Temporary employment services (TES) are commonly called labour brokers who supply labour to businesses. TES are regulated mainly by the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA). The LRA defines a TES as a person who, for reward, procures for or provides to a client, the services of employees who it remunerates.

The LRA (Section 198) states the following regarding employees of the TES:

• The employee must earn below the BCEA threshold of R254 372 per year or R21 198 per month
• The employee only works for a client for less than 3 months
• The employee works for a client as a substitute for an employee who is temporarily absent from work
• The employee works for a client to perform a category of work that is seen to be a temporary service by a Bargaining Council or a Sectoral Determination

If a TES employee works for a client for more than 3 months and earns under the BCEA earnings threshold of R21 198 per month, they are seen to be an employee of the client and are entitled to the same terms and benefits as the client’s permanent employees. This means there is joint and several liability which both the employer and the TES provider (labour broker) take on after the 3-month window period. This means that both the employer or the TES provider can be taken to the CCMA if equal treatment is not applied or if the employer fails to apply the terms of the BCEA, for example paying overtime or Sunday rate of pay or treating the employee unfairly.

Section 198(4a)(a) provides that an employee can bring a claim against a TES, or the client of the TES, or both the TES and the client if the TES contravenes the Basic Conditions of Employment Act or a Sectoral Determination, or a collective agreement (in a bargaining council).