In an unequal society, and especially one suffering an economic crisis, the sellers of labour will always be disadvantaged. That is the simple reality of the system in which we live.
Another reality is that employers, with their eyes firmly fixed on the bottom line and determined to maintain profits, dividends and bonuses, will fight to increase the advantages they already have. And one of the areas that reduces employer advantage is labour laws that endeavour to create a fairer working environment.
So it was wholly predictable that there would be an outcry about the amendments, especially to the Labour Relations Act (LRA) that came into force this week. Significantly, the trade unions were not exactly expressing glee. Like some less ideologically orientated employers, they warily welcomed the new rules.
These amendments have been four years in the making, following what the labour department refers to as “often robust debate”. The result was the usual compromise between the demands of labour and those of the employers.
So it was unsurprising that the Democratic Alliance, backed by several employer bodies, called for the finally agreed draft not to be signed into law. At the same time, the unions noted that while the new Act sought to protect vulnerable workers, the problem would be with enforcement.
This has been the problem since the LRA was first promulgated in 1995. And, with increasing unemployment and greater economic pressures, it has grown worse.
In a minority of cases and within parts of some industries, employers have been discovered who wholly ignored the labour laws, capitalising on the desperation of workers. Another apparently politically well connected minority with deep pockets and a willingness to litigate, has also been able to ignore, with impunity, the plight of unpaid former employees.
A classic case is the Aurora mine where workers were simply deserted more than four years ago. This week the National Union of Mineworkers stated: “Workers at Aurora are still struggling and living in extreme poverty.”
But the main problem in the working environment is the growth of non-standard labour, of men and women employed on a casual basis or on contract. This “casualisation” of the workforce is one means employers use to cut costs, since such workers are deemed to be self employed and they have to make their own arrangements regarding pensions, provident funds and medical aid.
In a survey published this week, the Trade Union Congress in Britain revealed that the pay of contract workers — classified as self-employed — was on average now less than half that of employees. Unions maintain that the same “race to the bottom” in wages applies with casualisation in South Africa.
And, until the amendments this week, “non-standard” workers were excluded from the Commission for Conciliation Mediation and Arbitration (CCMA) process. This process was established to provide a non-intimidatory and free means for labour disputes between worker and boss to be resolved either by conciliation or arbitration.
But any employer, perhaps feeling vindictive and having the financial resources, could reject a CCMA arbitration finding for the employee and take the case on review to the labour court. This could drag the matter out for months or even years.
As I have mentioned before, even the CCMA process is now badly undermined by a high court ruling in September last year that allowed lawyers, by right, to appear at the CCMA. This can introduce and element of what has been termed legal thuggery in that most workers, confronted by slick lawyers with bulging briefcases, will readily be intimidated.
I have written and heard about cases where workers felt so intimidated that they simply dropped their complaints. But until very recently, I did not fully understand the manner and extent of the intimidation. Now I do, because I have gone through the process, perhaps unfortunately before the latest amendments came into play.
These extend protection to workers such as me who had been contracted on an annual basis for 17 years to undertake work for one employer. But I was judged not to be an employee, so although it was held that I had been subject to unfair labour practice, had been treated shabbily and with “callous disregard” my only redress was through the generally costly court process.
So while I am grateful for the experience, I am even more grateful that protection has been extended to workers more vulnerable than me.
Main Pic: By Madelene Cringe