Klass Looch Associates

Employer OHS Champion since 1986 

Dear Folks

‘The parody of democracy that marked last week’s parliamentary talks on labour broking came as no surprise to those who were supposed to be ambushed. Representatives from labour brokerages – or temporary employment services (TES’s) , as they prefer to call themselves – had been warned to expect a ‘circus’ but were still shocked by the ugliness of insults hurled at them. One ANC MP said labour brokers were little better than drug dealers. Others called them human traffickers and slave traders. Alternatively, they were a plague comparable to the HIV / AIDS pandemic’.

This is an extract from an article in The Business Report of 30 August 2009. Harsh words indeed but something that has unfortunately become the norm at parliamentary hearings where rudeness and tantrums prevail as the (new) ruling clique basks in their superior numbers. JSE listed companies are equated with drug dealers by MPs who obviously have been primed to emulate their tantrum-prone minister of labour and to use his colourful language. Let’s face it, like so many public hearings and commissions, the outcome is predictable. The bottom-line is the majority gets whatever it wants. The joy of democracy or the tyranny of the majority? (“Circus” is also a good word to describe that embarrassing and dreadful display by Lenny, Winnie and Julie at ORT Airport when our pretty little girl touched down last Tuesday. Leonard Chuene, of Athletics SA, his eyes bulging with indignation, was spitting fire and saliva at every journalist and was a complete embarrassment. Naturally I really wanted to be part of the circus but no-one told me where the ‘Rent-a-Crowd’ pickup point was).

Anyway labour brokers prepare for thy doom. The delinquent in your ranks have tarnished your reputation and, since the Powers-That-Be are reluctant to act against them, you must pay the ultimate price. Or is there ulterior political agenda behind it all? We know that the labour brokering practice does not bolster union (COSATU) membership. We know that COSATU has infiltrated every echelon of the new ruling clique and that many cabinet ministers come from a trade union (COSATU) background. One MP even suggested that labourers, supplied through brokerage, are deliberately deprived of their OHS rights by (client) employers. She suggests that employers actually differentiate between labour supplied via brokers and other workers vis-à-vis health and safety. I must say I haven’t encountered that yet but I guess it can happen. Then again most of my clients are large companies or multi-nationals and, ironically enough, the ones that utilize the practice most. Labour supplied by a labour broker are employees for purposes of the OHS Act. In terms of section 8employers must provide them with a safe and healthy working environment. Even if ever they were presumed to be non-employees, section 9would compel employees to ensure their safety and healthy. But we are dealing with an orchestrated and co-ordinated union / governmental / ANC onslaught and nothing will stop this juggernaut.

I ask myself what the prejudice is to workers supplied by labour brokers. They enjoy the same OHS rights as other workers. The labour broker contributes to the Compensation Commissioner. If he fails to do that the employer (client) would be liable for payment. So the problem lies outside OHS legislation and with the Labour Relations Act. (LRA Act). I assume that is where the regulation will apply. I also cannot see the practice being banned outright as promised by the Minister of Labour . The labour Relations Act actually recognises Temporary Employment Services (TES - labour Brokers) in section 198 and affords workers, as employees of the TES, rights in terms of that Act.

LRA. Section 198(4). The temporary employment service and the client are jointly and severally liable if the temporary employment service, in respect of any of its employees, contravenes -

(a) a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;

(b) a binding arbitration award that regulates terms and conditions of employment;

(c) the Basic Conditions of Employment Act; or

(d) a determination made in terms of the Wage Act.

COID Act. Definitions.

"employee" means a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind, and includes -

(c) a person provided by a labour broker against payment to a client for the rendering of a service or the performance of work, and for which service or work such person is paid by the labour broker.

And so labour brokers are recognised in two pieces of labour legislation. Hardly drug dealers! It will require an amendment to both Acts in order to ban labour brokers and we take comfort in knowing that the Minister is personally writing the new laws as we speak……

Labour brokers “human traffickers”: Mdladlana. The Citizen of 20 March 2009. 'Labour brokers are nothing more than “human traffickers”, Labour Minister Membathisi Mdladlana said on Thursday. Mdladlana said he would do everything in his power to stop the practice of labour brokers when he addressed the national bargaining conference of the Chemical, Energy, Paper, Printing, Wood and Allied Workers Union in Pretoria. “It is selling people, it is inhumane, and it is against the Constitution of South Africa,” he said. Mdladlana said the ANC plans to ban labour brokers after the coming elections. “It is in the manifesto of the ANC and it will not go away. It will be implemented.” Mdladlana said that many labour brokers do not take responsibility for their workers. The brokers did not contribute to the Unemployment Insurance Fund and they confused workers as to whom they work for. “You find workers that have worked for a company for 20 years that only found out that they have not been employed by the company for which they had worked after they have been dismissed,” he said. This creates a problem at the Commission for Conciliation, Mediation and Arbitration, and labour courts, as it was not clear who to lay charges of unfair labour practises against. Mdladlana said he will make it easier for the next labour minister to put this into law. “The issue is in the manifesto. He just needs to get a good lawyer and draft the amendment,” he said. “In fact, I will draft it for him myself.”

Oddly enough workers, provided by labour brokers, enjoy something that other workers don’t! In Crown Chickens t/a Rocklands Poultry v Rieck 2007 (SCA)the court held that, unlike full-time employees, workers supplied by labour brokers can sue their client employers for damages if injured during the course of their employment. Section 35 of the COID Act prohibits civil suits by employees against employers.

The editorial in the Star of 31 August 2009 entitled ‘Brokering conundrum’ is also devoted to this topic. ‘SOUTH Africa finds itself in a tight corner in the labour sphere at the moment. And the difficulty can be expressed thus: should the country be creating jobs, or should it strive for "decent, quality" employment? The answer depends on whether one is talking to a representative of business or a labour activist. Last week the country saw another attempt to resolve this conundrum after Parliament's portfolio committee on labour invited public submissions on labour brokers. Simultaneously, labour activists, academics, researchers and labour experts were holding a similar debate in Gauteng. hose on the employers' side of the divide maintain that labour brokering creates jobs in small businesses and in the services sector, while trade unionists, on the other hand, say these jobs are neither sustainable, nor are they what has come to be called "decent, quality" jobs. Employers say punish rogue labour brokers, but do not tar everyone with the same brush. Foremost among labour's concerns is that the employment practice works against collective bargaining, in that it divides and fragments the workplace through pay differentials and other means. Needless to say, collective bargaining is the mainstay of organised labour. In trying to grapple with the problem, several unions under labour federation Cosatu's leadership have decided that perhaps the answer lies in amending the law because the country's legislation regards labour brokering as a legitimate activity. This practice should be banned, they say. In this debate, we would do well to listen to the University of Cape Town's Labour and Enterprise Policy Research Group's cautionary voice, reminding us that the answers are not as clear cut as we think. One thing is certain: if the government moves to ban labour brokering domestically, this will most certainly be challenged on constitutional grounds, as happened in Namibia’.

This and much more at my forthcoming open seminars. I am afraid I won’t be hitting the road again until 2011.

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