work for which the threshold n employee is employed is of a limited or definite s duration; or a tio B(4) c (b) the employer can demonstrate any other stifi 198 o f ju i n s justifiable reason for fixing the term of the contract. t d Lis vide pro  Working as an attendant Working as an usher at a sports event at the ICC on construction of ship 198B(4) Without limiting the generality of subsection (3), the conclusion of a fixed-term contract will be justified if the employee- (a) is replacing another employee who is temporarily absent from work; (b) is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; Justifications (c) is a student or recent graduate who is employed for thePpurpose iet of being trained or gaining work experience in order to enter a job or Wes for fixed- profession; (d) is employed to work exclusively on a specific project that term has a limited or defined duration; contracts (e) is a non-citizen who has been granted a work permit for a defined period; (f) is employed to perform seasonal work; (g) is employed for the purpose of an official public works scheme or similar public job creation scheme; (h) is employed in a position which is funded by an external source for a limited period; or (i) has reached the normal or agreed retirement age applicable in the employer's business.  If there is no justification for fixed-term contract: 198B(5) Employment in terms of a fixed-term Fixed term contract concluded or renewed in not justified: contravention of subsection (3) is deemed What are to be of indefinite duration. the consequenc (9) … an employer must provide an … employee employed on a permanent es? basis with equal access to opportunities to apply for vacancies.  Fixed term longer than 3 months…justified (8)(a)…must not be treated less favourably than an employee employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for Fixed-term different treatment. See s 198D(2) justified: (9) … an employer must provide an employee employed in terms of a fixed-term contract … with equal access What are to opportunities to apply for vacancies. the (10) (a) An employer who employs an employee in terms of a fixed-term contract for a reason contemplated in ss consequenc rk (4)(d) for a period exceeding 24 months must … pay the employee on expiry of the contract one week’s pay for es? w to c o each completed year of service as calculated by s 35 of the BCEA. d e ifi or loy pec ited (b) … unless the employer offers the employee p s im m e na al employment or procures employment for the i s o as … ly h on; employee with a different employer, which ) iv ae t i d commences at the expiry of the contract and on the 4( lus t th rat c u same or similar terms. ex ojec d d pr fine de  198B(6) An offer to employ an employee on a Contract/ fixed-term contract or to renew or extend a renewal must fixed-term contract, must- be in writing (a) be in writing; and (b) state the reasons contemplated in subsection (3)(a) or (b).  Piet Wes Civils CC v AMCU (2019) 40 ILJ 130 (LAC) ◦ Piet Wes Civils provided certain services to a client, Exxaro Coal ◦ Employees of Piet Wes were employed on contracts of employment (some written, some verbal) which made their employment subject Demonstrati to the employers’ contracts with Exxaro remaining in place ng the ◦ Exxaro terminated the service contracts on protection of notice and Piet Wes gave one month’s notice of termination of employment to their section employees 198B ◦ Piet Wes claimed that the employees were employed on fixed-term or limited duration contracts in circumstances where there was a justifiable reason under s 198B(4)(d), ie the employees had been employed to work exclusively on a specific project that had a limited or defined duration ◦ The union argued that the contracts were indefinite duration contracts in terms of s  ork w to c e d ifi or loy pec ited p s im e m a l n is y o as a ) … el t h n; In respect of the written contracts: (d siv ha tio 4 lu t t c u ra ex ojec d d pr fine ◦ a possibility that future contracts may not be de supplied by an employer’s clients (eg Exxaro) … not a specified event which in future will arise, nor is it Piet Wes related to the completion of a task or project or a fixed date, but is an operational risk which may Civils CC v occur, one under which any business operates AMCU  n loya e mp ff e r to -term In respect of the verbal contracts: n o fi xed r (6) A n a e w o t r a ct, ◦ These employees were not provided with written B o 198 loyee to ren m con offer of employment as required by s 198B(6) p r r em ract o xed-te t and ◦ The provisions of s 198B had thus not been con nd a fi g; e ext t- ritin asons ion complied with s in w e t mu ) be e the r ubsec ◦ These employees were thus not employed on the (a s tat ed in s basis of a limited duration contract but rather for (b) p lat tem b). an unlimited duration and they should have been con ) or ( Piet Wes (3)( a retrenched Civils CC v Consequently: AMCU ◦ All employment contracts entered into were of an indefinite duration as contemplated by s 198B(5) and could not be terminated on notice without following fair dismissal procedures ◦ Employees should be reinstated and retrenchment procedure should be followed  S 198B does not outlaw fixed-term contracts, but regulates their conclusion. Fixed term contract for a period in excess of three months permitted, provided certain conditions are met, namely: the nature of the work for which the employee is Remember employed is of a limited or definite duration; or the employer can demonstrate any other justifiable … reason for fixing the term of the contract. Once deeming provision applies, s 198B has no Dismissal/ULP → s further application 191 In case of fixed-term contract not subject to s 198B, non-renewal might still be regarded as a dismissal  Employee earning above BCEA threshold Employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years Section If a fixed-term contract is permitted by any statute, sectoral determination or collective agreement. 198C does not apply… employee who ordinarily works less than 24 hours a month for an employer  during an employee's first three months of continuous employment with an employer  (1) … a part-time employee is an employee who is remunerated wholly or partly by reference to the time that the employee works and who works less hours than a comparable full-time employee … Part-time employer must- employees: (a) treat a part-time employee on the whole not Section less favourably than a comparable full-time employee doing the same or similar work, unless 198C of the there is a justifiable reason for different treatment; and See s 198D(2) LRA (b) provide a part-time employee with access to training and skills development on the whole not less favourable than the access applicable to a comparable full-time employee. (5) … must provide a part-time employee with the same access to opportunities to apply for vacancies as it provides to full-time employees.  (2) For the purposes of sections 198A(5), 198B(8) and 198C(3)(a), a justifiable reason includes that the different treatment is a result of the Differentiati application of a system that takes into account- on: Section (a) (b) seniority, experience or length of service; merit; 198D of the (c) the quality or quantity of work performed; or LRA (d) any other criteria of a similar nature, and such reason is not prohibited by section 6(1) of the Employment Equity Act, Act 55 of 1998.  → CCMA/BC Section Within six months after the act or omission 198A-C concerned disputes:  If unresolved after conciliation → CCMA or BC for arbitration within 90 days. Section  Condonation possible 198D S 198D only to decide UL Whether But once employeeP fixed-term/part-time becomes permanent, employee is being Whether employee is but not treated the treated less favourably employed on an same as other than permanent indefinite basis permanent employees, employees performing 198D has no the same or similar application work