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The legal framework for employees engaged in temporary employment in South Africa
Dissertation (LLM) --University of Pretoria, 2021
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2022
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| _version_ | 1867613508078665728 |
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| access_status_str | Open Access |
| author2 | Newaj, Kamalesh |
| author_browse | Newaj, Kamalesh |
| author_facet | Newaj, Kamalesh |
| collection | Thesis |
| dc_rights_str_mv | © 2022 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Dissertation (LLM) --University of Pretoria, 2021 |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/83657 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:37:15.598Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2022 |
| publishDateRange | 2022 |
| publishDateSort | 2022 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/83657 The legal framework for employees engaged in temporary employment in South Africa Newaj, Kamalesh u20809744@tuks.co.za Ntuli, Nqobile Xoliswa UCTD Temporary Employment Services ILO’s Private Employment Agencies Convention Namibia European Union (EU) Dissertation (LLM) --University of Pretoria, 2021 This research papers starts by looking at the historic regulation of temporary employment services (TES) before 2015. What becomes clear is that, prior to 2015 the TES was being used to shield the client from employer obligations in terms of the Labour Relations Act (LRA). This led to a lot of abuses being perpetuated by the client against the placed worker, but the client was not accountable to the placed worker. These abuses led to trade unions pushing for the banning of the TES. However, the legislature chose to rather regulate the use of TES’s and extend certain protections to placed employees earning below the threshold set out in the Basic Conditions of Employment Act (BCEA). This led to the 2014 LRA amendments which came into effect in 2015. Importance has been placed on the deeming provision which is created by s 198A(3)(b) of the LRA, which provides that a placed employee who is no longer performing a ‘temporary service’ is deemed to be an employee of the client for purposes of the LRA. The Constitutional Court in Assign Services (Pty) Limited v NUMSA has interpreted this provision to mean that once the provision is triggered, the client becomes the sole employer of the placed employee. The Constitutional Court however was not unanimous, which fuels the debate further. This research paper has also looked at how the ILO’s Private Employment Agencies Convention 181 has influenced the regulation of TES employment in South Africa and the concept of decent work. Furthermore, a comparative analysis of the regulation of TES’s in Namibia and the European Union (EU) has been done. The conclusion reached is that labour brokers cannot be banned as this will be inconsistent with international law. Furthermore, the ban of labour brokers is likely to be found to be unconstitutional in that it unreasonably and disproportionately limits the employer’s right to choose its trade trade, occupation or profession freely. As such, it is concluded that any abuses by the use of labour brokers can be prevented through better regulations. Due to the pandemic caused by COVID-19 and its anticipated lasting effect, labour market flexibility has not only become necessary but also urgent in order to grow the economy and reduce unemployment. The key is therefore to promote labour market flexibility whilst also protecting employees from being treated as commodities. LLM (Mercantile Law) LLM (Mercantile Law) Unrestricted 2022-02-07T10:43:49Z 2022-02-07T10:43:49Z 2022-04 2021 Dissertation * A2022 http://hdl.handle.net/2263/83657 en © 2022 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Temporary Employment Services ILO’s Private Employment Agencies Convention Namibia European Union (EU) The legal framework for employees engaged in temporary employment in South Africa |
| title | The legal framework for employees engaged in temporary employment in South Africa |
| title_full | The legal framework for employees engaged in temporary employment in South Africa |
| title_fullStr | The legal framework for employees engaged in temporary employment in South Africa |
| title_full_unstemmed | The legal framework for employees engaged in temporary employment in South Africa |
| title_short | The legal framework for employees engaged in temporary employment in South Africa |
| title_sort | legal framework for employees engaged in temporary employment in south africa |
| topic | UCTD Temporary Employment Services ILO’s Private Employment Agencies Convention Namibia European Union (EU) |
| url | http://hdl.handle.net/2263/83657 |