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CityPress - - Busi­ness - DE­WALD VAN RENS­BURG de­wald.vrens­burg@city­press.co.za

Ca­sual and out­sourced work­ers have been given pow­er­ful new rights, but are be­ing blocked from ex­er­cis­ing them. This is the crux of a le­gal chal­lenge against one of South Africa’s cen­tral labour mar­ket in­sti­tu­tions, the Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion and Ar­bi­tra­tion (CCMA). A non­govern­men­tal or­gan­i­sa­tion in Ger­mis­ton, the Ca­sual Work­ers’ Ad­vice Of­fice, wants the high court to strike a CCMA rule that makes reg­is­tered trade unions and lawyers the only form of rep­re­sen­ta­tion work­ers can have. They could then or­gan­ise out­side the in­creas­ingly splin­tered and in­ef­fec­tual world of reg­is­tered trade unions.

The labour law was changed last year, the­o­ret­i­cally giv­ing ca­sual and out­sourced work­ers new rights to be “deemed” per­ma­nent and de­mand pay equal to that re­ceived by di­rectly em­ployed work­ers.

Ac­cord­ing to the Ca­sual Work­ers’ Ad­vice Of­fice, this causes a “para­dox” be­cause the in­sti­tu­tional ma­chin­ery, like the CCMA, pre­vents them from ex­er­cis­ing th­ese rights.

From April last year, the Ca­sual Work­ers’ Ad­vice Of­fice started help­ing work­ers de­clare dis­putes en masse at the CCMA around the new “sec­tion 198” rights.

It can­not rep­re­sent them in the pro­ceed­ings, how­ever, so in­stead th­ese work­ers square off against well-pre­pared em­ployer groups and labour lawyers alone.

Ca­sual Work­ers’ Ad­vice Of­fice rep­re­sen­ta­tives often have to sit out­side the room.

By Fe­bru­ary this year, the ad­vice of­fice had helped more than 7 000 work­ers take 172 cases to the CCMA.

Th­ese in­volve ma­jor em­ploy­ers such as Sho­prite, Spar, Pep­kor, Clover and Nam­pak.

The labour bro­kers in­volved in­clude JSE-listed Ad­corp, Work­force, Prime­serv, Bid­vest’s labour broking sub­sidiary, Bid­vest TMS, and many other smaller play­ers.

Th­ese seem to make up half of all dis­putes at the CCMA re­lated to the new sec­tion 198 rights, mean­ing that one small non­govern­men­tal or­gan­i­sa­tion has made more at­tempts to ex­er­cise the new rights than all the trade unions put to­gether.

Igshaan Schroeder, the Ca­sual Work­ers’ Ad­vice Of­fice co­or­di­na­tor, said he didn’t want to dis­cour­age peo­ple from join­ing unions.

But unions aren’t help­ing the ma­jor­ity of work­ers, and the prac­ti­cal out­come the ad­vice of­fice is hop­ing for is that work­ers will rep­re­sent each other with help and train­ing from or­gan­i­sa­tions like it.

There are al­ready work­ers’ or­gan­i­sa­tions be­ing formed all over the coun­try.

The most im­por­tant strikes in re­cent years, in­clud­ing the 2012 plat­inum belt strike and the Western Cape farm worker up­ris­ing shortly there­after, were started by work­ers’ com­mit­tees, not unions, Schroeder said.

“The de­bate shouldn’t be one of or­gan­i­sa­tional form,” he told City Press. “I don’t think that is ir­rel­e­vant, but for us it is re­ally a po­lit­i­cal ques­tion.

“Which sec­tor will be the bedrock of the labour move­ment? For us, it is th­ese [non-unionised ca­sual work­ers].”

Schroeder pointed to the pro­lif­er­a­tion of tiny splin­ter unions cre­ated by dis­senters and ex­pelled lead­ers of the ma­jor unions.

“The union move­ment has col­lapsed. A rule priv­i­leg­ing trade union rep­re­sen­ta­tion may at one time have made sense,” Schroeder said in his af­fi­davit.

Unions, as we know them, were cre­ated in South Africa in the con­text of a labour mar­ket that ex­isted in the 1970s.

