CONFEDERATION OF
SOUTH AFRICAN WORKERS' UNIONS
PO Box 877
Pretoria
0001
21 Adriana Crescent
Gateway Industrial Park
Rooihuiskraal X25
Centurion
Tel: 012-661 4265 Fax: 012-661 1793
E-mail:
Website: www.consawu.co.za
Reg. No.: LR2/6/4/22 VICTORY IS CERTAIN
VERBAL SUBMISIONS ON IMPROVED REGULATION OF LABOR BROKING
BACKGROUND
It is appropriate that the underlying policies and principles be examined such that even those who do not agree should at least understand. The significance of the statement that “poverty anywhere constitutes a danger to prosperity everywhere” is of supreme importance as those who are not on the receiving end of labor broker employment tend to see even discussion on this as a nuisance. In attempting to take up the challenge and at the same time oblige we need to look at some fundamental issues such as “equal pay for work of equal value”, the division of workers into unfair/arbitrary income categories, the workers in the labour broking employment are unable to exercise freedom of association and collective bargaining as per section 23 of the 1996 constitution of the Republic and ILO conventions 87 and 98, the existing superior advantage of the employers over workers based on material resources at the employer’s disposal. There is no inherent nor apparent equality between employer and employee, the current state of laour broker employer adds to an already one sided situation of the over whelming domination of the employer just in terms of resources without initially considering any law. Are we able to talk of decent work for all and human development while labor broking exist in its current form?
LEGAL MINIMUM PAY
South Africa currently does not have an across the sector legally enforceable minimum wage/salary. This leaves workers extremely vulnerable to unscrupulous employers; this is said with caution as it is debatable if there is a scrupulous employer. People work to sustain themselves and raise their families in a decent and dignified manner. This at the very least is a birth right to any human being rich or poor. The absence of an enforceable legal minimum wage tends to condone deepening of poverty, may be unintentionally. The lagalised minimum wage shall also create business certainty, a very important business prerequisite everywhere. It is a question of moving away from the half a loaf mentality as in reality there is no half a loaf when a working person cannot afford to keep body and soul together. In 1976 refugees were given 300 Pula a month to keep body and soul together by the UNCHR, not compelled to do anything other than with some their often illegal activities, we are talking about a working person, 300 Pula of 1976 is today in rand terms about R6500,00 so I am informed. The minimum wage/salary is even more important if note is taken of the reports that less than 40% of formal workers fall within the Bargaining council system. The labour brokers surely need a bench mark to do better their business whether we do not like it. The Honorable members should also consider the current income gap as almost the highest in the world. A decent minimum wage/salary shall go a long way in denifinatley giving the labour brokers a standard against which they can be judged, a labour broker can correctly submit and question the basis of accusations and the added benefit is that it shall also be a step to narrow the income gap which is at unacceptable levels.
SOURCES OF MOTIVATION
· That alleged employees of a labor broker are human beings with full entitlement to basic human standards and development. The entitlement to basic human standards is no different to the entitlement of a billionaire, the employees are no lesser human beings as their treatment suggests. That any employment at a minimum should be able to provide the holder with :DECENT HOUSING ,HEALTHY MEALS FOR THE FAMILY, QUALITY EDUCATION FOR CHILDREN AND
QUALITY MEDICAL CARE AND TRANSPORT
· Decent work with its four pillars being security of employment, social protection, social dialogue and rights at work. What is there in these four pillars of decent work is a DECENT WAGE/SALARY; this is the oxygen of employment. In 2005 United Nations World Summit the Heads of States and Governments stated; “We strongly support fair globalization and resolve to make the goals of full and productive employment and decent work for all, including for women and young people, a central objective of our relevant national, international policies as well as our national development strategies.” This is affirmation of decent work at the highest level.
· The judiciary as it stands at the moment is but a darling of employers especially the Labor Court; it is like a slaughter house to the workers. This requires that the law should be as much as is humanly possible is free of ambiguities which may be further interpreted to perpetuate the slaughter of the workers whenever they dare show their faces at the Labor Court. This relates to enforcement of rights which the employee has very little or no capacity to enforce especially with such a hostile court.
