Labour Relations Amendment Bill, 2012

PART 2

Amendment of section 73 of Act 66 of 1995

The Principal Act is hereby amended by -
(a)The substitution for the title of the section of the following title ?
“73Disputes about minimum services and about whether a service is an essential service”
(b)The substitution for subsection (1) of the following subsection ?
“(1) Any party to a dispute about one or more [either] of the following issues may refer the dispute in writing to the essential services committee ?
(a)whether or not a service falls within the scope of a designated essential service; [or]
(b)whether or not an employee or employer is engaged in a service designated as an essential service[.];
(c) whether or not the employer and a registered trade union or trade unions representing employees in the essential service should conclude a collective agreement that provides for the maintenance of minimum services in that service ; and
(d) the terms of such a collective agreement.”

Amendment of section 74 of Act 66 of 1995

The Principal Act is hereby amended by the substitution for subsection (1) of the following subsection ?
“(1)Subject to section 73(1), [A]any party to a dispute that is precluded from participating in a strike or a lock-out because that party is engaged in an essential service may refer the dispute in writing to?
(d)a council, if the parties to the dispute fall within the registered scope of that council; or
(e)the Commission, if no council has jurisdiction.”

Insertion of section 103A in Act 66 of 1995

The Principal Act is hereby amended by the insertion after section 103 of the following section -
“103A Appointment of administrator
(1)The Labour Court may order that an administrator be appointed to administer a trade union or employers’ organisation on such conditions as the Court may determine if -
(a)the Court is satisfied that it is just and equitable to do so; and
(b)the trade union or employers’ organisation has resolved that an administrator be appointed and has applied to the Court for an order to give effect to that resolution; or
(c)the registrar has applied to the Court to appoint an administrator.
(2)Without limiting the generality of subsection (1)(a), it may be just and equitable to make an order in terms of subsection (1) if -
(a)the trade union or employers’ organisation fails materially to perform its functions; or
(b)there is serious mismanagement of the finances of the trade union or employers’ organisation.
(3)If there are any persons not represented before the Labour Court whose interests may be affected by an order in terms of subsection (1), the Court must consider their interests before deciding whether or not to grant the order.
(4)(a) The registrar of the Labour Court must determine the administrator’s fees.
(b)The Labour Court, in chambers, may review the determination of the registrar of the Labour Court.
(c)The administrator’s fees are a first charge against the assets of the trade union or employers’ organisation.
(5)The Labour Court may, on the application of the administrator or any person referred to in subsection (1) -
(a)vary or amend any prior order made in terms of this section; or
(b)if satisfied that an administrator is no longer required, terminate the appointment of the administrator, on appropriate conditions.“

Amendment of section 111 of Act 66 of 1995

Section 111 of the Principal Act is hereby amended by the insertion after subsection (4) of the following subsection -
“(5) An appeal in terms of this section against a decision by the registrar in terms of section 106 does not suspend the operation of the decision.”

Amendment of Section 115 of Act 66 of 1995

Section 115 of the Principal Act is hereby amended by:
(a)   The insertion after paragraph (d) of subsection (1) of the following paragraph -
“(e) at least every second year, review any rules made in terms of this section.”
(b)    The insertion after paragraph (c) of subsection (2) of the following paragraph -
“(d) if asked, provide assistance of an administrative nature to an employee earning less than the threshold prescribed by the Minister under section 6(3) of the Basic Conditions of Employment Act to serve any notice or document in respect of conciliation or arbitration proceedings in terms of this Act; provided that the employee remains responsible in law for any such service;”.
(c)    The deletion of subsection (2)(cA)(ii).
(b)The substitution for paragraph (k) of subsection (2A) of the following paragraph -
“(k) the right of any [person or category of persons to represent any] party to be represented by any person or category of persons in any conciliation or arbitration proceedings [;], including the regulation or limitation of the right to be represented in those proceedings;”.
(e)    The insertion after paragraph (l) of subsection (2A) of the following paragraph -
“(m) the consequences for any party to conciliation or arbitration proceedings of not attending those proceedings; and”.
(f)    Re-numbering paragraph (m) of subsection (2A) as paragraph (n).
(g)    The substitution for subsection (3) of the following subsection -
“(3) [If asked, the] The Commission may provide employees, employers, registered trade unions, registered employers’ organisations, federations of trade unions, federations of employers’ organisations or councils with advice or training relating to the primary objects of this Act or any other employment law, including but not limited to -
(a)establishing collective bargaining structures;
(b)designing, establishing and electing workplace forums and creating deadlock-breaking mechanisms;
(c)the functioning of workplace forums;
(d)preventing and resolving disputes and employees’ grievances;
(e)disciplinary procedures;
(f)procedures in relation to dismissals;
(g)the process of restructuring the workplace;
(h)affirmative action and equal opportunity programmes; and
(i)the prevention of sexual harassment in the workplace.”

