Charity Begins In The State

Labour Brokers
During the past few months we have all witnessed the vitriolic debate about the existence and operation of labour brokers. The matter is now with NEDLAC and the outcome is highly uncertain. The arguments are basically whether to be or not to be, to quote you know who. Some of the parties want better regulation but not a total ban on this industry to avoid forcing millions of people into the ranks of the South African unemployed.On the other hand, politicians mostly, according to press reports, want a total ban on the industry. That is typical of an unconsidered, simplistic solution; how to avoid motor accidents, ban all motor vehicles. Our Labour Minister in a press release dated 5 August 2009 wanted to please the left but was not sure what the future was so he employed the typical emotional jargon for which the Department of Labour is famous. You don’t believe me?  Then judge for your good selves.  “Mdladlana described labour broking (sic) as a form of human trafficking”. Also according to the Minister it is extreme form of free market capitalism which reduces workers to commodities that can be traded for profit as if they were meat or vegetables”.  I wonder who is responsible for drafting this nonsense?  Others like the SACP/Cosatu wanted a total ban on labour brokers.  The fact that this industry at least provides the opportunity for millions of people to receive some kind of remuneration appears not to be a consideration to the ruling classes. The dogma is that we must be politically correct whether or not w can afford it and whether or not it means we lose our jobs. The unwanted baby must go with the bath water come hell or high water. Has anybody bothered to ask the masses what they want?  I seriously doubt that. This political rhetoric will, if it prevails, result in further hardship for the worker who wants food on the table.

I have now said enough of the politicians and other ignoramuses, let us now turn to the Compensation Act.

It is interesting that, whatever the flaws in our labour legislation pertaining to labour brokers might be; the COID Act has technically speaking no shortcoming in this regard.  Let me quote the definition of an “employer” in section 1 of that Act:

  1. “employer” means any person, including the State, who employs an  employee, and includes-

    1. any person controlling the business of an employer;
    2. if the services of an employee are lent or let or temporarily made available to some other person by his employer, such employer for such period as the employee works for that other person;
    3. a labour broker who against payment provides a person to a client for the rendering of a service or the performance of work , and for which service or work such person is paid by the labour broker; (xliv)

Even the minister recognised the fact that it is the only Act that caters for labour brokers as employers. On 23 May 2009 he said the following to the media:
“Regarding the legislation, Mdladlana said the only place he had found a definition of “employer” was in the Compensation for Occupational Injuries and Diseases Act.”

The implication is that a labour broker is deemed to be the employer in terms of the of the COID Act until proven otherwise; meaning that if the labour broker acted as the recruiting agent and the employer subsequently enters into a common law contract of service the labour broker cannot be the employer. It is, however, irrelevant who the employer is as the right to compensation is vested in the injured employee and it is for the State to determine who should have reported the accident or disease.

Duty of the State
Seeing that the state and by name the Department of Labour is apparently concerned about the status and the well being of the workers, let us ask ourselves what they are doing to protect these rights of the employee, concentrating on workers’ compensation. I have read somewhere that the inspectorates of the said department are not what one would call very efficient. Do they conduct inspections to try and ascertain whether all accidents are reported on the prescribed forms as was the practice in the past? What kind of monitoring of the procedures between labour brokers and their clients regarding reporting of claims are in place?  I was personally involved in such operations towards the end of the 1980’s and discovered many transgressions.

Sadly you can promulgate the best legislation in the world but unless you enforce and police it you are wasting time and money. So to all the trade unionists asking for a total ban on labour brokers and all of you who ask for a review such as the one the Minister has suggested, a word of advice, weigh up what you’re hoping to achieve with what is likely to happen and decide whether the risk of increased joblessness is worth the pursuit of the ideal. I doubt that you have the resources to enforce what you’re embarking on or to deal with the repercussions in unemployment and poverty.

Till next month