Name of presenter: Tembeka Ngcukaitobi Title of Presentation : Towards a new regime for Labour Brokers and other forms o

1. SASLAW SEMINAR 3 APRIL 2012 Name of presenter: Tembeka Ngcukaitobi Title of Presentation: Towards a new regime for Labour Brokers and other forms of short term employment

2. TOWARDS A NEW REGIME FOR LABOUR BROKERS • Political context • Constitutional context • Substance of the changes • Possibilities for the future Author and Date

3. TOWARDS A NEW REGIME FOR LABOUR BROKERS Political context ‘Labour brokers are the main drivers of the casualisation of labour. Their practices are the absolute contradiction to the principle of decent work. they have driven down workers’ wages and conditions of employment. They do not create any jobs but sponge off the labour of others and replace secure jobs with temporary and casual forms of employment.’ (my emphasis) Zwelinzima Vavi, National Press Club, 6 March 2012 ‘We demand a total ban of the labour brokers, a system we have described as human trafficking and modern day slavery’ COSATU memorandum, 7 March 2012 COSATU’s claims were disputed by the Confederation of Associations in the Private Employment Sector: 72% of labour broker contracts end because employees have found permanent employment; they provide leave, medical aid , UIF and training Author and Date

4. TOWARDS A NEW REGIME FOR LABOUR BROKERS Response of the government - reject the proposal to ban labour brokers - addressed the twin concerns (security of employment and terms and conditions of employment) Constitutional context - section 23(1) of the Constitution. Its dominant purpose is security of employment. - central concern is threat to security of employment, a core value of the Constitution African Personnel Services (Pty) Ltd v Govt of the Republic of Namibia [2011] 1 BLLR 15 (NmS) ‘Labour is not a tradable innate object but an activity of human beings. Unlike a commodity, it cannot be bought or sold on the market without regard to the inseparable connection it has to the individual who produces it.’ See too: Author and Date

5. TOWARDS A NEW REGIME FOR LABOUR BROKERS International context The International Labour Organisation has also addressed the situation of ‘disguised employment relationships’. Members of the ILO, of which South Africa is one, are required by ILO R198 to ‘combat disguised employment relationships…noting that a disguised employment relationship occurs when the employer treats an individual other than an employee in a manner that hides his or her true legal status as an employee have the effect of depriving workers of the protection they are due.’ (my underlining) ILO R198 provides that employment must be determined ‘primarily by the facts relating to the performance of work and the remuneration of the workers, notwithstanding how the relationship is characterised in any contrary arrangement, contractual or otherwise, that may have been agreed between the parties.’ Author and Date

6. TOWARDS A NEW REGIME FOR LABOUR BROKERS Amendments to section 198 Joint and several liability of labour broker and client (s198(4)) s198(4A): consequences of joint and several liability: - employee may institute proceedings against either the labour broker or client or both; - a labour inspector, in terms of BCEA, may secure compliance against either the labour broker or client or both; - any order or award against a labour broker or client may be enforced against either S198(4B): a labour broker must provide an employee (it assigns to client) with particular of employment in terms of BCEA S198 (4C): employee may not be employed on terms and conditions which are not permitted by the LRA, any employment law, sectoral determination, and a collective agreement applicable. S198(4F): registration of labour brokers. The fact that a labour broker is not registered is not a defence. Author and Date

7. TOWARDS A NEW REGIME FOR LABOUR BROKERS Sections 198A-198D (Part-time and fixed-term workers – the casualisation problem) s198A(1): temporary services means work for a client: - for a period not exceeding 6 months; - as a substitute for an employee that is temporarily absent; - in a category of work and for any period of time which is determined to be temporary service by a collective agreement, sectoral determination or notice published by the Minister (Section does not apply to employees earning in excess of threshold set in terms of s6(3) of BCEA) s198A(3)(a): an employee performing temporary services for the client is the employee of the labour broker; s198A(3)(b): an employee not performing temporary services for client is deemed to be the employee of the client. (refer to s198A(1)) s198A(5): an employee deemed to be an employee of the client must be treated, on the whole, not less favourably that employees of the client performing similar work Author and Date

8. TOWARDS A NEW REGIME FOR LABOUR BROKERS Author and Date S198B – fixed term contracts with employees earning below s6(3) of BCEA threshold s198B(3): an employer may engage an employee on fixed term contracts in excess of 6 months only if: - the work is limited or of definite duration; - the employer can show a justifiable reason for the fixed term contract (grounds for justification include: replacement of absent workers, increase in volumes for up to 12 months, training, specific project, trial period, work permit is fixed, work is seasonal, fixed term public works project, funding is limited, beyond retirement age) s198B(6): employment in breach of s198B(3) is deemed to be of indefinite duration Exclusions from s198B: (a) excess of threshold, (b) small employers (less than 10 employees), employer with less than 50, and in operation for less than 2 years (c) the contract is permitted by statute, collective agreement or sectoral determination

9. TOWARDS A NEW REGIME FOR LABOUR BROKERS Author and Date s198C: Part-time employment of employees earning below earnings threshold s198C(3): an employer (a) must not, on the whole treat a part-time employee less favourably than a comparable full-time employee doing similar work, unless there is a justifiable reason for doing so; (b) provide a part-time employee with access to training and skills development on the whole not less favourable than that applicable to full time employees Exclusions to s198C: (a) earning in excess of threshold, (b) small employers, (c) employees working less than 24 hours a month, (d) during first 6 months of continuous employment. Defining a part-time employee: remunerated according to the time the employee works and who works less hours than a comparable full-time employee.

10. TOWARDS A NEW REGIME FOR LABOUR BROKERS Author and Date s198D(1): disputes on the interpretation and application of s198A-198C to be referred to CCMA or bargaining council for conciliation and arbitration. s198D(2): A justifiable reason includes that the different treatment is as a result of the application of a system that takes into account: • Seniority or length of service; • Merit; • Quality or quantity of work performed; • Any other criteria not prohibited by s6(1) of the EEA