Amendment of section 127 of Act 66 of 1995

Section 127 of the Principal Act is hereby amended by the insertion after paragraph (b) of subsection (1) of the following paragraph -
“(c) certifying that any ballot conducted by a trade union or employers’ organisation complies with the provisions of this Act or any other law.”

Amendment of section 138 of Act 66 of 1995

7.Section 138 of the Principal Act is hereby amended by the deletion of sub-paragraph (c) of subsection (7).
Amendment of section 143 of Act 66 of 1995
8.Section 143 of the Principal Act is hereby amended by:
(a)The substitution for subsection (1) of the following subsection -
“(1) An arbitration award issued by a commissioner is final and binding and it may be enforced as if it were an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award.”
(b)The substitution for subsection (4) of the following subsection -
“(4) If a party fails to comply with an arbitration award certified in terms of subsection (3) that orders the performance of an act, other than the payment of an amount of money, any other party to the award may, without further order, enforce it by way of contempt proceedings instituted in the Labour Court.”
(c)The insertion after subsection (4) of the following subsection -
“(5) Despite subsection (1), an arbitration award in terms of which a party is required to pay an amount of money must be treated for the purpose of enforcing or executing that award as if it were an order of the Magistrate’s Court.”

Amendment of section 144 of Act 66 of 1995

The Principal Act is hereby amended by the substitution for section 144 of the following section -
“144 Variation and rescission of arbitration awards and rulings
Any commissioner who has issued an arbitration award or ruling or any other commissioner appointed by the director for that purpose may, on that commissioner’s own accord or on the application of any affected party, vary or rescind an arbitration award or ruling -
(a)erroneously sought or erroneously made in the absence of any party affected by that award;
(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission; [or]
(c)Granted as a result of a mistake common to the parties to the proceedings [.[; or
(d)if good cause is shown.”

Amendment of section 145 of Act 66 of 1995

Section 145 of the Principal Act is hereby amended by the insertion after subsection (4) of the following subsections -
“(5) Subject to the rules of the Labour Court, a party who brings an application under subsection (1) must apply for a date for the matter to be heard within six months of delivery of the application. The Labour Court may, on good cause shown, condone a late application for a date for the matter to be heard.
(6) Judgment in an application brought under subsection (1) must be handed down as soon as reasonably possible and, save in exceptional circumstances, not later than six weeks after the last date of hearing.
(7) The institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the Court in accordance with subsection (8).
(8) Unless the Court directs otherwise, the security must -
(a)in the case of an order of reinstatement or re-employment, be equivalent to 24 months remuneration;
(b)in the case of an order of compensation, be equivalent to the amount of compensation awarded.
(9) An application to set aside an arbitration award in terms of this section interrupts the running of prescription in terms of the Prescription Act (Act No. 68 of 1969) in respect of that award.”

Amendment of section 147 of Act 66 of 1995

Section 147 of the Principal Act is hereby amended by the insertion after subsection (6) of the following subsection -
“(6A) For the purpose of making a decision in terms of subsection (6), the Commission must appoint a commissioner to resolve the dispute -
(a)if an employee earning less than four times the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act is required to pay any part of the cost of the private dispute resolution procedures; or
(b)if the person or body appointed to resolve the dispute is not independent of the employer.”

