Inside Labour: Labour law advances despite the infighting

2015-04-21 12:20

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News on the labour front over the recent past – and the past week – has involved ongoing infighting, death threats, an assassination and the petrol-bombing of a union president’s house. Little wonder then that an important labour law development has gone largely unnoticed.

The “three-month rule” regarding temporary or “casual” employment is now in force. This adds further protection against the possible abuse of “lower-paid employees”. Lower paid is defined as anyone earning less than R205?433 a year (R17?119 a month), well above what more than half the working population earns.

It is certainly more than the money paid by the Economic Freedom Fighters (EFF) to its now retrenched party workers, a number of whom are taking their cases to the Commission for Conciliation Mediation and Arbitration (CCMA). The party maintains they were “volunteers” or “deployees” and, as such, do not qualify as employees.

These cases were flagged last week in City Press, and several of the former party workers claimed to have signed employment contracts and said Unemployment Insurance Fund payments had been deducted from their pay but not paid over to the labour department. But all such workers did not apparently have contracts.

However, although every employee should ensure that he or she has a contract of employment before starting work, this is not the sole determinant of employment.

Even the existence of a contract that defines a low-paid, long-serving worker as an “independent contractor” – a common ploy to “casualise” labour – does not necessarily mean the person is not an employee.

In a case currently before the CCMA, an isiXhosa-speaking worker, after having been in the job for 12 years, was given a multipage legal contract to sign that defined him as an independent contractor.

The contract was not translated, and he was merely told to initial each page and sign, something he says he thought was merely another condition of his work. Six years later, he was given one month’s notice and dismissed.

Even at the SA Post Office, as the postal unions have pointed out, there have been workers who have laboured on a casual basis for as long as 10 years. Under new law, this now becomes illegal, although the problem – as always – will be with enforcement.

This is an ongoing problem, blamed by the unions on a shortage of labour inspectors. But the unions are also at fault for not identifying and highlighting breaches of the law.

As it stands, the existing legislation regarding temporary employment services – “labour brokers” – still applies. This is that the workers supplied on a temporary basis to another employer are the employees of the provider of the labour. As such, they qualify for the same pay and conditions as any other employee.

And despite the inevitable grumbling from the business sector, both the former law and the new amendments accept the need for temporary employment wherever this is justified. A classic example is seasonal work. The object is clearly to provide added protection to vulnerable workers while accepting the reality of casual labour.

However, there is not the same sort of clarity about workers regarded as volunteers – and there are many of them, especially in the nongovernmental sector.

The EFF cases should help to clarify the law or possibly close up a potential loophole regarding the position of claimed volunteer workers or, in the case of political parties, “deployees”.

The three EFF members of Parliament who were recently expelled from the party are also taking their case to court in an attempt to regain their seats. But this, despite claims to the contrary, is not a labour dispute.

The argument of the dismissed MPs will almost certainly hinge on the EFF’s constitution. What might prove decisive in that case is where it states that “the individual is subordinate to the organisation, the minority is subordinate to the majority, the lower level is subordinate to the higher level, and the entire EFF is subordinate to the Central Command Team” that ordered the dismissal.

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