Triangular Employment Relationship

Traditional employment relationships consists of two parties, namely the employer and employee. In contrast three parties are involved in triangular employment relationships, namely the agency supplying the workers; the client enterprise who uses the services of the workers and the workers themselves. One of the key features of this type of employment relationship is that the usual role of an employer, is split between the agency and the client enterprise. For example, the agency supplying the workers administers the employment relationship, is responsible for recruitment and dismissal, while the client enterprise has control over the day to day working conditions of the worker. With three parties involved it is not always clear who the employer

These annual contracts stipulated a break between annual contracts, as a form of influx control. It prevented migrant workers from attaining permanent residence in urban areas, as workers with ten years continual employment in an urban area were allegeable to obtain permanent residence. In the 1980s with removal of influx control, other forms of labour hire or triangular employment relationships emerged as employers sought to ensure the continual supply of cheap labour. Labour brokers or temporary employment service (TES) was formally recognised in 1983, with legislation enacted stating that the labour broker is the employer of the workers they supply to client enterprises, if they pay the wages, in an attempt to protect employees from exploitation. With the LRA of 1995, labour brokers or TES continued to be considered the employer, but both the agency supplying the workers and the client enterprise was now jointly and severally liable for breaches in labour law, except for unfair dismissals and breaches of contracts of employment. The rationale was that by making both parties jointly and severally liable workers would have some form of protection. However, instead of regulating these relationships, there is evidence that it encouraged the growth of permanent

One of the recommendations of the report was to enact legislative reform to regulate labour brokering. Proposals were then tabled at NEDLAC but there was no follow through thereafter. At the same time, the labour movement started calling for the banning of labour brokering, while the official policy of the ANC was to regulate these triangular employment relationships to prevent the exploitation of workers. There seemed little consensus on the approach to take. Then in 2010 amendments to Labour Relations Act was published, proposing a new definition for an employer and employee. In addition, the Employment Services Bill was drafted, to prevent private employment agencies from placing their workers to work for a third party and the Department of Labour releases a Regularly Impact Assessments. These were the first attempts to prevent or regulate labour brokering, which proved unsuccessful. The amended definition of an employer was to limit it to those who directly supervises the work of a worker, as an attempt to prevent triangular employment relationships which involves putting workers under the direct supervision of a third party. This law failed because under the definition, an employee requires direction and supervision, whereas the labour court had taken a