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.
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