From midnight on 31 March 2015 a new dispensation kicked in for employees on fixed term or part time contracts and for clients who employed the services of labour brokers (called temporary employment services in the Labour Relations Act 66 of 1995).

By Ingrid Barbara Lewin: BA (Wits), LLB (Natal)

Among the range of amendments to the Labour Relations Act 66 of 1995 (LRA) which commenced on 1 January 2015, was the introduction of an amended Chapter 9, which is now called “Regulation of Non-Standard Employment”.

This amendment seeks to protect employees who are on fixed term or part time contracts, or who are employed by a labour broker and who earn below the statutory threshold which currently stands at R205 433.30.

Consequences of these provisions from 1 April 2015

• fixed term employees (those whose employment is for a limited or definite duration) are deemed to be in indefinite employment with the employer if there is no justifiable reason for their employment being of a limited or definite duration;
• if there is a justifiable reason for having employees on a fixed term contract, they must be treated “not less favourably” than permanent employees performing similar work unless there is a justifiable reason not to do so; and
• part time employees (those who work for more than 24 hours a month and are paid wholly or partly by reference to the time worked and who work for fewer hours than a comparable full-time employee) must be treated “on the whole not less favourably” than existing permanent employees unless justifiable reasons exist.

Justifiable reasons

From 1 April 2015, unless there is a justifiable reason for a continuation of the employees’ contracts on a fixed term basis, unjustified fixed term contract employees who were employed on 1 January 2015 would automatically have become permanent employees.

Also, justifiable fixed term contract employees, also employed on 1 January 2015, will be entitled to the same benefits as their permanent counterparts, as will part time employees, unless the employer can prove that “the different treatment is the result of a system that takes into account: seniority, experience or length of service; merit; the quality or quantity of work performed; or other criteria of a similar nature”.

Labour brokers

Labour broker employees who were employed to work for the same client on 1 January 2015 will be deemed to be the client’s employees from 1 April 2015.

The three month period commenced from midnight on 31 March 2015 for those labour broker employees who had worked for the same client since before the amendments came into effect.

They, too, must be treated “not less favourably” than their permanent counterparts once the 3-month period expires. Labour brokers and clients, who terminate the services of their employees prior to the expiry of the 3-month period in order to avoid their being deemed to be the client’s employee, will find themselves at the receiving end of an unfair dismissal dispute.