The livelihood of one-million people, who support 3,6-million others, hangs in the balance with the proposed ban on labour brokering, says local association representing labour brokers, the Confederation of Associations in the Private Employment Sector (Capes).
In its submission to the port-folio committee on labour, Capes indicates that labour brokers are South Africa’s single biggest channel for introducing never-employed African youth into the labour market. Bowman Gilfillan director John Brand adds that an absolute ban of labour brokers is economically and legally impractical.
“You cannot totally outlaw something that is a legitimate economic activity. It would have very serious implications for the economy, making it difficult to import skills and to deal with the essential ebb and flow of an employer’s workforce. It would also deprive the never employed underclass of opportunities to get a foot into the job market,” he adds.
Nursing labour brokerage Charisma MD and Association of Nursing Agencies of South Africa chairperson Werner Laubscher highlights the impact that a ban would have on the country’s health system. He explains that, with regard to nursing specifically, it is common knowledge that hospitals are understaffed and cannot deliver healthcare services without the aid of labour brokers, who essentially act as a conduit to shift the tide of available skills to where they are most needed since hospitals’ needs change from day to day. Failure to do this, he says, would mean that more hospitals would be unable to provide critical healthcare for the country and that failure to shift nursing skills between hospitals could result in the collapse of the already over- burdened healthcare system.
Brand explains that the controversy over the banning of labour brokers highlights a range of competing legitimate economic and human rights interests, which, he insists, have to be properly balanced.
“What is plaguing the current debate is radical, zero sum positions where parties only look at the problem with their interests in mind and fail to recognise the interests of other parties in the economy and society,” he says.
He explains that there are times when employers have a legitimate need for temporary workers. For example, they may need more employees at certain times and fewer at other times because of an ebb and flow in demand, or they may require specialist workers for temporary breakdowns and maintenance, or substitute workers when people are absent or go on leave. However, he adds that temporary staff can also be used illegitimately to, for example, undermine collective bargaining, job security, and minimum terms and conditions of employment.
Brand says that there is widespread abuse of this kind, which needs to be regulated. He cites further examples of employers who temporise the worker force to reduce the wage bill, to circum- vent the unfair dismissal provisions of the Labour Relations Act and to undermine Union strength. He says that there are instances where temporary workers have worked continuously for as long as 15 years with a single employer while earning significantly less than permanent workers doing the same job.
Some efforts have been made to deal with some of the problems. The Basic Conditions of Employment Act and the Labour Relations Act, for example, provide that the client is jointly and severally liable with the labour broker for the labour broker’s basic obligations in relation to the terms and conditions of employment other than dis- missal. This, Brand says, provides some protection against abuse by fly-by-night labour brokers who leave their workers in the lurch, but it certainly does not prevent all the abuse.
What is required, says Brand, is regulation which, for example, stipulates that temporary employees should not be provided with terms and conditions of employment less favourable than the minimum ones given to permanent employees in the same job. This would discourage employers from using temporary employees except when genuinely necessary to meet operational requirements.
Another possible regulation could include a cap on the length of time that a person is allowed to be employed temporarily in a particular position and in a particular period of time before being deemed to be a permanent one. A stipulation of the maximum percentage of a company’s workforce that may be made up of temporarily employed workers is another example of possible regulation. There is also a need for stringent regulation and monitoring of labour brokers to ensure that they comply with income tax and other laws.
The Federation of Unions of South Africa (Fedusa), in its submissions during the National Economic Development and Labour Council consultations, indicated that the contentious issues, such as duration, social security, dismissal, benefits and freedom to organise and associate, could all be tackled through proper legislative provisions.
“Fedusa’s position on regulation and measures to secure decent work were supported at the discussions in respect of labour brokers at the Inter-national Labour Organisation (ILO) in October 2009,” says Fedusa general secretary Dennis George.
Further, Fedusa has called on the Minister of Labour to change his stance on supporting a banning of labour brokering and endorse the principle to tackle the issue through proper regulation.
Laubscher fully supports stricter regulations and legislation, provided that they do not negatively impact on service delivery or further erode the already emaciated profit margins of labour brokers. He adds that the majority of brokers operate in accordance with the law and do not seek to exploit the workers. Regulations, if they are properly enforced, will weed out the fly-by-nighters and that, in turn, would give the entire industry a credible reputation.
Brand firmly believes that this balancing of the differing interests would allow bona fide labour brokers to exist and for employers to meet their genuine temporary worker needs. It would also allow for the underclass to start acquiring skills and to move into permanent jobs. In addition, it would protect workers from gross exploitation and moderate the extent that job security and collective bargaining could be undermined.
Fedusa recognises the need to balance the interests of the different parties and, as a result, has signed a memorandum of understanding with Capes to create a strategic partnership and a national social dialogue platform to achieve fair con- ditions for the South African temporary employment industry and temporary employment agency workers.
As social partners, both parties support the establishment of a regulatory framework for the temporary employment industry to promote decent work for temporary workers as defined by the ILO to ensure that the constitutional rights of workers employed in the temporary industry are respected, promoted and protected.
Fedusa states that both parties commit themselves to use the principles contained in the ILO Convention 181 and Recom-mendation 188 on private employment agencies as a framework to improve the functioning of the country’s labour market and ensure that the role of private employment agencies is secured.
Fedusa labour market chamber representative Leon Grobler indicates that social partners globally have learnt a great deal from a similar agreement that had been entered into between Uni Global Union and the Confederation of Private Employment Agencies, as well as from other practices.
Grobler further indicates that the parties have now concluded the first phase of their research into best practices internationally with regard to the temporary employment sector and strongly endorses the fact that regulation is, therefore, the appropriate response.