The National Bargaining Council for Road and Freight Logistics Industries (NBCRFLI) has been exposed for misleading industry members and threatening Innovative Staffing Solutions’ (ISS) clients as the legal dispute between the two entities continues.

ISS is a Human Capital and Facilities Management Subcontractor that permanently employs over 36,000 staff across a variety of sectors such as mining, engineering, construction, retail, agriculture, and transportation and logistics. The root of its legal dispute with the Council rests upon whether the company falls within the Council’s ambit.

In a recent circular to the industry, the Council misleadingly claimed that the net result of recent litigation was that ISS was a Temporary Employment Service (TES), meaning that it was obliged to register with the Council, that all road transport companies falling within the Council’s jurisdiction were prohibited from using ISS’ services, and that ISS clients were liable for ensuring compliance with the Council’s Main Collective Agreement (MCA).

But ISS Managing Director Arnoux Maré notes that the Council wilfully neglected to mention that the question of ISS’ demarcation, or whether it operates as a TES, has yet to be decided by the Labour Court.

This means that as an independent subcontractor, ISS is not legally bound to register with the Council – as reinforced by a recent court interdict against the Council. Additionally, as ISS has not been declared a TES, there is no legal order regarding non-compliance with the Council’s collective agreement, which means that the Council cannot make any claims regarding joint or separate liability, he explains.

“The Council refuses to give a full and accurate position of this case to strengthen their ability to threaten companies doing businesses with ISS. This circular is yet another example of the Council’s scare tactics, violating constitutional rights to association, as well as free and fair trading,” says Maré.

“Even more disturbingly, using these same lies and misrepresentations for blackmail, the Bargaining Council has reached out directly to our clients to threaten them with legal action if they do not pay the Council’s levies.

“It is surprising that NBCRFLI Board Members such as Graeme Barnard or Dewaldt Potgieter of the National Employers’ Association of South Africa (NEASA) can allow themselves to be associated with an organisation that indulges in this type of libellous behaviour, and that they are willing to condone these threatening tactics.”

Legal battle continues

ISS’ argument is that, unlike TES companies, ISS staff are permanently employed by ISS, and are simply deployed to client companies as needed. Additionally, contrary to the Council’s claims that ISS refuses to comply with the general provisions of its MCA, ISS employees receive benefits that exceed all minimum requirements, including access to comprehensive medical aid schemes, a provident fund, and superior salaries.

In March 2021, the NBCRFLI approached the Commission for Conciliation Mediation and Arbitration (CCMA) who pronounced that ISS should register with the Council. However, given that Commissioner Dickens, responsible for the ruling, had issued a white paper that decided that ISS was a labour broker before hearing the matter, ISS launched a Review Application at the Labour Court.

Significantly, Dickens has chosen not to defend her position in the Labour Court, instead filing a notice to abide by the Labour Court’s decision. Furthermore, until the Labour Court rules upon the matter, the CCMA recommendation of demarcation is not legally enforceable.

“Although ISS has cooperated with the NBCRFLI in every regard, it is important to reiterate that there is still no ruling that currently states that ISS should be forced to register with them. A court even suggested that we pay the Council’s levies into a trust account rather than to the Council while we await the outcome of our Review Application, which has subsequently been done,” says Maré.

“There are no legal grounds for the Council’s empty threats towards our clients. These are merely bullying manoeuvres intended to trick clients who do not currently employ staff within the Council’s scope into cancelling their relationships with ISS.

“But we will not stand idly by while they continue with these antics. We will no longer remain quiet, and we will continue to defend our rights vigorously using all legal avenues. To the Council’s National Secretary, Musa Ndolovu, we say, we’ll see you in court.”