Just over a year ago the Concourt handed down judgment in the Assign Services (Pty) Ltd v Numsa and Others (case number CCT194/17) case. This judgment dealt with the question of who has an employment relationship with a labour broker employee, deployed at the client of a labour broker for in excess of three months. The Assign Concourt judgment concluded that the so-called “dual employment interpretation is the correct one” meaning that after three months, the client of the labour broker, referred to as a temporary employment service (TES) in the Labour Relations Act, is the only employer for the purpose of the Labour Relations Act, whilst the labour broker remains the employer for the purposes of the Basic Conditions of Employment Act.
A recent CCMA arbitration award (dated 22 March 2019) addressed aspects of the Concourt judgment in that the Applicants made application to be deemed indefinite employees of the client of the labour broker, at which they had been deployed for in excess of three months, and furthermore sought “to receive the same benefits as employees of the client” performing the same or similar work. It was not in dispute that the three applicants were employed by the labour broker, two of which were employed as fork lift drivers, and the third as an acceptance clerk. It was furthermore not disputed that the three labour broker employees had been deployed at their client for in excess of three months. Indeed, the client of the labour broker also conceded that it was the applicant’s employer for purposes of the Labour Relations Act.
This case dealt with section 198A (3)(b)(i) and (ii) as well as section 198A (5) of the Labour Relations Act. It was noteworthy in this case that it was undisputed that all forklift drivers deployed at the labour brokers premises, were employed by the labour broker, as the client did not employ any forklift drivers themselves directly. In motivating their claim for permanent employment with the client, their application to receive the same benefits as employees of the client’s employees performing the same or similar work, the applicants argued that even though the client did not employ any forklift drivers themselves, they were of the opinion that “the position of cargo controller is sufficiently similar to theirs and thereof the position of cargo controller ought to be regarded as the comparator”. In simple language, the forklift driver Applicants were of the view that even though the client did not employ forklift drivers per se, the position of forklift driver could be equated with that of a cargo controller, a position which did exist within the ranks of the client.
As far as the acceptance clerk applicant was concerned, “there was no evidence that (the employer) employs any acceptance clerks, and therefore no position of comparator was placed” before the Commission.
By virtue of the fact that the applicants had between 2 to 5 year’s service, in other words in excess of three months, it was apparent that the applicants did not perform a temporary service, and therefore the deeming provision in terms of section 198A (3)(b) of the Labour Relations Act, was applicable. Indeed, “all parties conceded to this”. This meant of course that the client was deemed to be the employer. The next thing to address was whether the position of forklift driver could be equated with that of a cargo controller, a position which did exist in the organogram of the client. The Commissioner held that “whilst some of the duties do seem to overlap, the evidence supports the conclusion that the two jobs are different in many respects. The job of cargo controller carries more responsibilities and additional tasks which the forklift drivers do not perform”. The award continued that “forklift drivers do not operate in the same full capacity of cargo controllers”. For this reason, it was held that “on an assessment of the evidence, I find that the two positions are not the same or sufficiently similar to warrant a conclusion that the applicant’s must be treated on the whole not less favorably than cargo controllers employed by the client”. For this reason, it was held therefore that section 198A (5) of the Labour Relations Act should not be invoked.
“In respect of the acceptance clerk, no comparator was placed before me. It was established as common cause that Swissport does not employ any other acceptance clerks. A deemed employee must be treated on the whole no less favorably than an employee of the client performing the same or similar work. In the circumstances as there were no comparators employed by the client, the Applicant’s cannot succeed in this claim”.
The award therefore reinforces the notion that when drawing a comparison between the work of a deployed labour broker worker, and that of an employee employed at the client, the obligation to treat deemed employees no less favorably that their purported counterparts employed by the client, only arises in circumstances where they are doing the same or similar work. Insofar as there is no comparator, or the work is not sufficiently the same or similar, the obligation to treat the placed labour broker employee (the deemed employee), no less favourably, is not required. This award reaffirms the notion that section 198A (3) of the Labour Relations Act, read together with the Assign Concourt judgment, reaffirms the notion that the deeming provision results in the client becoming the employer of the placed labour broker employee after three months of employment, for purposes of the Labour Relations Act only. For this reason, the award provided that “the Applicants are deemed to be employed on an indefinite basis in terms of section 198A (3)(b)(i) and (ii) of the LRA by Swissport SA (Pty) Ltd (the client) which is their employer for the purposes of the LRA”.