The issue with regard to labour broking was hotly debated right throughout 2009. We suspect that the proposed changes to the legislation will take place during the course of 2010 and these changes will include greater responsibility for both the labour broker and their client when it comes to the implementation of the labour legislation.
The debate with regard to labour hire is emotive and reminiscent of the obnoxious practices of apartheid. This debate became extremely heated when Namibia introduced Clause 128 of the Labour Bill which sought to regulate employment hire. Even in Namibia this sparked fierce opposition, condemnation and heated debates. The labour brokers were accused of being slave traders and this reminded many Namibians of the time when human beings were being bought and sold.
In a seminal judgement the Supreme Court in Namibia in the matter between Africa Personal Services (Pty) Ltd and the Government of Namibia the appeal judges rook into account the painful memories and looked at the modern economy. This excellent judgement which only came out at the end of 2009 appears to be setting the scene for the future of labour broking in the whole of Southern Africa.
The historical framework of racist practices and policies, as outlined in the judgment show why labour hire evoked such an emotional response. Clause 128 of the Labour Bill prohibiting labour hire was an answer to the shameful history of apartheid. However, the judges had to look to the present and to the future.
In the 1980’s and the 1990’s the world of labour and the recruitment industry was evolving. There had to be alternatives to permanent placements and as one of the alternatives the recruitment agencies offered their clients short or long term placements. The temporary employment services industry evolved into a form of indirect employment relationship in which the agency that supplied its employees to work at a workplace controlled by a third party in return for a fee from the client. It is argued that this is conducive to economic growth but many argue that it is not conducive to fair treatment of the labour force. However, the judges of the Supreme Court of Namibia on appeal stated “given the evolution of employment relationships from classical to modern times and the rapid changes in recent decades as a result of globalisation, industrial innovations, information technology developments, instant global telecommunications, we must point out that contracts for the letting and hiring of services have not remained static but continuously evolved in scope and application to address continuously emerging challenges presented by the socio economic changes at the work place over more than two thousand years”.
It is quite clear that because of the modern economy the non standard employment relationships have almost become the norm. These atypical relationships “strike the right balance between flexibility and security”.
Obviously this flexibility to the employment relationship does sometimes lead to exploitation and does sometimes lead to the undermining of minimum standards. In essence it is up to the legislature to ensure that the set minimum standards are in place and that no exploitation takes place. We certainly have to ensure that freedom of contract is indispensable as read with the minimum standards of employment.
We in South Africa need to ensure that our constitution is both respected and implemented in every sphere. In the employment arena we need to ensure that individuals retain their human dignity but at the same time have a right and the freedom to practice any profession, occupation, trade or business. Although the debate with regard to labour broking has been interesting and heated, it has been useful to highlight the fact that employees, no matter how they are employed, have fundamental rights and freedom.
The labour broking industry is set to grow and certainly will enhance opportunities in the future. All of us must always understand that the labour legislation is not only about redressing bargaining imbalances between employers and employees but is also there to ensure that social justice is brought to the workplace.
This social justice is meaningless if the laws only exist on paper but are not properly implemented. We all know that the devil is in the detail and that the laws need to be monitored and that inspectorate needs to be fully trained and available. The implementation of the law will ensure that these atypical work relationships do not diminish the freedom of workers and their rights.
MICHAEL BAGRAIM BA. LLB.
BAGRAIMS ATTORNEYS (LABOUR LAWYERS)