The Context of Casual Workers' Advice Office
Internationally ‘labour flexibility’ has been the philosophy guiding state and employer reform of labour markets over the past 20 to 30 years, ostensibly in response to intensified competition caused by globalization. Employers have completely reorganized the employment relation by increasingly using more and more contract or casual labour. In some instances such labour is directly employed, in others it is supplied by temporary employment services, or labour brokers. So dramatic is this reorganization of the employment relation that in at least 29% of cases at the CCMA involving labour brokers, workers do not know who their employer is. The overall effect of this change in the employment relation has been to dramatically weaken all workers and the trade unions, opening workers up to extreme exploitation in the process. Trade unions globally are struggling to come to terms with this new terrain of organizing, with both the traditional worker and traditional workplace having been radically transformed.
In the South African context economic sectors historically associated with temporary and casual work, such as Retail, Hospitality and Construction, casualised or informal work have come to dominate, to the point where such work is now the norm. It is no longer possible to talk about such work as ‘atypical’ in these sectors. Permanent employment in these sectors is now atypical. But casualised, fixed contract and labour broker workers are now widespread throughout the economy, and increasingly make up the majority or a large minority of individual workplaces across economic sectors. Between 2000 and 2011, the economy shed 21 % of permanent jobs.
In that same period, there was a 64% increase in temporary employment. Adcorp, the country’s largest labour broker, estimates that there are 976 418 labour broker workers covered by bargaining councils alone. This is a very high number, considering that bargaining councils, firstly, cover a relatively small number of workers. A study by the University of Cape Town (UCT) estimates that the number of workers covered by bargaining councils has dropped from 19.8% to 11.8%. The total number of labour broker workers across the economy is estimated to be much, much higher. A different UCT study conservatively estimates that there are in excess of 3000 firms operating in the formal economy alone, with potentially as many as 9000 operating in what it refers to as the informal economy.
Secondly, bargaining councils represent relatively highly organized sectors, with relatively strong, established trade unions in them. Yet, these unions seem unable or unwilling to stem the growing move towards temporary work. As the UCT study into labour broking notes:
“The metal and engineering industry has South Africa’s largest and best resourced union…it does not appear the union has been effective in organizing workers placed by labour brokers. In general, it appears that the larger, established unions are at best ambivalent about the organizing of workers placed by TESs…”
TESs refer to temporary employment services, also known as labour brokers.
Women & ‘Undocumented’ Workers
Women and ‘undocumented migrants’ (for want purely of a better term) respectively make up the majority and large minorities of precarious workers. Overall, casual, fixed contract and labour broker workers have no job security, are generally paid lower wages than permanent workers doing similar work, in some instances by as much as 50%, have no work benefits such as provident fund or medical aid membership, and are generally concentrated around dangerous, dirty or demeaning jobs. They work unsociable hours, which puts enormous stress on women in particular, expected as they are to continue playing their roles of organisers of households, and opens them up to sexual assault on their way to and from work. At work, women’s ability to get a job is often dependent on their willingness to tolerate sexual harassment by those charged with employing. Undocumented workers find themselves particularly vulnerable to extreme exploitation, with employers consciously employing them in the knowledge that they are least likely to resort to legal protection to enforce their rights because of their own ‘illegal’ status.
The effect of the presence of a large number of such workers in the workplace is at once also to drive down the wages and conditions of employment of the permanent workers and there too create employment insecurity. This has often given rise to an overt hostility towards the precarious workers by the permanent workers. A divided factory floor further benefits employers, as it makes organizing very difficult.
State Policy and Legislative Frameworks
The post-1994 period has ushered in contradictory developments regarding worker rights. In line with the Bill of Rights, which asserts, among others, everyone’s right to fair labour practices, the new democratic government introduced a raft of labour laws. These laws codified many of the rights demanded by the trade union movement in the course of the anti-Apartheid struggle. Primary among these laws were the new Labour Relations Act of 1995, which set out a new labour relations framework, and the Basic Conditions of Employment Act of 1996, which set a new floor of rights for all workers. Flowing out of the latter, the ANC government also introduced a number of sectoral determinations, in some cases for the first time setting minimum standards, including minimum wages, for vulnerable workers such as farm and domestic workers, and taxi drivers.
These two laws, together with a number of other new ones, amendments to existing ones and the establishment of minimum standards and wages for workers not historically protected in this way, such as taxi drivers, meant that a much larger number of workers were brought under the protection of labour regulating instruments than had been the case under Apartheid. Moreover, most of these rights were also extended to vulnerable workers such as casuals. In most cases, only workers working less than 24 hours per month were excluded from the legislation.
To this extent, the new government was realizing the rights inscribed within the country’s new Bill of Rights. However, like governments the world over, the new government placed greater labour flexibility at the centre of its labour market policy. This is reflected explicitly in the green papers which accompanied both the LRA and the BCEA. It is also explicitly stated in the Growth, Employment and Redistribution (GEAR) macro-economic policy of the government. No subsequent development on the macro-economic front suggests any change in this approach to labour market policy.
While the new legislation codified many of the historical demands of the labour movement it also introduced a number of measures which have seriously undermined many of the rights extended by the different labour laws. These have included limitations on the right to strike, no duty on employers to bargain, downward variation of the floor of rights established in the BCEA and, critically for current purposes, encouragement of more flexible forms of labour. The UCT labour broker study referred to above plots a steep rise in the practice of using labour broker workers coinciding exactly with the introduction of new labour legislation in the mid-1990s. Combined with very poor enforcement levels, these countervailing measures have resulted in a large section of employed workers being exposed to increased levels of exploitation and abuse. As the study notes: “It …seems incontestable that an important motive for the utilization of TES’s is the avoidance of labour legislation.”
The Response of Trade Unions
To date, the organized labour movement has shown little or no appetite to organize these difficult-to-organize workers. A survey of Cosatu revealed that 92% of the federation’s membership is made up of permanent workers, and that over 60% are white collar. The federation is moving in an opposite direction to its blue-collar roots. Such ‘precarious’ workers it has organized are being organized purely as a protection for its permanent members. In other words, there is as yet no indication that the established labour movement is willing to organize precarious workers and take the issues affecting them.
This is not to deny the inherent difficulty in organizing precarious workers, many of whom are effectively itinerant, moving from workplace to workplace, often across economic sectors. This makes it difficult for industrial unions to keep track of prospective members. In the Construction sector, the National Union of Mineworkers and the Building, Construction & Allied Workers Union have organized no more than 60 000 workers nationally, out of a total workforce of over 1 million workers, a union density of around 6%. Most of the organized are permanent workers working for the large civil engineering and construction companies. Yet, it is estimated that casual workers, many of them Mocambican and Zimbabwean, easily make up the majority of the Construction labour force.
The tasks involved of organizing precarious workers are huge. This is further reflected in the international paucity of experience in how best to organize these workers. Some argue that the industrial model of organizing workers is no longer appropriate. That model has as its starting point a permanent worker working, at best, in one workplace for the duration of his or her working life, at worst, in a handful of workplaces over time but in the same industry. This is not the case for a very large number of ‘new’ workers. There is therefore a need to discover new forms of organizing that better correspond with the changes in the workplace. What these new forms may look like can only be discovered with time and some practical testing out.
Notwithstanding the difficulties, casual, contract and labour broker workers are no minor aberration that will soon pass. Unless these workers are organized, able to forge unity with the permanent workers, and jointly able to resist their gross exploitation, precarious workers merely mirror the future of all of labour. The CWAO is committed to working with existing trade unions and supporting new initiatives in discovering the most appropriate forms of organisation to protect and advance the rights of precarious workers.