Substitution of section 150 of Act 66 of 1995

The Principal Act is hereby amended by the substitution for section 150 of the following section -
“150Commission may appoint commissioner to conciliate in the public interest
(1)Despite any provision to the contrary in this Act, the director may appoint one or more commissioners to attempt to resolve a dispute by conciliation whether or not that dispute has been referred to the Commission or a bargaining council -
(a)at the request of the parties; or
(b) if there is no request by the parties, if the director believes it is in the public interest to do so.
(2)Before appointing a commissioner in terms of this section, the director must consult with -
(a) the parties to the dispute; and
(b) the secretary of a bargaining council with jurisdiction over the parties to the dispute.
(3)The director may appoint a commissioner who has already conciliated that dispute.
(4)In addition, the director may appoint, to assist a commissioner appointed in terms of subsection (3) -
(a)one person drawn from a list of at least five names submitted by the representatives of organised labour on the governing body of the Commission; and
(b)one person drawn from a list of at least five names submitted by the representatives of organised business on the governing body of the Commission.
(5)Unless the parties agree otherwise, the appointment of a commissioner in terms of subsection (1) does not affect any entitlement to strike or lock-out that any party to the dispute may have acquired in terms of Chapter IV.”

Amendment of section 151 of Act 66 of 1995

Section 151 of the Principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
‘‘(2) The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a [provincial division] Division of the [Supreme Court] High Court of South Africa has in relation to matters under its jurisdiction.’’

Amendment of section 154 of Act 66 of 1995

Section 154 of the Principal Act is hereby amended by:
(a) The substitution for subsection (1) of the following subsection -
“(1) A judge of the Labour Court [must be appointed for a period determined by the President at the time of appointment] holds office until discharged from active service in terms of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001).’’
(b) The substitution for subsection (2) of the following subsection -
‘‘(2) A judge of the Labour Court who is also a judge of the High Court may resign as a judge of the Labour Court by giving written notice to the President.’’
(c) The deletion of subsection (3).
(d) The substitution for subsection (4) of the following subsection -
‘‘(4) Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges’ Remuneration and Conditions of Employment Act, [1989 (Act No. 88 of 1989)] 2001 (Act No. 47 of 2001) is affected by that judge’s appointment and concurrent tenure of office as a judge of the Labour Court.’’
(e) The substitution for paragraph (b) of subsection (5) of the following paragraph -
“(b) The Judges’ Remuneration and Conditions of Employment Act, 2001, as applicable to a judge of the High Court, apply, read with the changes required by the context, to a judge of the Labour Court who is not a judge of the High Court.’’
(f) The deletion of subsection (7).
(g) The substitution for subsection (9) of the following subsection -
‘‘(9) The provisions of subsections [(2) to (8)] (4), (5), (6) and (8) apply, read with the changes required by the context, to acting judges appointed in terms of section 153(5).’’
(h) The insertion after subsection (9) of the following subsection -
‘‘(10) (a) Any judge of the Labour Court holding office immediately before the commencement of the Labour Relations Amendment Act, 2012, who is not a judge of the High Court, may not later than 30 days after such commencement, inform the Minister of Justice in writing that he or she chooses to continue in office in terms of this section as it existed prior to such commencement.
(b) Any judge referred to in paragraph (a) who does not choose to continue in office in terms of this section as it existed prior to such commencement-
(i) shall continue to hold that office in accordance with this section as amended by the Labour Relations Amendment Act, 2012; and
(ii) his or her period of service as a Labour Court judge prior to such commencement shall, for the purposes of the Judges’ Remuneration and Conditions of Employment Act, 2001, be deemed to be active service as contemplated in that Act.”

Amendment of section 157 of Act 66 of 1995

Section 157 of the Principal Act is hereby amended by the substitution for subsection (5) of the following subsection -
“(5) Except as provided for in section 158(2), the Labour Court does not have jurisdiction to adjudicate an unresolved dispute if this Act or any employment law requires the dispute to be resolved through arbitration.”

