The South African Federation of Trade Unions has noted with concern an allegation by Lawyers for Human Rights (LHR) that the Confederation of Associations in the Private Employment Sector (CAPES), representing the interests of labour brokers, is encouraging its members to disregard a key judgment of the Labour Appeal Court (LAC) in the case NUMSA v Assign Services and 3 Others, 10 July 2017, that precarious workers must be able to access the protections enacted for their benefit in the amended Labour Relations Act (LRA).
In doing so, says the LRH, CAPES is defying not only the will of the court, but also of Parliament, which in 2014, amended Section 198A of the LRA in order to clarify that employers must fulfil obligations to all workers, including those engaged through a labour broker.
The LAC confirmed that unless the work being performed is a genuine temporary service as defined (less than 3 months, or replacing an absent worker) a worker placed at a client company by a labour broker is deemed to be the client’s employee, and not the labour broker’s. This overturned a Labour Court judgment that held that the broker and the client were joint employers.
However, in a press release on 14 July 2017, CAPES reassured employers, that: “…too many people have read too much in the LAC judgment and have failed to appreciate the consequences of the pending appeal’, since CAPES is applying for leave to appeal to the Constitutional Court and they state as a fact, that the status quo remains, that this appeal suspends the LAC’s judgment, that ‘nothing will change’ and ‘it is business as usual”.
The ‘status quo’ they are referring to is one in which employers are unlawfully flouting the clear provisions of the amended LRA.
And LHR further argues that it is not automatically the case that an appeal to a higher court suspends the implementation of a judgement of a lower court. That judgement can still be implemented where it can be shown that there are ‘exceptional circumstances’ and it that ‘irreparable harm’ would be done by suspending a court judgement like this one by the LAC.
The ‘exceptional circumstance’ in this case is that if CAPES’ advice to its members is correct and the recent LAC judgment is suspended, it would mean that there is no valid judicial decision guiding the contested interpretation of section 198A of the LRA. Suspension during the appeal would affect all prior judgments, not just the recent LAC ruling. The only ruling that would be unaffected is a non-binding CCMA decision from years ago.
“These”, say the LHR, “are the ‘exceptional circumstances’ that should justify an order that the LAC decision not be suspended pending the ConCourt’s decision. In the absence of any binding authority regarding the proper interpretation of section 198A, every Commissioner and every Judge in South Africa would come to their own conclusion regarding the meaning of section 198A, resulting in a variety of different interpretations and conflicting decisions in the different employment law tribunals around the country.
“This chaos of conflicting interpretations would cause irreparable harm not only to employers and employees, but also to the administration of justice.
However, the ‘exceptional circumstances’ and ‘irreparable harm’ do not arise if the LAC decision is only partially suspended.
“If the LAC’s interpretation of section 198A is allowed to stand, there is no possibility of confusion. The ‘operation and execution’ – as it relates to the financial logistics of the two main parties (Assign and NUMSA) – may be suspended pending the decision of the Constitutional Court without causing chaos. This method of suspension would have the following effects:
a) Numsa members employed at Krost through Assign still have no final decision on whether they have two employers, or only one; but
b) CCMA Commissioners, bargaining council panellists and Labour Court judges are nevertheless bound by the LAC’s interpretation of section 198A in general: all other workers in South Africa who are deemed employees of their labour broker employers’ clients now have only one employer: the client.”
In other words the workers’ legal employer is the company for which they are actually working – the labour broker’s client – and not the labour broker itself.
The LHR will be writing to CAPES to demand that it retract its public statements inciting employers to flout the law. SAFTU fully supports this. but warns workers not to wait until the ConCourt ruling on the CAPES appeal but demand the immediate and full implementation of the LAC ruling.
All workers who are now faced with labour brokers and their client companies who refuse to implement the LAC ruling should immediately contact SAFTU or one of its affiliated unions to join a united struggle to force both sets of bosses to comply fully with the LAC judgement.
Victory however can never be guaranteed by the courts alone, but by the strength and determination of the workers. And this must not stop with the workers directly involved, who are still being exploited by labour brokers, being paid poverty wages and lacking any job security.
This fight affects all workers, who are indirectly affected by employers who, if they think they can get away with it, will try to cut wages and outsource jobs to labour brokers, which will lead to lower wages and fewer jobs in the country as a whole.
Solidarity action by all workers is therefore the only sure guarantee that labour broking will finally be outlawed, and that this human trafficking in workers ends completely. This struggle must be won by a militant struggle in the workplaces and on the streets by a united and powerful movement of the working class.
SAFTU stands ready to mobilize and lead this life-or-death battle.