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Global employment briefing: South Africa, January 2015

  • South Africa


    Increased protections for temporary agency, fixed term and part time workers

    Perhaps the most notable provisions of the Labour Relations Amendment Act (“LRA”), effective 1 January 2015, are the extensive protections which are afforded to employees earning below the minimum threshold of R205 433.30 per annum in non-standard employment relationships. For example:

    Employees contracted to perform temporary service in accordance with a labour broking arrangement:

    The employee provides a temporary service only if:

    o the contract expires within three months;

    o the employee is temporarily working in place of an absent employee of the client; or

    o the service rendered is defined as a temporary service category.

    If the employee is employed in contravention of the legislation then he or she will be deemed an employee of the client, employed on an indefinite contract and the employee may not be treated less favourably than the client’s employees.

    Fixed term employees:

    If the contract expires within three months the employer is not required to justify the reason for the fixed term contract.

    In the absence of a justifiable reason for the fixed duration of the contract, the employee is deemed to be employed indefinitely and termination of employment upon the expiry of the contract will be presumed an unfair dismissal.

    If the contract does not expire within three months, the employee must not be treated less favourably than permanent employees.

    Part-time employees:

    The employee is entitled to training and skills development, may not be treated less favourably than permanent employees of the employer and termination of employment upon the expiry of such an employment contract would be presumed an unfair dismissal if:

    o the employer employs more than 10 employees, or more than 50 employees and whose business has been in operation for more than 2 years; or

    o the employee works more than 24 hours a month.

    Get ahead now!

    Employers have until 31 March 2015 to ensure their compliance with section 198 of the LRA.

    Employment Equity Amendment Act (“EEA”) – arbitrary grounds and equal pay for work of equal value

    Arbitrary ground

    The EEA introduces an additional ground to the existing grounds for discrimination. Section 6(1) caters for an unfair discrimination claim to be brought by an employee on an ‘arbitrary ground’ to be motivated by the employee.

    Equal pay for work of equal value

    Section 6(4) of the EEA introduces a further ground of unfair discrimination in the form of a difference in the terms and conditions (such as remuneration) of employment between employees performing substantially the same work. Seniority alone is no longer an acceptable justification for a disparity in employees’ remuneration if such seniority may have resulted from part discrimination.

    It is therefore crucial that employers develop a means of bridging gaps in remuneration among their employees to avoid potential litigation that will centre around the inevitable disclosure of employees’ remuneration. The Department of Labour provides guidelines that may assist in this regard.

    The Employment Equity Act’s amendments came into effect on 1 August 2014