The devil in the deemed: Novel takes on Sections 198B and D

Avinash Govindjee,John Grogan

doi:10.17159/obiter.v41i3.9584

Abstract

Section 198 of the Labour Relations Act is designed to protect vulnerable employees of labour brokers and those on fixed-term contracts. Some recent judgments may make obtaining that protection more complicated.

Highlights

BackgroundThe dispute in Nama Khoi Local Municipality v South African Local Government Bargaining Council [2019] 8 BLLR 830 (LC) arose in the following circumstances
This made a total of six months; three months longer than employers are allowed to employ workers earning below R205,433.30 a year unless the nature of the work is “of a limited or definite duration” or the employer can establish some “justifiable reason for fixing the term of the contract” (s 198B(3) of the Labour Relations Act 66 of 1995, as amended on 1 January 2015)
A further reason why the application by the PRASA employees might have failed was fortuitously provided by Commission for Conciliation, Mediation and Arbitration v Commission Staff Association [2020] 1 BLLR 9 (LAC), handed down after the PRASA judgment, in which the very body charged with monitoring the application of section 198B ironically found itself in the respondent’s box

Summary

Background

The dispute in Nama Khoi Local Municipality v South African Local Government Bargaining Council [2019] 8 BLLR 830 (LC) arose in the following circumstances. The arbitrator, in this case, had made no such finding. In the wake of Nama Khoi, the situation created by referral under section 198D is this: Employees on fixed-term contracts who claim to have become deemed permanently employed may seek an arbitration award confirming this to be the case. Four days after the dispute was referred, AB informed the employees that their fixed-term contracts were to end and offered them permanent contracts In this case, the workers were still in employment when the matter came before the arbitrator.

PRASA v CCMA

CCMA v Commission Staff Association

3 Analysis and conclusion