Sell­ers of labour not buy­ing new act

CityPress - - Business - Terry Bell busi­ness@ city­press. co. za

In an un­equal so­ci­ety, and es­pe­cially one suf­fer­ing an economic cri­sis, the sell­ers of labour will always be dis­ad­van­taged. That is the sim­ple re­al­ity of the sys­tem in which we live. An­other re­al­ity is that em­ploy­ers, with their eyes firmly fixed on the bot­tom line and de­ter­mined to main­tain prof­its, div­i­dends and bonuses, will fight to in­crease the ad­van­tages they al­ready have. And one of the ar­eas that re­duces em­ployer ad­van­tage is labour laws that en­deav­our to cre­ate a fairer work­ing en­vi­ron­ment.

So it was wholly pre­dictable that there would be an out­cry about the amend­ments, es­pe­cially to the Labour Re­la­tions Act (LRA), that came into force this week. Sig­nif­i­cantly, the trade unions were not ex­actly ex­press­ing glee. Like some less ide­o­log­i­cally ori­en­tated em­ploy­ers, they war­ily wel­comed the new rules.

Th­ese amend­ments have been four years in the mak­ing, fol­low­ing what the labour depart­ment refers to as “of­ten ro­bust de­bate”. The re­sult was the usual com­pro­mise between the de­mands of labour and those of the em­ploy­ers.

At the same time, the unions noted that while the new act sought to pro­tect vul­ner­a­ble work­ers, the prob­lem would be with en­force­ment

So it was un­sur­pris­ing that the DA, backed by sev­eral em­ployer bod­ies, called for the fi­nally agreed draft not to be signed into law. At the same time, the unions noted that while the new act sought to pro­tect vul­ner­a­ble work­ers, the prob­lem would be with en­force­ment.

This has been the prob­lem since the LRA was first pro­mul­gated in 1995. And, with in­creas­ing un­em­ploy­ment and greater economic pres­sures, it has grown worse.

In a mi­nor­ity of cases and within parts of some in­dus­tries, em­ploy­ers have been dis­cov­ered who wholly ig­nore the labour laws, cap­i­tal­is­ing on the des­per­a­tion of work­ers. An­other ap­par­ently po­lit­i­cally well-con­nected mi­nor­ity with deep pock­ets and a will­ing­ness to lit­i­gate has also been able to ig­nore, with im­punity, the plight of un­paid for­mer em­ploy­ees.

A clas­sic case is the Aurora mine, where work­ers were sim­ply de­serted more than four years ago. This week the Na­tional Union of Minework­ers stated: “Work­ers at Aurora are still strug­gling and liv­ing in ex­treme poverty.”

But the main prob­lem in the work­ing en­vi­ron­ment is the growth of non­stan­dard labour, of men and women em­ployed on a ca­sual ba­sis or on con­tract. This “ca­su­al­i­sa­tion” of the work­force is one means em­ploy­ers use to cut costs, since such work­ers are deemed to be self-em­ployed and they have to make their own ar­range­ments re­gard­ing pensions, prov­i­dent funds and med­i­cal aid.

In a sur­vey pub­lished this week, the Trade Union Congress in Bri­tain re­vealed that the pay of con­tract work­ers – clas­si­fied as self-em­ployed – was on av­er­age now less than half that of em­ploy­ees. Unions main­tain that the same “race to the bot­tom” in wages ap­plies with ca­su­al­i­sa­tion in South Africa.

And, un­til the amend­ments this week, “non­stan­dard” work­ers were ex­cluded from the Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion (CCMA) process. This process was es­tab­lished to pro­vide a non-in­tim­i­dat­ing and free means for labour dis­putes between worker and boss to be re­solved ei­ther by con­cil­i­a­tion or ar­bi­tra­tion.

But any em­ployer, per­haps feel­ing vin­dic­tive and having the fi­nan­cial re­sources, could re­ject a CCMA ar­bi­tra­tion find­ing for the em­ployee and take the case on re­view to the labour court. This could drag the mat­ter out for months or even years.

Even the CCMA process is now badly un­der­mined by a high court rul­ing in Septem­ber last year that al­lowed lawyers, by right, to ap­pear at the CCMA. This can in­tro­duce an el­e­ment of what has been termed le­gal thug­gery, in that most work­ers, con­fronted by slick lawyers with bulging brief­cases, will read­ily be in­tim­i­dated.

I have writ­ten and heard about cases where work­ers felt so in­tim­i­dated that they sim­ply dropped their com­plaints. But un­til very re­cently, I did not fully un­der­stand the man­ner and ex­tent of the in­tim­i­da­tion. Now I do, be­cause I have gone through the process, per­haps un­for­tu­nately, be­fore the lat­est amend­ments came into play.

Th­ese ex­tend pro­tec­tion to work­ers like my­self who had been con­tracted an­nu­ally for 17 years to un­der­take work for one em­ployer. But I was judged not to be an em­ployee, so al­though it was held that I had been sub­ject to un­fair labour prac­tice, had been treated shab­bily and with “cal­lous dis­re­gard”, my only re­dress was through the gen­er­ally costly court process.

So while I am grate­ful for the ex­pe­ri­ence, I am even more grate­ful that pro­tec­tion has been ex­tended to work­ers more vul­ner­a­ble than my­self.

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