02 October 2009

THE CHALLENGE 

A "labour broker" or "temporary employment service" is any person who, for reward, procures for or provides to a client other persons who render services to or perform work for the client, and are remunerated by the temporary employment service. 

In terms of the Labour Relations Act of 1995 and the Basic Conditions of Employment Act of 1997, the temporary employment service - rather than the client - is the employer, except if the person procured is an independent contractor. 

In the event of a contravention of the Basic Conditions of Employment Act or a determination in terms of the Wage Act, the temporary employment service and the client are jointly and severally liable. 

This provision must be properly implemented and regulated to ensure that the employee has recourse to expect redress from the client as well as from the service. But regulation of the labour broker industry has been seriously lacking, exposing employees to such indignities as sub-minimum wages, dismissal without due procedure and even physical harm. 

Some temporary employment services operate outside of the law, placing illegal immigrants and evading tax. Employees often have no access to trade union officials. In some cases, agencies flout training and occupational safety regulations, and temporary workers are injured and even die doing the work of an absent trained employee. 

However, the IFP recognizes that temporary workers are needed for South Africa's optimal economic performance, because output demands in various industries fluctuate and employment levels are necessarily changeable. In fact, the IFP has always advocated greater flexibility in the labour market. 

A temporary employment service can recruit workers across sectors, ensuring greater continuity of employment. COSATU argues that the worker becomes progressively deskilled, but it could be argued that a multiplicity of jobs actually increases the skills and experience of a worker. 

COSATU also argues that by providing "scab labour" to do the work of workers who are on strike, the right to embark on industrial action is undermined. However, this is not a logical argument as the workers right to strike is not infringed upon. 

Of utmost importance is the necessity to ensure that employees hired through brokers enjoy the same rights and protections as those hired directly by employers. The agency is a recruiter; although they become an "employer" as defined in the labour law. The client should not be allowed to abdicate their responsibilities regarding leave administration, payroll etc to the recruiter. 

In addition, no worker in any industry should be compelled to go through a labour broker to apply for employment. 

The IFP does not believe that labour brokers should be banned completely, but recognizes the urgent need for greater and more effective regulation of the service. There must be a legal avenue to halt the operation of labour brokers who consistently operate outside the law, and to fine or even impose imprisonment on those who contravene legal labour practices.

RECOMMENDATIONS 

The IFP therefore recommends that - 

(a) The valuable role of temporary workers in South Africa's economy be recognized and facilitated; 

(b) Temporary employment services be properly regulated, inclusive of the need to register with the Department of Labour, sign a Code of Conduct and provide regular reports to the Department which may be audited; 

(c) Those temporary employment services found to be in contravention of labour legislation be liable for a fine and/or become de-registered and prohibited from operating; 

(d) Clients receiving the benefit of the temporary employee be held accountable in the strictest terms for protecting the rights of those employees; 

(e) A client assumes all the responsibilities of an employer in relation to the temporary employee in the event of a client terminating the services of the labour broker during the period of the temporary employee's service; 

(f) The client and the temporary employment service be equally obligated to meet the requirements of the labour law in respect of temporary employees; 

(g) Temporary employment services be held responsible for making a union official available at all times to its employees and for ensuring the continued union membership of its employees; and 

(h) Temporary employment services be required by law to conduct occupation specific training in terms of health and safety regulations to employees who will perform dangerous, life-threatening or specialized work. Proof of such training must form part of the regular reports submitted to the Department.