Klass Looch Associates

Employer OHS Champion since 1986 


Dear Folks

I thought that I had heard it all! Even by today’s gutter politics standards, the farce surrounding the ‘hearings’ by the Labour Portfolio Committee into the practice of labour brokers, takes the cake. Naturally the Minister of Labour, with his reckless and incendiary remarks about the practice, equating them, including reputable JSE listed companies, with slave traffickers, set the tone for a total sham. He was quickly emulated by Ms Yengeni and the Labour Portfolio Committee whose disgraceful antics would have made Goebels proud! She went as low as labelling labour brokers nothing less than drug dealers. In a society where banality has become a norm and enjoys a following by the unsophisticated, the unions quickly tried to top her and her aggressive Portfolio Committee by bussing in their members who gave ‘testimony’ about of workers in the security industry forced to have sex with labour brokers if they wanted to remain employed. Labour brokers were then blamed for the spread of HIV and Aids and the prevalence of domestic violence. Bottles were hurled at anyone with an opposing view or anyone that pleaded for a sane approach. Opposition members were forced to stage a walkout and then subjected to more ridicule by the ruling party and unions .

We have definitely taken a leap back from the Madiba days when politics and social intercourse had a element of decorum and leaders set an example with their behaviour. Political parties and trade unions leaders (is there a difference?), have set in motion something that will come to haunt this country for years to come. Reasonable debate has degenerated into cheap banal shots while any opposition is ridiculed. No-one plays the ball anymore since it is easier and, in their idiotic minds, more effective to play the man. Call them whores, monsters, oppressors, apartheid apologists and you shut them up. I was watching history channel the other night, and I see some startling resemblances to the Nazi propaganda tactics before the war. Lenin and Stalin would also be proud.

Having got that off my chest, let’s get back to labour brokering
. Terry Bell, in his piece of the topic, points out that the department of labour and the unions have a share in the blame for the existence of unscrupulous labour brokers. There are a great many unacceptable labour practices throughout South Africa, many of them undoubtedly related to the treatment of workers supplied by labour brokers. But the source of the problem may lie not so much with how workers were recruited, but in the fact that the Department of Labour has proved next to useless in monitoring, let alone prosecuting, breaches of labour law. Trade unions too, should take some of the responsibility for not prosecuting more vigorously breaches not only of the law concerning wages and length of employment but, often even more importantly, issues of health and safety. Regulations already exist; they are contained in the Labour Relations Act and the Basic Conditions of Employment Act. In fact, any worker who labours for an employer for more than 24 hours a month is, in law, an employee and, as such, qualifies - proportionate to the hours worked - for the rights and benefits of an employee. These laws may often be ignored or may be inadequate. But this is where the debate should start. Instead, in the often emotive furore about whether labour brokers should be banned, regulated or self-regulated, an impression is created that agencies supplying temporary or casual labour operate in a lawless and therefore anarchic environment. Clearly, they do not. This is obvious in the welter of evidence about reports to the department about abuses of the law. However these result, all too often, in no action whatsoever. Yet the department, the unions and the employers should all be aware that labour brokers, under the title "temporary employment services (TES)" are covered by current labour legislation. In law, the end employer who hires a broker to supply labour, hires the employees of the broker’.

So what is the OHS status of workers employed by a client via a labour broker? Who is responsible for ensuring that they have a safe and healthy environment in which to work? Surely one cannot expect the labour broker to assess the risks at a workplace to which his employees are exposed and to train them into the appropriate precautionary measures? While it may seem obvious, section 1((x) of the OHS Act defines an ‘employer" as meaning any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him, but excludes a labour broker as defined in section 1(1) of the Labour Relations Act, 1956 (Act No. 28 of 1956). The LRA of 1956 has been repealed and the new LRA defines a Temporary Employment Service (TES) as an employer. The Supreme Court Of Appeal (SCA) in
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck [2007] (SCA)endorsed the new LRA definition and even extended rights to labour broker employees which other ‘employees’ do not enjoy. The right to sue the (client) employer or the OHS Act employer for damages. Other employees are deprived of this right through section 35of the COID Act.

The intention of the legislator in the OHS Act is, however, quite clear. Employers cannot discriminate or differentiate between genuine employees and labour broker employees for purposes of
sections 8and 13of the OHS Act. It would make nonsense of OHS legislation if employers offered their own employees a safer and healthier working environment. I have never seen any such discrimination with my exemplary clients although we have had some scary moments post an incident when trying to demonstrate that such workers were indeed adequately trained.

See some of you next week when I kick off with my
OHS legislation Workshops