Casual employees have little recourse in battle for rights
Wilhemina Segakweng (not her real name) arrives after sunset at the brewery and distribution depot for her 12-hour shift.
When she leaves at 6am the next day, by her account she will have earned R60. Paid by the quanta earned in piece work, her pay is uncertain; it will depend on whether the forklift arrives to pick up the pallets and how many are moved.
Segakweng works for CJK Labour, one of four labour brokers servicing Heineken’s Sedibeng Brewery. She is part of a group of workers at the brewery who approached the Casual Workers Advice Office (CWAO) to bring attention to their plight.
Workers at Sedibeng brewery complain of mistreatment and poverty wages of R30 an hour on average, while some who are paid on a piece-work basis earn as little as R24 after a 12-hour shift.
I put these allegations to Heineken SA’s corporate affairs director, Ntombizodwa Velleman, who made it clear to me that this was “the first time [Heineken had] heard of these allegations”. She emphasised that it had no “hourly paid” employees and paid in line (and even above) industry norms. She did, however, concede that Heineken worked with a wide array of third-party providers or labour brokers.
This might make her first statement true — Segakweng and other workers may not be Heineken employees. According to Velleman, they are employees of CJK. In addition, she said, Heineken had a “good relationship” with the recognised union, the Food and Allied Workers Union (Fawu), some of whose members approached the CWAO.
Why would unionised workers approach an advice office with their complaint and, in this case, who is the employer? From an employer perspective, who should be providing a living wage and working conditions in line with the corresponding legislation?
In answering the second question, amendments to the Labour Relations Act suggest that those who have worked (even for a third party service provider), beyond the three-month mark should have access to the same pay, working conditions and benefits afforded to permanent workers of the “client” firm.
Velleman may be correct in drawing a contractual distinction between Heineken’s workers and those of the likes of CJK Labour. However, a judgment handed down in July by the Labour Appeal Court found that CJK and Heineken (for the purposes of example), cannot be dual employers and that the legislation creates a statutory employment relationship between the client (Heineken) and the “placed worker”.
This should provide relief for the likes of Nonhlanhla (not her real name). “After five years of working here,” said Nonhlanhla, “I can’t even buy a bicycle. The managers here are like submarines. Above the surface, they pretend everything is OK, but below the surface they hate us.”
The answer to the first question, why unionised workers would approach an advice office rather than the union, which has an existing relationship with the client employer, is revealing. Fawu general secretary Katishi Masemola conceded that the union had received complaints from workers but its response had been slow, largely due to a weak understanding by its structures of the system and of the amendments to legislation aimed at protecting atypical and casual workers.
FROM AN EMPLOYER PERSPECTIVE, WHO SHOULD BE PROVIDING A LIVING WAGE … IN LINE WITH CORRESPONDING LEGISLATION?
Significant “lags” and/or noncompliance exists in firm-level implementation of labour legislation by firms — even multinational firms that have the capacity and legal retainers to understand and respond. Similarly, Masemola’s concession of Fawu’s sluggish response adds to the body of experiences workers have of trade unions as either “sweetheart” organisations or structures more concerned with macrolevel politics than firm- and plantlevel grievances and the treatment of their members.
Either way, Nonhlanhla and Segakweng seem to have no one to turn to, aside from the advice office a stone’s throw away from the Germiston train station.
Cawe (@aycawe), a development economist, sat on the national minimum wage advisory panel.