“Times have, how­ever, changed. Work prac­tices have evolved, and so has the na­ture of the trade unions. Trade unions now or­gan­ise less than a quar­ter of the work­force.”

To­day’s work­force of pre­car­i­ous em­ploy­ees who have in­ter­mit­tent em­ploy­ment sim­ply can­not prop­erly use unions, he ar­gues.

“In­stead of fo­cus­ing on unit­ing work­ers as a class ... trade unions in­creas­ingly op­er­ate in their own in­sti­tu­tional in­ter­ests, es­tab­lish­ing in­vest­ment com­pa­nies and ‘poach­ing’ one another’s mem­bers,” Schroeder said.

Draw­ing the non-unionised ma­jor­ity into the fold is the main stated ob­jec­tive of the planned new labour fed­er­a­tion spear­headed by Zwelinz­ima Vavi and the Na­tional Union of Me­tal­work­ers of SA, but Schroeder said it shouldn’t be a mat­ter of sav­ing the ex­ist­ing unions.

If the ques­tion was how to or­gan­ise the in­creas­ing mass of ca­su­alised work­ers, his an­swer was that you help them The wa­ter­shed amend­ments to the Labour Re­la­tions Act around labour bro­ker­ing and tem­po­rary em­ploy­ment came into ef­fect on Jan­uary 1 last year, but im­me­di­ately caused le­gal con­fu­sion.

The law says that af­ter three months, ca­sual work­ers are deemed to be em­ployed by the client of their labour bro­ker. But this is only for “pur­poses of the Labour Re­la­tions Act”.

Once this hap­pens, they “must be treated, on the whole, not less favourably than an em­ployee of the client per­form­ing the same or sim­i­lar work, un­less there is a jus­ti­fi­able rea­son for dif­fer­ent treat­ment”.

This al­lows two things – pro­tec­tion against re­trench­ment by the client and claims for equal pay. 250 000 200 000 150 000 100 000 or­gan­ise them­selves.

The CCMA rules were push­ing work­ers who do man­age to set up com­mit­tees into con­vert­ing th­ese into unions, he said.

That comes with oner­ous re­quire­ments that could be an­ti­thet­i­cal to how work­ers’ com­mit­tees ac­tu­ally worked, he said.

Do­ing all of this when all you re­ally wanted was ac­cess to the CCMA on the same level as some­one who had a good union in their cor­ner made no sense, said Schroeder.

“If we can change this rule, maybe that will cre­ate con­fi­dence to cre­ate new or­gan­i­sa­tions.”

The CCMA said in a writ­ten re­sponse to ques­tions that due The CCMA was cre­ated in 1996 to be a non­ad­ver­sar­ial first line of de­fence against the kind of in­tractable labour dis­putes that have be­come com­mon­place in South Africa.

Orig­i­nally, the idea was that it would han­dle a caseload of about 30 000 cases a year, but last year the or­gan­i­sa­tion re­ceived more than 170 000 re­fer­rals – and that num­ber is grow­ing every year.

As things are, al­most 700 cases come to the CCMA every day.

The bud­get of the CCMA has grown in tan­dem, cost­ing an es­ti­mated R800 mil­lion this year.

Pro­jec­tions are that the caseload will soon pass the 200 000 mark.

CCMA cases per year

to the cur­rent dis­pute, it couldn’t “en­gage on the de­tail” of why union of­fi­cials, but not other work­ers, were per­mit­ted to rep­re­sent em­ploy­ees.

“The CCMA would have pre­ferred that the ap­pli­cant had en­gaged with the com­mis­sion prior to mak­ing a court ap­pli­ca­tion, as we are of the view that this is­sue should and can be re­solved without the in­ter­ven­tions of the court. The CCMA is en­gag­ing with the ap­pli­cant in this re­gard.”

Schroeder said they had asked the CCMA to put a pro­posal on the ta­ble.

“If we can set­tle this, that’s cool. That went nowhere,” said Schroeder.

PHOTO: REUTERS

A STITCH IN TIME A woman works at a cloth­ing fac­tory out­side Jo­han­nes­burg. Ca­sual work­ers want to be able to or­gan­ise out­side the in­creas­ingly splin­tered and in­ef­fec­tual world of reg­is­tered trade unions

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