Most Read Contributor in South Africa, September 2016
The proposed amendments to SA's labour laws provide a
compromise between the competing interests of business and labour,
but will have significant implications for employers and employees,
according to Brian Patterson, employment law director at Edward
Nathan Sonnenbergs (ENS).
Patterson, speaking at the ENS employment law seminar on
Wednesday, said that the constitution had "saved us" from
a ban on labour broking.
SA had lost more than 50,000 jobs in the first quarter of the
year, and brokers currently employed more than one million people
in the country, he said, adding that labour brokers had a role to
play in SA.
"But they have been guilty of abuse over the years,"
Because of this, labour broking needed to be regulated and the
government had tried to balance the competing interests of business
and labour, Patterson said.
The use of labour brokers, fixed-term and part-time workers
would be much more heavily regulated when the amendments came into
effect, which could happen towards the end of the year.
"Firstly, labour-broker workers working for clients who
operate in industries falling under bargaining councils, will be
entitled to the same terms and conditions of employment that are
applicable to the employees employed by the clients in the
"It will not be possible, therefore, for an employer to
avoid paying bargaining council minimum wages and benefits through
the use of labour brokers," Patterson said.
Secondly, employers using labour brokers on an on-going basis to
avoid the responsibility of being the employer, would under the
amended act be deemed to be the employer of the workers supplied by
the labour broker.
This could only be avoided where the worker was supplied to meet
a genuinely temporary need.
Patterson said that the amendments would also mean that
labour-brokers deemed to be employers of the client had to be given
terms and conditions of employment similar to those of the
employer's permanent employees doing similar work.
"We are dealing with a new paradigm," he said, adding
that employers needed to determine warranties and liabilities when
using labour brokers, and contracts should be "properly looked
The proposed amendments to the Labour Relations Act (LRA) and
the Basic Conditions of Employment Act (BCEA), which were approved
by cabinet in March, had caused controversy due to potential
implications for both employers and employees, he said.
Among the most pressing of concerns held by employers were the
proposed limitations to ways of changing workplace conditions and
the constricted parameters for using fixed-term workers.
"In light of these proposals, businesses face the loss of
an important mechanism for changing workplace terms and
"Furthermore, should the proposed amendments be
implemented, new conditions on the employment terms of atypical
workers will pose significant challenges for employers," he
Patterson said that included in the proposed changes to the LRA
was a ban on employers being able to retrench workers where they
refused to agree to changes in terms and conditions that were
objectively necessary to meet the employer's operational
"This will make changing workplace terms and conditions a
major challenge for employers."
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