4 April 2009 by

Protection for ‘vulnerable’ workers or the makings of increased unemployment?

While unemployment figures have reportedly decreased from 31% in 2003 to 23% in 2007, unemployment remains a significant challenge. This issue features high in the agendas of many, not the least, a number of political parties. For instance, in its 2009 Manifesto, the ANC commits itself not only to ensuring more jobs, but better quality jobs. Ironically, proposed amendments to current employment legislation may have the unintended consequence of increasing levels of unemployment.

The Manifesto indicates an intention to introduce laws regulating contract work, subcontracting and out-sourcing, addressing problems associated with labour broking and prohibiting certain abusive practices. The unionisation of workers is also to be facilitated. The stated aim is to avoid exploitation of workers and ensure decent work for all workers.

Certain employers are known to contract with employees for fixed periods, despite the permanent nature of the role which the employees have been appointed to fulfil. An increasing number of employers are further securing employees through labour brokers or temporary employment services. This may be due to the employers' intention to avoid having to themselves comply with employment legislation (and passing that risk to the labour broker, where a labour broker is employed).

However, the employees are still afforded protection under inter alia the Labour Relations Act, 1995 (the LRA) and the Basic Conditions of Employment Act, 1997 (the BCEA). An employee employed on the basis of a fixed term contract which is repeatedly renewed may have a valid claim for an unfair dismissal in terms of the LRA if the employee reasonably expected the employer to renew the contract on the same terms and the employer failed to do so.

An employee employed by a temporary employment service can hold the temporary employment service and the firm in relation to which it performs the services jointly and severally liable for a contravention the BCEA or a collective agreement.

There are reportedly 500 000 non-unionised workers employed by labour brokers. Some may view the proposed introduction of legislation to facilitate unionisation of these employees as a way to better equip these employees to pursue and enforce their rights in terms of the current legislation.

A concern that is possibly not addressed in the existing labour legislation, is that many workers employed by a temporary employment service are unskilled or semi-skilled and their ability to advance and improve their skills (and in this way secure better quality work) may be impeded. An individual employed via a temporary employment service may not be regarded as a worker worth investing extensive training and development in. Lack of training may in turn result in these workers not being considered eligible for positions which would amount to a promotion.

The current global economic crisis renders the job security of many employees tenuous. It is hoped that the proposed amendments designed to improve quality of work do not give rise to increased unemployment with employers being wary of making use of temporary employment services in the future.

Gillian Lumb, Director
Regional Practice Head: Employment

Adelaide Davids, Associate, Employment

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