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Extract from (Un)equal pay for work of equal value, Prof Darcy du Toit’s latest Weekly Comment published by LexisNexis on IR Network [ subscription required].
The new section 198A(3)(b) has the effect that – with limited exceptions – a TES employee who is placed with a client for more than three months is deemed to become the client’s employee on an indefinite contract. Whether this was what was happening in the present matter is unclear but, if so, Concord could obviously not have succeeded in obtaining an interdict to prevent Bidfreight from complying with section 198A.
But the more fundamental point underlined by this dispute is signalled by the TES’s “most novel” invocation of the “equal pay for equal work” principle. What has made labour broking most objectionable – and Concord’s argument even more “novel” – was precisely the practice of paying TES employees less than the client’s employees for performing the same work. This was made possible by the fact that labour brokers fall within the services sector whereas their clients are frequently located in sectors covered by bargaining council agreements requiring better terms and conditions of employment.
And that, too, is addressed by the new section 198(4D) which, in effect, requires labour brokers to comply with any bargaining council agreement applicable to the client. In theory that should bring about “equal pay for equal work” as contemplated by the LRA and BCEA, as opposed to Concord’s “novel” interpretation of the term.
Reported [2015] 10 BLLR 1024 (LC) with headnote:
Labour Court – Jurisdiction – Court lacking jurisdiction to entertain application by labour broker for order restraining client from employing assigned employees.