The Persistence of Labour Broking: South Africa’s CCMA Falters on Worker Protection

The struggle for fair labor practices in South Africa's labor market continues to be a contentious issue, notably within the domain of labour broking. Despite the 2015 amendments to the Labour Relations Act (LRA) designed to enhance the rights of temporary workers, findings indicate that the practice of labour broking remains largely unchanged, contributing to persistent worker vulnerability.

The Department of Labour's intent to regulate labour broking began with research in 2003, culminating in a legislative compromise. The LRA amendments stipulated that workers provided by labour brokers became permanent employees of the client company after a three-month period, barring specific exceptions. This transition should afford employees the same benefits and terms as their permanently hired counterparts, per section 198A(5) of the LRA, theoretically protecting them from the exploitation inherent in precarious labor.

However, post-legislation, the legal arena became the battleground for interpreting "deemed" permanent employment – a contestation that usurped three valuable years due to nebulous drafting and the entrenched value of labour broking to South African industries as a source of inexpensive labor.

The Constitutional Court's ruling in the Numsa v Assign Services case of July 2018 should have been definitive in clarifying the status of workers as permanent employees after the three-month period. Yet, this clarity has not translated into practice. Labour broking firms continue to skirt the edges of legal compliance, aided and abetted by apparent inaction or complicity of various industrial relations mechanisms, including the Commission for Conciliation, Mediation & Arbitration (CCMA), bargaining councils, and the labour court.

Instances of non-compliance are not isolated to peripheral economic players but pervade through reputable, multinational companies with wide-ranging influence. The Casual Workers Advice Office has evidenced protracted disputes with notable firms like Heineken SA, Simba, and Takealot concerning the conditions of deemed employees.

The legal battles didn't cease with the Constitutional Court's ruling; rather, they morphed into a series of preliminary legal challenges – in limine arguments – which effectively delay or derail proceedings at the CCMA or bargaining councils. Administrative hurdles, such as the necessity for condoning late applications, exacerbate the difficulties workers face when claiming rightful employment terms.

Furthermore, a troubling trend has emerged wherein CCMA commissioners confer deemed employee status without granting equal compensation and benefits. This discrepancy defies section 198A(5) of the LRA and leaves employees in a lurch, having to navigate alternative legal pathways that are complex, time-consuming, and often insufficient in addressing the full gamut of employment disparities.

The advice for workers denied relief and equal footing is convoluted, involving claims through the Employment Equity Act, unfair labor practice disputes, or the option of mutual interest disputes leading to strike action – an ironic twist, given the CCMA’s original purpose was to reduce strikes in favor of cooperation and industrial peace.

The fundamental question arises as to why vulnerable workers are expected to navigate an additional labyrinth of legal procedures to claim what the Constitutional Court has already mandated. The situation beckons scrutiny regarding whether commissioners are neglecting the legal doctrine of stare decisis – the obligation to follow higher court precedent.

The consequences of continued labour broking and the resultant “super-exploitation” are best exemplified by the 2011 South African Post Office scenario where a significant percentage of the workforce comprised labour broker employees, precipitating a violent breakdown in industrial relations and contributing to the organization’s ongoing difficulties.

Not only does this call into question the commitment of agencies like the CCMA to their foundational philosophy, but it also signals a loss of direction in simplifying and resolving disputes in a manner conducive to social justice. In essence, until the prevailing legal framework and enforcement align effectively, labour broking will continue to loom over South African labour markets, and vulnerable workers will endure the inequities of precarious employment.