Proposed Changes to the LRA regarding Labour Broking

Transcription

1 Proposed Changes to the LRA regarding Labour Broking What the current LRA says Section 198 of the current LRA provides for the following: 1. A definition of who a labour broker worker is works for a client but is paid by the labour broker 2. Clarification that the worker is employed by the labour broker, not the client company 3. An independent contractor is not an employee of a labour broker 4. The labour broker and the client are jointly and severally liable if the labour broker breaks: A bargaining council agreement A binding arbitration award Provisions of the BCEA A sectoral determination 5. Two or more bargaining councils can agree to bind a labour broker, labour broker workers and clients of labour brokers to their (existing) agreements if they fall within the combined registered scope of the councils. 6. This will be binding only if the agreements of the councils have been extended to non-parties. 7. Two or more bargaining councils can make collective agreements that will bind labour brokers, labour broker workers and labour broker clients if they fall within their combined registered scope. 8. Such an agreement will be binding only if: Each council has asked the Minister of Labour to extend the agreement to non-parties The Minister is satisfied that the terms of the collective agreement is not more onerous than what is the bargaining council agreement The Minister extends the agreement as requested. 1

2 The Proposed Amendments Motivation for the amendments: Intended to give more protection to labour broker workers, fixed term contract workers and part-time workers The majority of the protections will only come into effect after a worker has worked for 6 months This in order to create a balance between protecting such workers and the need for short-term flexibility. The existing section 198 (Temporary Employment Services) is retained, with some additions, and continues to apply to all workers. Four new sub-sections are added: Section 198A applies to labour broker workers Section 198B applies to fixed term contract workers (who are not labour broker workers) Section 198C applies to part-time workers Section 198D contains general provisions that apply to 198A, 198B and 198C. Changes to Section 198: The section continues to apply to all workers but some additions are made, with the main intention of limiting the employment of workers by labour brokers to genuinely temporary work. The additions include the following: 1. A worker bringing a claim for which the labour broker and the client are jointly and severally liable can institute the claim against either party or both and can enforce an award against either or both 2. A labour inspector can secure and enforce compliance against either or both 3. A labour broker can t employ workers on terms and conditions of employment that are not allowed by the LRA, a sectoral determination or a bargaining council agreement that applies to the client 4. The Labour Court can rule whether a contract between a labour broker and a client complies with the LRA, a sectoral determination or a bargaining council agreement and make an award 5. A labour broker must be registered in order to operate but can be claimed against even if not registered 6. A labour broker must give a worker sent to a client written particulars of employment in line with section 29 of the BCEA (Written Particulars of Employment) 2

3 New Section 198A Labour Brokers and workers earning below the BCEA threshold (currently R ) 1. LRA will recognize only labour broker workers doing genuinely temporary work, now defined as temporary services 2. If a worker is not employed to perform temporary services then regarded as the worker of the client, not the labour broker 3. Effectively, workers working for more than 6 months will be treated as workers of the client 4. Temporary services can be regulated by a bargaining council agreement, a sectoral determination or a Ministerial notice 5. A labour broker s termination of a worker s assignment with a client is a dismissal. This is an attempt to prevent abuse of the six month temporary work arrangement and means the worker can contest the fairness of the dismissal. 6. Workers regarded as employed by the client must get the same conditions as other permanent workers doing the same or similar jobs. 3

4 New Section 198B Fixed Term Contracts for workers earning less than the BCEA threshold Exclusions: The section does not apply to workers who are employed where a statute, sectoral determination or bargaining council agreement allows for fixed term contracts. It also does not apply to employers with less than 10 workers, and to employers with less than 50 workers who has been in business for less than 2 years. 1. An employer can employ a worker on a fixed term contract (or successive contracts) for up to 6 months 2. The period of 6 months can be varied by a sectoral determination or a bargaining council agreement 3. An employer who employs a worker on a fixed term contract or who renews or extends the contract must do so in writing 4. The employer must also state the reason that justifies why a fixed term contract 5. There is a non-exhaustive list of justifiable reasons for fixing a contract 6. In any proceedings the onus is on the employer to prove the reason for the fixed term contract is justified and that the term of the contract was agreed 7. A worker on a fixed term contract must be offered the same opportunities to apply for (permanent) jobs as other workers 8. A worker who is employed for longer than 6 months is regarded as permanent 9. Such a worker must be treated in the same way as other permanent workers doing the same or similar work 10. An employer can employ a worker on a period longer than 6 months if the nature of the work is of a limited or definite duration or the employer can show any other justifiable reason 11. A worker working on a fixed term contract of longer than 24 months must be paid 1 week s pay for every year of service if the employer does not offer the worker a permanent job or finds the worker an equivalent job with another employer within 30 days of the contract expiring. 4

5 New Section 198C Part-time workers earning under the BCEA threshold Exclusions: The provisions of this section do not apply: To workers who work for less than 24 hours per month In the first 6 months of employment To employers with less than 10 workers or employers with less than 50 workers who have been in business for less than 2 years 1. Part-time work is defined, as is full-time work 2. Employers must treat part-time workers no less favourably than other workers doing the same or similar jobs 3. They must provide part-time workers with the same access to training and skills development 4. They must also provide such workers with the same access to job opportunities as full-time workers. 5

6 New Section 198D General Provisions for the Section 198 sub-sections 1. Disputes about the interpretation or application of sections 198A to 198C can be referred to the CCMA or bargaining council for conciliation and arbitration. 2. Justifiable reasons for different treatment can include: Seniority, experience or length of service Merit The quality or quantity of work done Any other similar reasons that are not prohibited by the Employment Equity Act (section 6(1), dealing with discrimination) 6