The legal framework for the protection of employees of labour brokers in South Africa

Abstract

Current South African legislation allows the use of temporary employment services ("labour brokers" in common parlance). Labour broking involves a triangular employment relationship between client, labour broker and worker. In terms of this arrangement the labour broker would employ a worker and supply him/her to a client, who then supervises and controls the worker. Even though the client supervises and controls the worker, the labour broker would remain the employer and be responsible for paying the worker. In South Africa, the use of labour brokers has increased exponentially, because it provides employers with an opportunity to circumvent the onerous provisions of constitutional, international and statutory law that seek to protect workers. In 2010, the Parliamentary Portfolio Committee on Labour identified a number of bad and abusive practices being perpetrated against labour broker employees and recommended that the Department of Labour review all labour legislation. In July 2009 the Department of Labour had in fact already submitted its recommendations for statutory amendments to the NEDLAC for discussion. Although it can be ascertained with relative certainty that South Africa's labour legislation will be amended, it is still not clear what form the amendments will take on. Whilst the ANC prefers a regulatory solution, COSATU maintains its call for a complete ban of labour broking. The thesis firstly determines why the bad and abusive practices are occurring and identifies a number of areas of insufficient or ineffective regulation (referred to as "loopholes" in common parlance) that allow the abuse of labour broker employees. Secondly, the thesis examines the debate around either prohibition or regulation being the most suitable option for curbing the bad and abusive practices. Thirdly, the thesis explores the DOL's recommendations and foreign examples of regulation. Finally, the thesis critiques the DOL's recommendations and suggests ways in which they could be amended or supplemented to effectively close the loopholes in current regulation and provide practical legal solutions for the protection of labour broker employees in South Africa, whilst maintaining a balance between labour broker employees' need for protection and employers' need for labour market flexibility.