An assessment of section 198 of the labour relations act: problems and possible solutions

Abstract

Many people in South Africa are employed by temporary employment services.' Unbeknown to them from the time of their employment, they are bound to a three party employment relationship. Like ordinary businesses, TES have a client base to which they provide their employees' skills to when they are needed. Consequently, the prospect of being employed by a TES depends on the availability of work offered by the client base indicated above who happens to be a client of the TES, even though the latter is considered the employer in terms of this relatlonship. It is only when there is availability of work that the TES and the client conclude an agreement to use a particular or group of employees. These employees would then perform the work at the client's workplace and according to its rules. Significantly enough, the Labour Relations Act'is premised on the traditional employment relationship involving two parties: the employer and employee. Throughout the LRA, there are various provisions that regulate the resolution of different issues that may arise in an employment relationship. Yet there are no provisions beside section 198 of the LRA that regulate the different issues that may arise in this unique tri-partite relationship. This then raises the question as to whether or not the LRA protect temporary employees as it protects employees in the traditional employment relationship. In order to answer this pertinent question, three things need to be done. The first is to identify if there are any problems that temporary employees' experience in enforcing the provisions of the LRA. If there are any problems, the issue as to whether or not section 198 of the passes constitutional scrutiny must be explored. Should the said section pass or not pass muster, various solutions would then be offered to ensure that temporary employees rights are enforceable since the use of TES are encouraged given the high unemployment and poverty rate in South Africa.