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Warning: You risk being liable for employees if your labour broker doesn't treat them fairly

by , 28 May 2015
When using a labour broker to get temporary workers, don't think you escape your legal duties as an employer.

The most recent amendments to labour laws make you the employer in some instances and this means that having an agreement with a labour broker won't really make any difference.

Here are your legal obligations to employees you use through a labour broker

First of all, if you use a labour broker, you should know that labour laws contain clauses which also apply to you. These include regulations from:

• Labour Relations Act (LRA);
• Basic Conditions of Employment Act; and
• Employment Equity Act.

When it comes to the Labour Relations Act, your obligations state that how much your employee earns, and if he provides a 'temporary service', will determine if you're the employer.

• Employees who earn more than the minimum earnings threshold are employees of the labour broker. The labour broker is their employer. The current minimum earnings threshold is R205 433.30 per annum.

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We divide employees who earn below the earnings threshold into two groups. These are those who:

• Provide a 'temporary service' to you. These are employees of the labour broker and the labour broker is the employer.

• Don't perform a 'temporary service'. These are your employees and you're the employer – the deeming provision.

• Independent contractors aren't employees at all. What's the deeming provision? Basically, it determines who the employer is for the purposes of labour law…

Now, let's look at three ways you could be liable under the LRA

• It's now a recognised form of dismissal if you dismiss an employee so you can avoid the deeming provision. This is what determines who the labour laws will see as the employer. You or the labour broker could be liable for unfair dismissal if you do this. It doesn't matter which one of you ends the employment.

• When employees earn below the threshold and have been deemed to be your employees, you can be liable for any unfair labour practices or unfair dismissals. It doesn't matter if you or the labour broker were responsible for the unfair behaviour.

• You must treat employees deemed to be yours, on the whole, not less favourably than your other employees. This is if they do the same or similar work. Unless you have a justifiable reason for the difference. For example, experience, seniority or length of service.

Also, you must treat deemed employees as your employees under the LRA. In other words, they have the right to join trade unions, have organisational rights, can strike, or you can include them in a lock-out etc. Notice that if you don't, you could land up defending your actions in the Labour Court.

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Warning: You risk being liable for employees if your labour broker doesn't treat them fairly
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