PROPOSED CHANGES
You have set yourselves a brief such as “how can Government regulate”, the collective effect of the above considerations is that Government can regulate in the following manner:
1 MAKE AN ENFORCERBLE PROCLAMATION OR DETERMINATION OF AN ENTRY MINIMUM WAGE/SALARY OF NOT LESS THAN R 4000,00 A MONTH ABSOLUTLEY REGARDLESS OF THE NUMBER OF HOURS WORKED AS IT IS HEREBY CONSIDERED AS THE EMPLOYER RESPOSIBILITY TO ENSURE THAT THE MINIMUM NUMBER OF HOURS ARE WORKED
2 AN EMPLOYER DEFINITION WHICH CERTAILY INCULDES THE CLIENT OF THE LABOUR BROKER AS AN EMPLOYER OF THE EMPLOYEE WITH UNLIMITED LIABILITY TO THE EMPLOYEE. THE CLIENT CAN ALWAYS RECOVER THE LOSSES FROM THE LABOUR BROKER. IN THE CASE WHERE THE CLIENT ARGUES THAT THE LOSSES CANNOT BE RECOVERED FROM THE LABOUR BROKER, IT IS THEN ALL THE MORE CLEAR THAT THE CLIENT IS THE EMPLOYER. WHAT CHANCE DOES A WORKER STAND IF AN EMPLOYER CANNOT RECOVER THE LOSSES
3 IN THE CURRENT DEFINITION OF THE EMPLOYEE, THE REFFERENCE TO THE INDIPENDENT CONTRACTOR BE DELETED AND THE EMPLOYEE BE DEFINED TO INCUDE ANYBODY WHOSE MONTHLY INCOME FROM WHATEVER SOURCE IS LESS THAN R5000, 00. THIS HAD BEEN EXPLAINED IN OUR ORIGINAL SUBMISSION AS INTENDED TO REMEDY THE EXCLUSSION CURRENTLY PREVAILING IN THE INFORMAL SECTOR.
CONCLUSION
There is evidence which points to the direction that labor broking employment is a direct contributor to the deepening poverty of working people. The decline in our Human Development Index coincides with the serious growth of this type of employment in the middle eighties. Even the shacks and plastics as accommodation are very closely linked to this type of employment often referred to as back of the bakkie employment. There is a reasonable test to this, at random take a regular labor broker employee and ask the type of accommodation. The rule is as stated. Good people a labor broker can exist by sunrise and no longer exist at sunset. Dear honorable members any claim that develops as a result of this sunset disappearance is bound to fail as there are no assets, we are often told that it was labor only. In the event that workers exercise their rights, the client simply cancels the contract and the same BROKER in another name provides labor. The workers on strike are put on indefinite suspension in realty equal to dismissal. Any rate of pay as put by the client is accepted, hence labor brokers are known to supply strike breakers. The consequence of the latter is bloodshed. Honorable members, human beings cannot go on to be paid any rate of pay; this cannot be allowed to continue.
The ravaging brutality of labor broker employment is there in the retail chains beneath the beautiful looking uniform, they are often referred to as flexi labour, in the mines doing work at far less salaries than their mine “employed” counter parts and more pronounced in the brickyards. I humbly invite the honorable members in their fact finding missions to visit brick yards such as Pretoria Bricks at the door step of Pretoria.
Allow me honorable members to inform you of how closely linked is labor broking employment and discrimination, xenophobia etc. People without proper documentation are employed on the only condition that they shall allow themselves to be subjected to the worst inhuman treatment. On numerous occasions police were informed yet I am not aware of any employer who was arrested for breaking the law. Honorable members you have been deployed by your organization but on this issue surely you can afford to work together, South African human development data does not reflect well on us, at least a good step on workers in the labour broking industry shall certainly be a big step in shifting the frontiers of working poverty, it cannot continue unfettered. I thank you.
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