Labour broking stays

There will be no ban on labour broking and self-regulation of the industry is also not an option, says labour minister Nelisiwe Oliphant.

Speaking at a briefing yesterday, the minister said it will not be desirable to rely on self-regulation or codes of conduct to deal with the kind of abuses that have occurred with labour broking.

She also said there cannot be an outright ban of the industry since labour brokers are permitted by the law. “You can't just ban something that's in the legislation. The process is to amend. It's the abuse of that law that led to the amendments.”

Oliphant added that dealing with labour broking will instead require additional amendments to protect workers.

Draft amendments to the Labour Relations Act (LRA), Basic Conditions of Employment Act and Employment Equity Act, and a new piece of proposed legislation - the Public Employment Services Bill - were published in the Government Gazette in December.

The amendments propose a repeal of section 198 of the LRA, which regulates labour brokers, effectively prohibiting labour broking and leading to job losses, according to Democratic Alliance (DA) labour shadow minister Ian Ollis.

Oliphant gave no indication as to whether section 198 will be repealed or not, but said discussions at the National Economic Development and Labour Council (Nedlac) around the amendments are going well.

New legal drafts on temporary employment services, fixed-term contracts and other issues have begun and the amendments are essentially being broadened.

“A central objective of the current round of amendments to labour legislation is to deal with the increase in labour broking and, in particular, with the abuses associated with the practice and the way in which it deprives many workers of basic protections under labour law.”

The minister added that Nedlac should be done with its analysis by the end of August, but - if not - it will request an extension and the Bills will be tabled in Parliament by no later than the first quarter of next year.

She said there are three upcoming meetings on the matter. They will take place on 21 July, 2 August and 16 August.

“Although it may take time, I am confident that we will have a better set of amendments to our labour legislation once the Nedlac process has been concluded.”

Despite previous statements where the department said banning labour broking was a possibility, Oliphant now says the department is not looking to ban the industry.

“We are aware that there are many who prefer to work on fixed-term contracts. As government, our intention is not to limit the right of persons to work in the way that they choose, but rather to ensure that workers on fixed-term contracts have the same rights as other workers and that it is clear who the employer is when such a person works for a client.”

She added that businesses that make use of fixed-term contract workers will have to accept their responsibility as the employer of such a worker and cannot engage in unfair dismissals through contract termination.

“Legal amendments to regulate fixed-term contracts, temporary work, part-time work and the temporary employment agency sector are a major part of the reforms that we seek to introduce.”

Since there will be no ban on the industry, Oliphant says dealing with labour broking will require additions to labour legislation to provide added protection for employees on fixed-term contracts, part-time and temporary employees.

In this regard, one of the department's priorities is to employ more inspectors.

National Treasury has already said it will give the department R60 million to hire additional inspectors.

Oliphant said the key challenge is to expand the scope of protection beyond those who are engaged in formal employment relationships.

Oliphant said there is a consensus between labour and business on the proposed amendments, even if there are minor changes to be made.

She added that the challenge was the definition of terms like “temporary workers” and that has been addressed so there is consensus now.

The minister explained that the reason workers are still calling for a ban on labour brokers, like the engineering sector currently is, is because they don't have the right information.

She said federations must constantly inform their constituencies about the progress being made at Nedlac and if they do, there won't be threats of strikes.

The DA and organised business opposed a ban of labour broking and called for greater regulation instead.

An outright ban on labour broking would harm the ICT services sector, as it would push up operating costs, hamper bottom line profits, and could worsen the sector's current skills shortage, according to analysts.

However, the Congress of SA Trade Unions has endorsed the amendments, saying labour broking is a new form of slavery and needs to be banned completely. It says it will continue to insist that nothing less than a total ban will be acceptable.