(Published - 2 April 2020)
The labour brokering industry has been a thorny issue in South Africa for years, with many, in particular the labour force, calling for a total ban. Others argue that the industry is critical for job creation.
UWC graduate Thabo Madiehe may have just found a solution. He argues that a big responsibility lies with the government to introduce innovative ways to regulate the labour broker industry to improve its trading mechanisms for the benefit of the employer, employee and the brokers themselves.
“The onus rests on the State to ensure that the regulation of labour brokering is fair and that it provides a balanced employment relationship in the tripartite employment situation,” he says.
Madiehe, a Human Resources General Manager for WNS Global Services, conducted a study titled Comparative Analysis of the Temporary Employment Services in South Africa, Particularly Labour Brokers for his MPhil in Law, which he graduated with on March 31, 2020. He says he is more interested in labour law, and especially in the alternative dispute mechanisms and the creation of well-balanced workplaces that create a conducive environment for both the employer and employee.
In his research, the father of three compared the related South African legislation to those of Namibia and the Netherlands. “In South Africa, a total ban on labour brokering could have negative consequences for the country, where a decline in labour market flexibility could see employers moving towards increased mechanisation and capital intensive production methods, at the expense of job creation,” he noted.
Madiehe, who hails from the Eastern Cape town of Matatiele, argues that South African legislation continues to struggle to establish comprehensive regulation of the labour brokering sector. “In practice, legislation lacks the rigidity to effect compliance by all the stakeholders. The legislation in place has not done enough to ensure that the practice safeguards the interests of the stakeholders. Although the Constitution and the Labour Relations Act acknowledge the practice of labour brokering in SA, legislative regulation of these practices remains too broad.”
According to Madiehe, South Africa could benefit from enacting legislation that will deal with issues related to labour brokers specifically. “Such legislation should create an association that will govern the industry and that will self-regulate labour brokers in conjunction with the Department of Labour”.
Among other things, he explains, the legislation should also provide for the registration of labour brokers who will need a licence to operate as per the requirements of Employment Services Act Draft Regulations 2018. “Given their controversial nature, it is not advisable to leave labour brokers to regulate themselves. The envisioned regulation should establish a regulatory body comprising government and all the stakeholders in the industry”.
Employment conditions are one of the contentious issues concerning labour brokering. Madiehe says the pay rates for part-time workers must be fair in relation to those of full-time workers, and the former must have access to training and development, thus ensuring no less-favourable treatment. “The recommended legislation must prevent labour brokers from charging workers any fees. The principle of equal pay for work of equal value must be actively enforced”.