The Courts, the Amendments and the Excluded: A Critical Analysis of the Labour Appeal Court’s Approach to Triangular Employment Relationships
Author Bhavna Ramji & Komnas Poriazis
Affiliations: Attorney, Casual Workers Advice Office (Law Centre), LLB LLM (KwaZulu-Natal); Legal researcher, Casual Workers Advice Office (Law Centre), BA (Hons) MA LLB (Witwatersrand)
Source: Industrial Law Journal, Volume 41 Issue 4, 2020, p. 2274 – 2293
This article traces the judicial responses to the externalisation of workers, particularly through labour brokers or ‘temporary employment services’. In the first section, it explains the constitutional and policy basis for legislative amendments that attempt to bring workers of labour brokers under the protection of the Labour Relations Act, with particular reference to ss 198A and 200B of the Act. In the second section, it considers a recent Labour Court judgment which appears to do the opposite. Specifically, the court seemed to narrow the potential for labour broker workers to protect their workplace rights using the amendments through its interpretation of a TES under the LRA. In the third section, the article argues that the Labour Court judgment reflects the approach apparent in a number of Labour Appeal Court (LAC) decisions. Three LAC judgments are critically discussed to demonstrate how these decisions have had the effect of protecting some of the most egregious examples of externalisation. The article concludes with possibilities for new areas of intervention for legislators and scholars, and reflects on the difficulties which face labour broker workers (and their representatives) if the position reflected in these decisions is not revised.