Though last week’s monumental Constitutional Court ruling on the regulation of labour brokers was a victory for low-paid workers, the triumph will be short-lived.
The judiciary on Thursday provided direction on the interpretation of an amended section of the Labour Relations Act that says an employee who earns less than the threshold of just more than R205,000 a year and is contracted through labour brokers to a client for more than three months, is deemed employed by the client.
Labour brokers insisted the provision meant they would act as employers along with their clients, meaning the workers would serve two employers.
After putting up a formidable struggle that started at the Commission for Conciliation, Mediation and Arbitration (CCMA) in 2015 and ended at the apex court, the National Union of Metalworkers of SA’s (Numsa’s) interpretation that only the clients of labour brokers were considered as employers won the day.
However, all these feats meant nothing in the face of the country’s incapacitated workplace inspectorate at the Department of Labour.
Its director-general, Thobile Lamati, was among the first to hail the judgment as beneficial for workers, emphasising that the deeming provision in the act was meant to protect vulnerable employees.
The groups covered in the reference include domestic workers, farm workers, cleaners, retail cashiers and security guards, among others.
Lamati and his colleagues, including Labour Minister Mildred Oliphant, have over the years admitted to weaknesses in the inspectorate services, saying there was simply not enough manpower to ensure the enforcement of labour laws.
The bigger problem for us is that the vast majority of labour-brokered workers do not know about these rights, let alone to demand them. For us, the big task will be to go out and organise.
— Igshaan Schroeder
In the absence of such oversight, labour brokers have for years gotten away with putting low-paid workers on perpetual contracts with no essential benefits such as provident funds or medical aid.
By amending the act, the government was admitting that these workers needed protection. But the government is nowhere to be seen when workers face the brutal onslaught of employers who release them from their contracts just before the three months kick in or are locked out of company premises for demanding permanent employment as stipulated.
At the onset of the amendments in 2015, the Federation of African Professional Staffing Organisations (APSO), which represents 800 businesses involved in labour recruitment, said 47% of workers employed through labour brokers had their services terminated, while 30% had been given some form of long contract and only 23% were made permanent. According to APSO, 254,000 jobs were lost in 2015 due to the amendment.
Even with these reports, the Department of Labour’s response was that it was monitoring the effects of the new law. There was no willingness to act against employers who sought to circumvent the law, leaving workers to flock to the CCMA to open cases of unfair dismissal.
Another hindrance to the realisation of the rights of the vulnerable workers is the fact that close to 80% are not unionised. As a result, there is little education and awareness about their rights, a role traditionally fulfilled by labour unions. This means even when the abuses occur, workers are rarely ever aware of the recourse at their disposal.
Igshaan Schroeder, co-ordinator at the Casual Workers Advice Office, warned that big business would resist the changes. "The bigger problem for us is that the vast majority of labour-brokered workers do not know about these rights, let alone to demand them. For us, the big task will be to go out and organise and raise a lot more awareness and that will be the way to counteract what the bosses are going to do," he said.
The advice office was necessitated by the very fact that casual or contract workers were not unionised, and offered refuge to disgruntled staff.
Organised labour across the political spectrum was elated at the ruling last Friday; however, not a single union has come up with a grand plan on how to ensure the laws are effective.
"This is the end of labour brokers," proclaimed South African Federation of Trade Unions leader Zwelinzima Vavi outside the Constitutional Court.
The significance of the moment was written all over the faces of hopeful contract workers who gathered outside the court to hear the news.
The reality was that as soon as they went back to their factories and shop floors the likelihood was that they were on their own when they came face to face with their employers who might not have been willing to incur the costs of hiring them permanently.
And because of the levels of desperation among workers, they would simply carry on with life as they know it.
So while the judgment of the apex court changes the labour landscape with respect to the legal rights of labour brokers in the employment relationship, the foundation has never been laid for its effectiveness.
• Mahlakoana is political and labour writer.
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