Time to both walk and talk the talk

Posted on January 25, 2011


A new bout of verbiage concerning labour brokers and the nature of jobs erupted as the country got back to work after the new year break. And the confusion it created was compounded by proposed changes to the labour laws produced last month by the government.

According to one set of interpretations, the ANC has changed its position on demanding decent jobs, adopting instead the cry of the free marketeers that any job is better than no job. And Cosatu, after insisting that labour brokers — “modern day slave traders” — be banned, has now accepted the inevitability of labour broking in a modern economy.

These interpretations may be correct. Or they may not be. What is certain is that positions are changing.

They are doing so against the background of the arguably badly drafted proposed changes to the labour laws. These are still open to discussion and amendment, but they provided the opposition Democratic Alliance (DA) with an opportunity to score political points with the sensationalist claim that millions of jobs were being threatened.

However, the DA does seem to equate the existence of labour brokers with job creation, which is a clear fallacy. Labour brokers merely provide workers for jobs required on a temporary basis by the various productive sectors of the economy.

Predictably, Cosatu “totally rejects” the DA assertion that labour brokers create jobs. But the federation admits that it is “still examining the details” of the government’s proposed changes.

Significantly, however, the federation now denies that any changes will “effectively prohibit labour broking”. This does seem to imply that Cosatu accepts that “temporary employment services” — the term used in the Labour Relations Act (LRA) — are essential. And that, presumably, means that labour brokers of one kind or other are necessary.

Yet the key proposal by the government is to scrap Section 198 of the LRA that deals with labour broking. It is the section that makes clear that the problem in the supply and exploitation of casual workers lies with law enforcement; that it is the labour department that is at fault for effectively turning a blind eye to law breaking.

As this column pointed out in October 2009: “In law, the end employer who hires a broker to supply labour, hires the employees of the broker. The broker is, therefore responsible for the pay and conditions of the workers outsourced to other companies. As such, any broker who does not provide all the usual rights and benefits to workers is breaking the law.”

Workers employed on a temporary basis also have every right to be unionised, to organise and to negotiate with their employers. It is here that the unions have fallen down.

Last year, for example, the Cosatu-affiliated Communication Workers Union protested that the Post Office had employed labour brokers to provide 8 600 casual postal workers at an annual cost of some R350 million. According to the union, the hourly rate paid to the brokers was more than double the pay received by the workers.

The question to be asked here is why, since the union and its members must have known about these workers at the time, they did not recruit them or refer them to a perhaps more appropriate general union? And why, if the casual employees were being underpaid, did the union do nothing about this?

It also seems that the matter was not reported and no checks were made to discover if the brokers who supplied the workers were operating within the law. In other words, were they acting as legal employers?

At that stage Cosatu’s demand that labour brokers be banned had already become entrenched as a campaign. So the question about whether the Post Office might — especially over the Christmas/New Year period — require additional, temporary staff, tended to be ignored. As was the question of additional, temporary staff in other sectors such as agriculture.

Also largely ignored were suggestions that unions or the government might establish labour “pools” or exchanges that could supply flexible labour. In the face of mushrooming private “maid service” businesses, the SA Domestic Workers’ Union toyed with the idea of establishing a union-based service, but this never got off the ground.

However, what this all boiled down to was the acceptance that there was a need for temporary employment. The only question was: how is it to be organised.

Under the new proposals, the matter is further confused. Employers of labour are to be the only employers in law of both temporary and permanent staff. And all staff must be employed permanently, “unless the employer can establish a justification for employment on a fixed term”.

But without brokers or another agency, where do employers turn for temporary staff? In any event, current legislation already forbids the long-term “casual” employment of staff.

This whole question was further complicated this month by Gwede Mantashe, chairman of the Communist Party (SACP), secretary-general of the ANC and former general secretary of the National Union of Mineworkers (NUM). He made a carefully crafted comment that amounted to “any job is better than no job”.

This seems to completely contradict the ANC’s 2009 election pledge to back Cosatu’s call for “decent jobs”; jobs that are permanent and provide reasonable wages and conditions. Not so, say Mantashe’s supporters. They point out that Mantshe also said that once workers were employed, they could organise and negotiate better wages and conditions.

He also pointed out that any new jobs in the mining sector would automatically qualify for the established and NUM-negotiated rates of pay and levels of benefit. This, they say, promotes the need for greater unionisation while stressing the benefits to workers of being union members.

So job creation, like the definition of labour broking, seems to depend on interpretation. But, at the very least, the statements made so far this month are riddled with ambiguity.

Perhaps it is time that politicians and labour leaders learned to say plainly what they mean — and mean what they say.