The much-lauded Constitutional Court judgment on labour brokers will not affect the notorious “bakkie brigade” – those independent labour traffickers who hire out teams of workers picked up from roadsides around the country.
The judgment ruled that any workers hired out to a client for more than three months must become the employee of the client company, with full pay and benefits.
This will not stop the bakkie brigade contracting for jobs and recruiting casual labourers at minimal rates of pay. Nor, for that matter, will the judgment much alter the reality for most low-paid casual workers employed through established brokers.
Only a minority are now hired out to single employers for the crucial three months.
But brokers make their profits from a percentage of hired workers’ wages, so they will be keen to maintain this relationship.
To do so they may simply rotate workers, especially those with required levels of skill, moving them from company to company in under the three-month limit.
This could be deemed a deliberate attempt to circumvent the law and would, therefore, be illegal. But it would first have to be identified, investigated and the perpetrators brought to book.
The same would apply to the misuse of fixed-term contracts that are legally allowed.
Once again, these would have to be challenged and prosecuted, holding out the prospect of lengthy and costly court actions – the battle that ended in the Constitutional Court victory began in 2015.
A major problem is the fact that the grossly understaffed labour department inspectorate is unable to police frequent and ongoing breaches of labour law.
Trade unions also lack the reach to police most breaches.
Fewer than 25% of workers in formal employment are union members and few “brokered” workers are unionised.
However, the court judgment is still an important legal milestone as it ends, in law and in principle, double exploitation over protracted periods for workers earning less than R205 433 a year.
It is the thin end of a wedge against this form of trafficking.
The major result should be that brokers will cease being constant intermediaries, profiting, sometimes for many years, from the labour provided to and paid for by a client company.
The near 2% slide in the share price of Adcorp, the country’s largest labour broker, was probably a result of shareholders realising this.
However, little is likely to change in the operations or profitability of this company and others, given the ongoing need for casual labour and the huge oversupply of unskilled and semiskilled workers.
There is also no requirement for labour brokers to employ staff who are not placed in jobs.
Workers can be “on the books” and summoned when a client needs labour.
This is, effectively, a “zero hours” situation, where workers are on call, but not knowing when or for how long they will be working.
At the same time, the unions acknowledge that there is always a need for short-term, casual and seasonal work – the agricultural sector being a prime example. Here too labour brokers are active, although mainly in providing skilled teams for work such as sheep shearing.
Yet there is an alternative to the often highly profitable exploitation involved in selling the labour of others. Labour exchanges, operated on a non-profit basis either by government – as in countries such as Britain or New Zealand – or by the unions are one such alternative.
In this regard, the virtually moribund SA Domestic Services and Allied Workers’ Union could have set up a collective “maids for hire” operation.
The demand exists and is now filled by several labour-broking companies.* Sign up to Fin24's top news in your inbox: SUBSCRIBE TO FIN24 NEWSLETTER