Amendment of section 158 of Act 66 of 1995

Section 158 of the Principal Act is hereby amended by:
(a)The substitution for paragraph (b) of subsection (1) of the following paragraph -
“(b) order compliance with any provision of this Act or any employment law.”
(b)The insertion after subsection (1A) of the following subsection -
“(1B)   In the absence of exceptional circumstances, the Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be.”
(c)The substitution for paragraph (b) of subsection (2) of the following paragraph -
“(b)    [with the consent of the parties and if] if it is expedient to do so, continue with the proceedings [with the Court sitting as an arbitrator], in which case the Court may only make any order that a commissioner or arbitrator would have been entitled to make; provided that in relation to the question of costs, the provisions of section 162(2)(a) are applicable.”
(d)    The insertion after subsection (4) of the following subsection -
“(5)    A judgment of the Labour Court must be handed down as soon as reasonably possible and, save in exceptional circumstances or where otherwise provided in this Act, not later than six months after the last date of the hearing.”

Amendment of section 159 of Act 66 of 1995

Section 159 of the Principal Act is hereby amended by:
(a)The substitution of paragraph (c) of subsection (2) with the following paragraph -
“(c) the following persons to be appointed for a period of three years by the Minister of [Justice] Labour, acting on the advise of NEDLAC -
(i)a practising advocate with knowledge, experience and expertise in labour law;
(ii)a practising attorney with knowledge, experience and expertise in labour law;
(iii)a person who represents the interests of employees;
(iv)a person who represents the interests of employers; and
(v)a person who represents the interests of the State.”
(b)The insertion, after subsection (10), of the following subsection -
“(11) The Judge President must ensure that the Rules Board meets at least once every two years to review the Labour Court Rules.”

Amendment of section 161 of Act 66 of 1995

Section 161 of the Principal Act is hereby amended by:
(a)Renumbering the present provision as subsection (1).
(b)The deletion of the word [member,] in renumbered subsection 1(c).
(c)The insertion after renumbered subsection (1) of the following subsection-
“(2) No person representing a party in proceedings before the Labour Court in a capacity contemplated in (b) to (e) of subsection (1) may charge a fee or receive a financial benefit in consideration for agreeing to represent that party unless permitted to do so by order of the Labour Court.”

Amendment of section 168 of Act 66 of 1995

Section 168 of the Principal Act is hereby amended by the substitution for paragraph (c) of subsection (1) of the following paragraph -
“(c) such number of other judges who are members of the Labour Court or High Court, as may be required for the effective functioning of the Labour Appeal Court.”

Amendment of section 170 of Act 66 of 1995

Section 170 of the Principal Act is hereby amended by:
(a) The substitution for subsection (2) of the following subsection -
‘‘(2) A judge of the Labour Appeal Court may resign from that office by giving written notice to the President.”
(b) The substitution for subsection (4) of the following subsection:
‘‘(4) Neither the tenure of office nor the remuneration and terms and conditions of appointment applicable to a judge of the High Court in terms of the Judges’ Remuneration and Conditions of Employment Act, [1989 (Act No. 88 of 1989)] 2001 (Act No. 47 of 2001), is affected by that judge’s appointment and concurrent tenure of office as a judge of the Labour Appeal Court.’’
(c) The deletion of subsection (5).

Amendment of section 186 of Act 66 of 1995

Section 186 of the Principal Act is hereby amended by:
(a)The substitution for paragraph (a) of subsection (1) of the following paragraph-
“(a) an employer has terminated [a contract of] employment with or without notice.”
(b)The substitution for paragraph (b) of subsection (1) 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 retain the employee on an indefinite contract of employment but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.”
(c)The substitution for paragraph (e) of subsection (1) of the following paragraph-
“(e) an employee terminated [a contract of] employment with or without notice because the employer made continued employment intolerable for the employee;”.
(d)The substitution for paragraph (f) of subsection (1) of the following paragraph-
“(f) an employee terminated [a contract of] employment with or without notice because the new employer, after a transfer in terms of section 197 or section 197A, provided the employee with conditions or circumstances at work that are substantially less favourable to the employee than those provided by the old employer.”

Amendment of section 187 of Act 66 of 1995

Section 187 of the Principal Act is hereby amended by the substitution for paragraph (c) of subsection (1) of the following paragraph -
“(c) [to compel the] a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their [the] employer [and employee];”.

