Regulate, not ban, is sensible path taken by others
November 3, 2009
By Dennis George
Outsourcing, sub-contracting and the use of labour brokers has severely undermined the quality of employment in South Africa. The growth of these practices of so-called non-standard employment has a particular resonance here, where the idea of standard employment was never well-grounded in the first place.
A study by the Department of Labour has revealed that the number and scope of operations of temporary employment agencies or labour brokers have grown rapidly since 1994. More than 500 000 placements are now made daily, and it is estimated that the temporary employment services (TES) industry employs 4 percent of the total workforce in a business that generates R23 billion a year.
Given these facts, it is little wonder that we in the labour movement have been demanding action to protect the rights and interests of workers. It is an ongoing battle and one that saw the Federation of Unions of SA (Fedusa) again raise the matter at our congress in November last year.
The ANC election manifesto this year also called for laws to be introduced to address the problems of temporary employment and to prohibit abusive labour practices while Cosatu's latest congress called for a total ban on the TES industry.
The DA and Cope have also weighed in with a position paper calling for the industry to be reformed. These debates are essential, but sight should also not be lost of the fact that South Africa is not the only country faced with the undermining of the quality of employment by employers and where struggles have been waged and steps taken to improve matters.
For example, the EU directive on temporary agency work, adopted in June last year, introduced the principle of equal treatment for agency workers from the first day of their assignment.
The European Trade Union Confederation welcomed the vote in the European Parliament because it ensured that social partners now have a major role to play in protecting agency workers.
This seems a sensible approach and one that Fedusa endorses. We feel that the TES industry should be strictly regulated by the social partners, by the government, business and organised labour.
Strict and closely monitored regulation can address most aspects of "decent" work and should ensure that unscrupulous brokers will be exposed and eventually be forced out of the industry. While we obviously have to adapt regulations to local conditions, there is no need for us to reinvent the wheel. There are a number of examples we can draw on.
The "ABU" Agreement in the Netherlands, for example, covers some 90 percent of TES workers, and provides a good model. Another fine example is the national level agreement concluded in Britain in May last year between the government, the Trade Union Council and the employer body, the Confederation of British Industry.
But Fedusa is also encouraging the government to ratify the International Labour Organisation (ILO) Convention 181, covering the TES industry. This convention, as with the other regulatory regimes mentioned, recognises the role employment agencies may play in a "well-functioning labour market" and the need "to protect workers against abuses".
To this end, Leon Grobler, Fedusa's representative at Nedlac, attended an ILO workshop in Geneva last week on the ratification of Convention 181.
Adoption by the government of this convention could be the first step towards a regulatory regime that could promote skills development and decent work for all while preventing human trafficking and other abusive practices.
The convention was drafted in 1997 and has now been ratified by 21 countries, ranging from Albania to Uruguay. Three African countries - Algeria, Ethiopia and Morocco - have so far adopted it, Ethiopia and Morocco having done so in 1999, with Algeria following suit in 2006.
Within the broad framework of the ILO convention, we must draw up our domestic regulations. We can do so either by national legislation supplemented by collective agreements or by a national framework agreement supplemented by sectoral or industry-wide agreements.
But no matter which route we choose, the real issue - as it is now with existing labour laws - will not be regulation alone, but enforcement. This must be two-fold, covering both administrative aspects such as registration and licensing, and conditions in the workplace, such as hours of work and period of placements.
Administrative regulation could be dealt with through a statutory and tripartite regulatory body along the lines of a university council of the governing body of the Commission for Conciliation, Mediation and Arbitration. Applying regulations within workplaces is more complex, but can be managed through a very broad legal framework supplemented by collective agreements between the social partners.
But we should be aware that most of the problems that we are currently dealing with were identified and comprehensively analysed in reports of the European Foundation for the Improvement of Living and Working Conditions (Eurofound), especially the report on "Temporary Agency Work and Collective Bargaining in the EU". This body was set up by the EU in 1975 in order to contribute to the planning and design of "better living and working conditions" in Europe.
Obviously, no European model can or should be imported into South Africa without proper consideration and adequate prior consultation with all affected parties. Quite apart from anything else, the countries of the EU tend to have far superior systems of social security and other state benefits, from which we could also probably learn.
However, the issues dealt with in the EU parallel those of our own regarding the TES industry and we would be remiss not to learn from the best practices already applied anywhere we find them.
Fedusa therefore feels it best to encourage improved efficiency in the national labour market while ensuring that abuses are removed and that decent pay and conditions should apply to every worker. On this basis, we think it is better to promote co-operation between public and private employment services in various fields - and we cannot afford to procrastinate.
Dennis George is the general secretary of the Federation of Unions of SA
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