Labour Only Contracting and Labour Broking

There is a tendency on the part of Trade Unions to confuse labour only contracting and labour broking, particularly in the Construction Sector. Trade Unions do not like labour only contracting or labour broking operations as these are difficult to organise and consequently diminishes their influence.

COSATU and its affiliates at the ANC Policy Conference held at Polokwane a few years ago, agitated for an outright ban of labour broking and achieved getting a tough resolution passed in this regard. Thereafter they succeeded in winning the support of influential Politicians such the Minister of Labour, Membathisi Mdladlana and Lumka Yengeni, the outspoken Chairperson of the influential Labour Portfolio Committee of the National Assembly of Parliament.

A period followed during which strident and emotional language was used by the anti-labour broking lobby. It was claimed labour broking was akin to slavery and oppression, and could be compared to the `running of a brothel`. It was further stated that labour broking was an `evil industry’ and discriminatory. It is estimated that there are more than 6 000 recruitment centres nationwide; the activity has experienced rapid growth. Valued at R26bn it employs about 500 000 people annually. The pro-labour broking lobby argued that banning it would simply drive it underground and a better approach was to formulate and implement appropriate regulation to eliminate abuse by unscrupulous operators.

The Minister was obviously bolstered by developments in neighboring Namibia where that Government placed a total ban on labour broking activities. He then announced his intention to ban all labour broking activities without perhaps realising the extent of its use by Government Departments. It became an exercise of Government being hoisted with its own petard. Certain Departments such as Water and Environmental Affairs, Agriculture, Public Service and Administration, Social Development, Health, Transport, Communication and Finance all used labour brokers to complement their permanent staff.

There were however new developments in Namibia where the total ban on labour broking was challenged in their Courts. The Namibian Supreme Court found the ban unconstitutional as the Constitution of Namibia guaranteed all persons the right to practice any profession, or carry on any occupation, trade or business. The Court also found that in the light of the International Labour Organisation’s (ILO) Private Employment Agencies Convention which recognises regulated labour broking rather than an outright ban was an acceptable labour practice but one that warranted regulation.

The Namibian Supreme Court also said temporary workers presented a challenge for Trade Unions, but `these shifts in the employment market cannot be arrested to preserve the most favoured model for Union organisation. 

Subsequently, there has been a softening in the attitude of the Politicians serving on the Labour Portfolio Committee of the National Assembly realising that the banning and criminalising of labour broking could lead to protracted and expensive legal challenges on constitutional grounds. As a member State of the ILO,South Africa is required to adopt and comply with ILO Conventions. In addition, the South African Constitution also guarantees freedom of trade, occupation and profession which may be regulated by law.

Interestingly, some Trade Union Federations such as FEDUSA welcomed the less radical approach. The Communications Workers Union(CWU), an affiliate of COSATU, however accused Yengeni of selling out and implied a threat of reverting to industrial action if labour broking is not banned.

It is predicted that the subject of labour broking is likely to remain a contentious issue for some time to come.

Pieter Rautenbach