The Impact of Temporary Employment Services on Employees' Fundamental Rights and Fair Labour Practices: Assessing the Effectiveness of Section 198A of the Labour Relations Act 66 of 1995
DOI:
https://doi.org/10.17159/1727-3781/2025/v28i0a19871Keywords:
Labour brokers, temporary employment services, triangular employment relationships, fair labour practices, fundamental rights, section 198A of LRAAbstract
This article examines the regulatory landscape governing temporary employment services (TES) in South Africa, with a focus on job security and the protection of fundamental labour rights. Over the years, the regulation of TES has been problematic, especially with regard to exercising fundamental rights and the right to fair labour practices. Despite legal regulation, TES continue to raise concerns about employees' exploitation and job security. Using a doctrinal and qualitative research methodology, this article explores the vulnerability of TES employees and the complexities inherent in triangular employment relationships. It interrogates constitutional issues, employer accountability and fairness in labour practices in light of landmark decisions like Nape and Assign Services.
While there is a recognised need for labour broking relationships, the research underscores persistent concerns surrounding their impact on workers, particularly those earning below the earnings threshold. The article highlights the difficulties of preserving the fundamental rights of and fair labour practices for TES employees. The complexity of the TES relationship is illustrated by means of case law on unfair dismissals and unfair labour practice disputes. The article concludes by making recommendations to bolster the protection of TES employees and to reinforce equitable labour standards.
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Affordable Medicines Trust v Minister of Health 2006 3 SA 247 (CC)
Assign Services (Pty) Limited v National Union of Metalworkers of South Africa 2018 5 SA 323 (CC)
Assign Services (Pty) Ltd v CCMA 2015 11 BLLR 1160 (LC)
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Mahlamu v Commission for Conciliation, Mediation and Arbitration 2011 4 BLLR 381 (LC)
Nape v INTCS Corporate Solutions (Pty) Ltd 2010 31 ILJ 2120 (LC)
Old Mutual Life Assurance Co SA Ltd v Gumbi 2007 5 SA 552 (SCA)
SA Post Office Ltd v Mampuele 2010 31 ILJ 2051 (LAC)
SAMA v McKenzie 2010 3 SA 601 (SCA)
Sidumo v Rustenburg Platinum Mines Ltd 2008 2 BCLR 158 (CC)
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Walljee v Capacity Outsourcing 2012 33 ILJ 1744 (LC)
Legislation
Basic Conditions of Employment Act 75 of 1997
Constitution of the Republic of South Africa, 1996
Employment Equity Act 55 of 1998
Labour Relations Act 66 of 1995
Labour Relations Amendment Act 6 of 2014
International instruments
Abolition of Forced Labour Convention 105 of 1957
Discrimination (Employment and Occupation) Convention 111 of 1958
Equal Remuneration Convention 100 of 1951
Forced Labour Convention 29 of 1930
Freedom of Association and Protection of the Right to Organise Convention 87 of 1948
Minimum Age Convention 138 of 1973
Private Employment Agencies Convention 181 of 1997
Right to Organise and the Collective Bargaining Convention 98 of 1949
Worst Forms of Child Labour Convention 182 of 1999
Internet sources
COSATU Labour Brokers 2019 Cosatu Concedes on Labour Brokers http://www.cosatu.org.za/show.php accessed 13 May 2025
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