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Click to edit Master title style,Click to edit Master text styles,Second level,Third level,Fourth level,Fifth level,*,LABOUR LAW REVIEW-,Addressing labour brokers-,NABC,OVERVIEW,Background and progress,Proposed clauses amending LRA&their consequences,Related amendments to BCEA&EEA,Background&Progress to date,Aim:,To introduce amendments to regulate contract work,subcontracting and outsourcing,address the problem of labour broking and prohibit certain abusive practices.,2.Nedlac process:,Discussion document introduced July 2021,Conclusion of discussion on labour brokers in October,Labour(COSATU&NACTU)called for labour broking to be outlawed,Fedusa called for a combination of regulation and enforcement,Business called for co-regulation and proper enforcement,Progress cont.,Draft amendments completed by 13 November 2021 on the following:,i.amendments to s.198 of LRA for inclusion in LRA Amendment Bill;,ii.Proposed amendments to LRA,BCEA and EEA to deal with outsourcing,sub-contracting and protection of vulnerable employees.,Explanatory memorandum dealing with legal and constitutional issues arising from prohibition,Proposals to deal with labour broking,Amend section 198 of LRA to prohibit:,“198.Labour broking prohibited,No person may employ any person for the purpose of contracting that person to work for another person(“the client).,A person placed to work for another person(the client)is the employee of the client.,For the purposes of this section,“place means to place,recruit,procure or supply persons to work for another person.,Proposals to deal with labour broking,Definitions,Means any person,institution or organisation,including government who employs and provides work to an employee,directly supervises,remunerates or tacitly or expressly undertakes to remunerate such employee for services rendered by such employee.,Means any person who is employed by or who works for an employer and who receives or is entitled to receive any remuneration and who works under the direction and supervision of an employer,Means a person who works for or supplies Services to a client or customer as part of the persons business,undertaking or professional practice.,Consequences of prohibiting labour broking,Temporary employment services/private employment agencies can continue to provide services and to place people in work.,An employee who is placed will always be the employee of the employer with whom he/she is placed TES cannot be employer.,Additional amendments to LRA,BCEA and EEA will increase protection of workers to achieve overall aim.,Likely challenge on basis of limitation of section 22 rights of constitution.,Alternative proposal to deal with labour broking,2.Restriction of Temporary Employment Service,No person may employ any person for the purpose of contracting the employee to work for another person unless:,(a)that person is registered as a temporary employment service,(b)that person has concluded a written contract,the employee performs only temporary work for the client.,(2)Temporary work defined as;,(a)work as a temporary substitute,(b)work of a temporary nature not exceeding 3 months,any other category of work determined to be temporary work by the Minister,by a sectoral determination or by a bargaining council agreement.,Consequences of alternative to prohibition,TESs will only operate in defined categories of temporary work;,In those categories,the TES may be the employer;,In any other categories of work that does not fall within the specified categories,the client will be the employer eg.temporary work for longer than 3 months.,Where TES is the employer,the client and the TES will be jointly and severally liable for payment of wages and compliance with labour legislation and contractual conditions of employment.,Overview of options,Prohibit labour brokers,Employee protected against client(employer),Dismissal protection iro client,Equal pay for work of equal value applies,Constitutionality?,Reworked 198,Employee protected agains both client and TES,client liable for indefinite placements,Temporary workers protected for dismissal iro TES;other protected iro client,Genuine temporary workers to receive equal pay to permanent workers,Need to define categories of temp work and to regulate TESs,Other amendment relating to labour broking,sub-contracting&outsourcing,LRA,Employee presumed to be employed indefinitely unless employer can justify employment for fixed term(s.200B);,Employer includes persons for whom employee works irrespective of who pays the worker,If there is more than one employer,both are liable for failure to comply with any labour legislation,Independent contractor defined to prevent disguising of employment relationship,Contract of employment defined so that agreements to work may also constitute contracts(recommended by SA Law Commission),Other amendments cont.,2.BCEA,Minister may adjust minimum rates or minimum increases in remuneration,Minister may prohibit or regulate sub-contracting,part-t
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