| (1) | In this section, a ‘temporary service’ means work for a client by an employee— |
| (a) | for a period not exceeding three months; |
| (b) | as a substitute for an employee of the client who is temporarily absent; or |
| (c) | in a category of work and for any period of time which is determined to be a temporary service by a collective agreement concluded in a bargaining council, a sectoral determination or a notice published by the Minister, in accordance with the provisions of subsections (6) to (8). |
| (2) | This section does not apply to employees earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. |
| (3) | For the purposes of this Act, an employee— |
| (a) | performing a temporary service as contemplated in subsection (1) for the client is the employee of the temporary employment services in terms of section 198(2); or |
| (b) | not performing such temporary service for the client is— |
| (i) | deemed to be the employee of that client and the client is deemed to be the employer; and |
| (ii) | subject to the provisions of section 198B, employed on an indefinite basis by the client. |
| (4) | The termination by the temporary employment services of an employee’s service with a client, whether at the instance of the temporary employment service or the client, for the purpose of avoiding the operation of subsection (3)(b) or because the employee exercised a right in terms of this Act, is a dismissal. |
| (5) | An employee deemed to be an employee of the client in terms of subsection (3)(b) must be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment. |
| (6) | The Minister must by notice in the Government Gazette invite representations from the public on which categories of work should be deemed to be temporary service by notice issued by the Minister in terms of subsection (1)(c). |
| (7) | The Minister must consult with NEDLAC before publishing a notice or a provision in a sectoral determination contemplated in subsection (1)(c). |
| (8) | If there is conflict between a collective agreement concluded in a bargaining council, a sectoral determination or a notice by the Minister contemplated in subsection (1)(c)— |
(a) the collective agreement takes precedence over a sectoral determination or notice; and
(b) the notice takes precedence over the sectoral determination.
| (9) | Employees contemplated in this section, whose services were procured for or provided to a client by a temporary employment service in terms of section 198(1) before the commencement of the Labour Relations Amendment Act, 2014, acquire the rights contemplated in subsections (3), (4) and (5) with effect from three months after the commencement of the Labour Relations Amendment Act, 2014. |
[Section 198A inserted by section 38 of Act No. 6 of 2014]