Substitution of section 188A of Act 66 of 1995

The Principal Act is hereby amended by the substitution for section 188A of the following section -
“188A[Agreement for pre-dismissal arbitration] Enquiry by arbitrator
(1)An employer may, with the consent of the employee or in accordance with a collective agreement, request a council, an accredited agency or the Commission to appoint an arbitrator to conduct an [arbitration] enquiry into allegations about the conduct or capacity of that employee.
(2)The request must be in the prescribed form.
(3)The council, accredited agency or the Commission must appoint an arbitrator on receipt of -
(a)payment by the employer of the prescribed fee; and
(b) the employee’s written consent to the [i]enquiry or the applicable collective agreement.
(4) (a) An employee may only consent to an [pre-dismissal arbitration] enquiry in terms of this section after the employee has been advised of the allegation referred to in subsection (1) [and in respect of a specific arbitration].
(b) Despite [subparagraph (a),] any other provision in this Act, an employee earning more than the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act at the time, may [consent] agree in a contract of employment to the holding of an [pre-dismissal arbitration] enquiry in terms of this section [in a contract of employment].
(5)In any [arbitration] enquiry in terms of this section a party to the dispute may appear in person or be represented only by -
(a)a co-employee;
(b)a director or employee, if the party is a juristic person;
(c)[any member;] an office bearer or official of that party’s registered trade union or registered employers’ organisation; or
(d)a legal practitioner, on agreement between the parties [.] or if permitted by the arbitrator in accordance with the rules regulating representation at an arbitration before the Commission.
(6)Section 138, read with the changes required by the context, applies to any [arbitration] enquiry in terms of this section.
(7)An arbitrator appointed in terms of this section has all the powers conferred on a commissioner by section 142(1)(a) to (e), (2) and (7) to (9), read with the changes required by the context, and any reference in that section to the director for the purpose of this section, must be read as a reference to -
(a)the secretary of the council, if the [arbitration] enquiry is held under the auspices of the council;
(b) the director of the accredited agency, if the [arbitration] enquiry is held under the auspices of an accredited agency.
(8)The ruling of the arbitrator in an enquiry has the same status as an arbitration award and the provisions of sections 143 to 146 apply with the changes required by the context to any such ruling [made by an arbitrator in terms of this section].
(9)An arbitrator conducting an [arbitration] enquiry in terms of this section must, in the light of the evidence presented and by reference to the criteria of fairness in this Act, [direct] rule as to what action, if any, [should] may be taken against the employee.
(10) (a) A private agency may only appoint an arbitrator to conduct an [arbitration] enquiry in terms of this section in respect of which the employer or the employee is not a party to the council, if the council has been accredited for [this purpose] arbitration by the Commission.
(b) A council may only appoint an arbitrator to conduct an [arbitration] enquiry in terms of this section in respect of which the employer or the employee is not party to the council, if the council has been accredited for [this purpose] arbitration by the Commission.
(11) Despite subsection (1), if an employee alleges in good faith that the holding of an enquiry contravenes the Protected Disclosures Act, 2000 (Act No. 26 of 2000), that employee or the employer may require that an enquiry be conducted in terms of this section into allegations by the employer into the conduct or capacity of the employee.
(12) The holding of an enquiry by an arbitrator in terms of this section and the suspension of an employee on full pay pending the outcome of such an enquiry do not constitute an occupational detriment, as contemplated by the Protected Disclosures Act, 2000 (Act No. 26 of 2000).”

Insertion of section 188B in Act 66 of 1995

The Principal Act is hereby amended by the insertion after section 188A of the following section -
“188BDismissal of employees earning above a threshold
(1)This section applies to employees who earn, as at the date of dismissal, more than an amount determined by the Minister in accordance with subsection (4).
(2)Despite section 188(1) the dismissal of an employee to whom this section applies is, if it is not automatically unfair as contemplated in section 187(1)(a) to (f) or (h), deemed to be for a fair reason and to have been effected in accordance with a fair procedure as contemplated in section 188 if the employer gives the employee the notice referred to in subsection (3) or pays the employee in lieu of that notice on or before the date of dismissal.
(3)The notice referred to in subsection (1) is three months or any longer period specified in the employee’s contract of employment, and must be given in writing.
(4)The Minister must from time to time in consultation with NEDLAC and by notice in the Gazette make a determination of the amount referred to in subsection (1). In making that determination the Minister must take into account the extent to which employees, by reason of their earnings level, level of skill or position, have sufficient bargaining power to ensure that adequate provision may be made in their contracts of employment for protection against unfair dismissal.
(5)This section will apply to contracts of employment concluded before the commencement date of this section with effect from two years after the commencement date of this section.”

