Protection for the vulnerable often exploited worker now in operation.

2015-06-13 04:40

The focus of this blog piece is that whilst section 198 of the  Labour Relations Act has been amended to protect the vulhnerable exploited worker earning below the threshold determined by the Minister, how far can or should the protection go?

Abuses and attempts by employers and employer organisations to legally and permissibly bypass stringent, constitutionally guaranteed imperatives necessitated the implementation of amendments to section 198 of the LRA. As I see it, unlike the captain of the Titanic, we must heed to potential icebergs ahead.

In fact a leading thought leader and law firm says that the now operational amendment to section 198 is going to open the flood gates to litigation.

I agree.

If the matter is not handled at the CCMA level specially, as often it is the first door to dispute resolution, pragmatically, practically as well as realistically then, like the National Credit Act, we are going to see a litigatory tsunami overwhelm our courts.

I seem to get the sense, after sharing my thoughts with labour lawyers and HR practitioners that the amendments to the Labour Relations Act, 66 of 1995 are going to open the flood gates to litigation due to the new provisions such as those providing for equal pay claims, Temporary Employment Services' employee claims and claims arising from fixed term contracts.

The general underlying thread of concern is not to take the human rights/constitutional angle of fair labour practice too far and that some degree of flexibility is required.

Practitioners and labour law professionals, so I get the sense, have to be alive to the possible outcome to the country's economy if we become dogmatic and fundamentalists.Like the courts I believe that we need to address the issues that we will face without fear or favour though the thread of social justice to protect the vulnerable and the exploited must always be on the back of our mind.

The amendments to the Labour Relations Act, 66 of 1995 are expected to give rise to an influx of litigation due to the new provisions such as those providing for equal pay claims, Temporary Employment Services' employee claims and claims arising from fixed term contracts.

Hence my advocation for a nuanced and balanced approach to the challenges that will flow through the portals of the CCMA and Bargaining Councils all the way to the labour courts.

Section 198 in particular raises a number of questions as to how the dispute resolution process will be affected by the amendments.

Section 198(4A)(a) provides that an employee may institute proceedings against the temporary employment service (TES), the client of the TES or both where there is joint liability or where the employee is deemed to be an employee of the client of the TES.

Aggrieved employees now have a choice. Section 198(4A)(c) further provides that any order or award made against one may be enforced against the TES, the client of the TES or both.

This, as Cliff Deker Hofmeyer claim on their website, "may seem easy enough to implement but practically it could become a nightmare for a TES's client."

Let's unpack Section 198(4A) (a).

On the face of it , it is easy enough to deal with. In the event that a claim is brought solely against the TES's client, the client may request that the TES be joined to the proceedings as an interested party. Such a joinder application would not suffice as a defence but would assist in bringing all potentially liable parties before the court or arbitration, thus mitigating some of the risk to the client.

So, as a lawyer would advise such a client would be wise to obtain an undertaking or indemnity from the TES as a protection against any adverse order that could ensue.Its a matter of a contractual nature between the TES and the client of course.

More problematic , as I see this is s198(4A)(c) which if, I purposively interpret it , means that a TES employee could approach a client with an award or order with only the TES's name on it and enforce such order or award against the client.

This is a statutory departure from the common law position.

There is a plethora of case law preceding this which will be used as a template for forthcoming judgments and the jurisprudence that will influence decisions. Commissioners ,HR consultants and labour law practitioners should remember the case of Ngema & Others v Screenex Wire Waring Manufacturers (2013) 34 ILJ 1470 (LAC), wherein the Labour Appeal Court (LAC) explored the substitution of the new employer in the place of an order granted against the old employer in the context of a s197 transfer.

It cited the case of Ex Parte Body Corporate of Caroline Court 2001 (4) SA 1230 (SCA) at paragraph 9 which stated, "it is a principle of our law that interested parties should be afforded an opportunity to be heard in matters in which they have a direct and substantial interest."

The LAC went on to state that, "there is no express exclusion in the LRA that an interested party, such as second respondent, should not be afforded an opportunity to be heard in a matter where it has a direct and substantial interest."

This was the pre amendment common law position which precluded a TES employee from enforcing an order or award against a client unless such client had been joined as a party to the proceedings.

The amendments contained in s198(4A)(c) now deviate from the common law position. While under the common law it is inconceivable that an order or award may be enforced against a client of a TES if only the TES is cited in the proceedings and on the order, under the statutory amendments this is possible. In the event that an order or an award is given against a TES, in obtaining the warrant the TES employee could conceivably, by virtue of the section, submit an affidavit requesting that both the TES and the client be cited for purposes of execution.

So if the section 198 amendments are to provide a life raft for the vulnerable exploited worker should we also consider a life buoy for the drowning employer as well?

Watch this space!

Thank you for reading. Now let's get your input!

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