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Amendments to Labour Legislation - Temporary Employees

By Jan Du Toit

As most employers are aware by now, the Department of Labour published proposed amendments to labour legislation and the introduction of the Public Employment Service Bill in December 2010. This undoubtedly resulted in some sleepless nights over the festive season for both Temporary Employment Services providers (also referred to as Labour Brokers) and their clients. The proposed amendments, if enacted, would effectively "ban" Labour Brokers and will have far reaching implications for employers whether they make use of temporary employees provided by a Labour Broker or not.

We recently published a press release by the Department of Labour highlighting some of the key areas of the proposed amendment bills. This document is however not comprehensive and we will therefore during the next couple of weeks discuss some interesting proposed amendments that must be carefully considered and commented on before the 17th of February.

The first proposed amendment to consider is the definition of an employer in the Labour Relations Act. An employer will be defined in section 213 of the Act as "any person, institution, organisation, or organ of state who employs or provides work to an employee or any other person and directly supervises, remunerates or tacitly or expressly undertakes to remunerate or reward such employee for services rendered". An employee will be defined as "any person employed by or working for an employer, who receives or is entitled to receive any remuneration, reward or benefit and works under the direction or supervision of an employer;"

From these definitions it is clear that any person or institution that provides work to another person and directly supervises such a person is considered to be the employer. The client of a Labour Broker would therefore be considered to be the employer and not the Labour Broker or a third party. Section 198 of the Labour Relations Act will be repealed meaning that Temporary Employment Service providers are not longer recognized in the Act. Clients of a Labour Broker would therefore not be able to rely on section 198 (2) of the Act stating that "a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer".

In addition to the above it is proposed that a new section be inserted in the Act stating that "an employee must be employed permanently, unless the employer can establish a justification for employment on a fixed term." Employing staff temporarily instead of using a Labour Broker will therefore also not be an option.

Those employers that will be able to justify the use of temporary staff as per section 200B of the proposed amendments will have to be extremely careful since section 186 (1) (b) will also be amended. It would be considered to be a dismissal if the employer failed to permanently appoint an employee engaged under a fixed term contract and such employee can prove that reasonable expectation of a permanent appointment was created.

Section 186 of the principal Act is amended by—

(a) the substitution in subsection (1) for paragraph (b) of the following paragraph:

(b) an employee engaged under a fixed term contract of employment reasonably expected the employer—

(i) to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it; or

(ii) to offer the employee an indefinite contract of employment on the same or similar terms but the employer offered it on less favourable terms, or did not offer it, where there was reasonable expectation;"

Another costly mistake would be to offer an employee engaged under a fixed term contract permanent employment on less favourable terms as what the employee was entitled to as a fixed term employee. Employers are advised to study the proposed amendments and to consider the impact it would have on their businesses if enacted.

For more information contact Jan du Toit

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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