Amendment of section 189A of Act 66 of 1995

Section 189A of the Principal Act is hereby amended by:
(a)The insertion in subsection (2) of the following paragraph -
“(d) a consulting party may not unreasonably refuse to extend the period for consultation if such an extension is required to ensure meaningful consultation.”
(b)The deletion of subsection (19).

Amendment of section 190 of Act 66 of 1995

Section 190 of the Principal Act is hereby amended by the insertion after paragraph (c) of subsection (2) of the following paragraph -
“(d) if an employer terminates an employee’s employment on notice, the date of dismissal is the date on which notice expires or, if it is an earlier date, the date on which the employee is paid all outstanding salary.”

Amendment of section 191 of Act 66 of 1995

Section 191 of the Principal Act is hereby amended by:
(d)The insertion, in subsection (5), after the words “30 days”, the words “, or any further period agreed between the parties.”
(b) The substitution for subsection (12) of the following subsection -
“(12) [If a] An employee [is] dismissed by reason of the employer’s operational requirements [following a consultation procedure in terms of section 189 that applied to that employee only, the employee] may elect to refer the dispute either to arbitration or to the Labour Court if -
(a)the employer followed a consultation procedure that applied to that employee only, irrespective of whether that procedure complied with section 189; or
(b)the employer’s operational requirements lead to the dismissal of that employee only; or
(c)the employer employs less than ten employees.”

Amendment of title of Chapter IX of Act 66 of 1995

The Principal Act is amended by the substitution for the title of Chapter IX the following title -
“Regulation of non-standard employment and General Provisions”

Amendment of section 198 of Act 66 of 1995

Section 198 of the Principal Act is hereby amended by:
(a)The substitution for subsection (1) of the following subsection -
“(1) In this section, ‘temporary employment service’ means any person who, for reward, procures for or provides to a client other persons -
(i)who [render services to, or] perform work for [,] the client; and
(ii)who are remunerated by the temporary employment service.”
(b)The substitution for paragraph (d) of subsection (4) of the following subsection -
“(d) a sectoral determination made in terms of the [Wage] Basic Conditions of Employment Act.”
(c)The insertion after subsection (4) of the following subsections -
“(4A)If the client of a temporary employment service is jointly and severally liable in terms of section 198 (4) or is deemed to be the employer of an employee in terms of section 198A (3)(b) -
(a)the employee may institute proceedings against either the temporary employment service or the client or both the temporary employment service and the client;
(b)a labour inspector acting in terms of the Basic Conditions of Employment Act may secure and enforce compliance against the temporary employment service or the client, as if it were the employer, or both; and
(c)any order or award made against a temporary employment service or client in terms of this subsection may be enforced against either.
(4B)A temporary employment service must provide an employee it assigns to a client with written particulars of employment that comply with section 29 of the Basic Conditions of Employment Act.
(4C) An employee may not be employed by a temporary employment service on terms and conditions of employment which are not permitted by this Act, or any employment law, sectoral determination or collective agreement concluded in a bargaining council applicable to a client to whom the employee renders services.
(4D)The issue of whether an employee of a temporary employment service is covered by a bargaining council agreement or sectoral determination must be determined by reference to the sector and area in which the client is engaged.
(4E)In any proceedings brought by an employee, the Labour Court or an arbitrator may -
(a)determine whether a provision in an employment contract or a contract between a temporary employment service and a client complies with subsection (11); and
(b)make an appropriate order or award.
(4F)No person may perform the functions of a temporary employment service unless it is registered in terms of any applicable legislation in force. The fact that a temporary employment service in not registered will not constitute a defence to any claim instituted in terms of this section or 198 A.”

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