Department changes its tune on broking
March 10, 2010
By Donwald Pressly
The Labour Department appears to have done an about-turn on labour broking. People who ran such businesses by computer "in car boots" would be cracked down upon, but the rest of the industry would simply be regulated appropriately, Labour Minister Membathisi Mdladlana said yesterday.
He was cross-questioned by national assembly labour portfolio committee chairperson and ANC MP Lumka Yengeni - who has long supported an outright ban on the industry - after he indicated that policing the rest of the industry was a better route, but acknowledged that he was not sure exactly how this would be done. That would require further discussion, he suggested.
"Let us talk about the professional ones... but with the bad ones, we need to do away with the milking cows," the minister said. He explained that the latter were those people who ran unprofessional and unaccountable labour broking businesses from "a computer in the car" or from "car boots".
In the audience was Cosatu general secretary Zwelinzima Vavi, who indicated that he was "just listening" to the debate and would not be contributing to the discussion.
Vavi's presence at the meeting apparently follows a flurry of behind-the-scenes lobbying by labour brokers, who have convinced Cosatu that the industry is key to providing jobs for tens of thousands of people.
Labour Department director-general Jimmy Manyi has already reported to the committee that changes will be made to legislation that affects labour broking, including the Labour Relations Act and the Basic Conditions of Employment Act.
Apparently, the law will in future ensure that the broker and the client company, whether a mine, a manufacturing concern or a farm, will be co-responsible for ensuring that workers are protected in terms of the basic conditions of employment and the principle of equal pay for equal work.
ANC MPs appeared to agree with DA MP Ian Ollis, who said that all labour brokers should be required to register with a labour broking registry and appropriate rules should govern the industry.
He underscored that his party also opposed fly-by-night labour broking by giving an example of a father of a friend who had been a plumber for many years "on the mines".
He said this man had been retrenched, but had regained employment via a labour broker. "He earns R8 000 a month, but all his colleagues earn R12 000 for the same job," he told nodding ANC MPs.
A number of ANC MPs said it was important to ensure that workers of all kinds, including those who were employed by labour brokers, were able to join labour unions and received equal pay as permanent workers for the services they rendered. There also needed to be mechanisms in place to ensure that the brokers paid the required Unemployment Insurance Fund payments, medical payments and other benefits.
This was hinted at in the Economic Development Department's recent strategic plan. It said government would introduce laws to regulate contract work, sub-contracting and outsourcing, while addressing the problem of labour broking and prohibiting certain abusive practices.
Mdladlana noted that he had studied the Namibian Supreme Court ruling on labour broking, although he did not indicate that it was instructive for South Africa.
That court, in the case of Africa Personnel Services vs the government of Namibia and others, ruled that a ban - imposed by the legislature - unreasonably restricted the constitutional right to carry on a trade or business.
The South African constitution also protects the right to carry on a trade or business and a ban imposed by Parliament could be subject to a similar challenge from a labour broker.
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