Coming to grips with the changing nature of work

2008 Commissioners Indaba

19 – 21st November 2008Sun City, North West Province

Kimani NdunguNaledi

Rise of non-standard work in the post-apartheid workplace

The following push factors have contributed to the rise of non-standard work in SA :

Globalisation

Liberalisation

Privatisation

Employers have also “non-standardised” work in an attempt to circumvent labour legislation.

There is a perception among employers that the SA labour market is very rigid & inflexible, & that it protects the rights of workers extensively (dismissal and retrenchment procedures are said to be onerous)

Labour market segmentation: Inclusion and exclusion

Non-standardisation of work has led to the segmentation of the post-apartheid labour market creation of zones of of inclusion and exclusion (Webster and Von Holdt, 2005) and also a hierarchy of workers

1. Core zone Is the core workplace in the formal economy-Has most rights and

benefits for workers

2. None-core zone Workers are vulnerable and insecure. Very few if any trade union

rights, poor wages, no collective bargaining, no job security

3. Periphery zone Mainly the unemployed or informal subsistence activities

Standard vs Non-standard employment

Zone 1:

Standard employment (SE) likely to be found in this zone. SE has the following elements present:

Core labour rights (regulated working hours, rest, leave, OHS)

Social dialogue (right to associate, bargain and strike)

Social protection (pension/provident fund, unemployment insurance, medical aid)

Skills training may also take place for workers in this zone

Zone retains many features of the apartheid workplace including racial tension (Webster and von Holdt)

Non-standard employment

Zone 2:

Non-standard employment (NSE) characterises this zone. Two main forms of NSE:

Casualisation

Used in a generic way to describe all forms of non-standard employment

Employee still works for the main employer but the employment is not permanent, it’s not indefinite and it’s not full-time (e.g. fixed-term contracts, part-time contracts, etc)

On the date the contract ends, employment is terminated but there is no dismissal

Non-standard employment (cont)

Zone 2 (cont):

Externalisation

Employment contract is replaced by a commercial contract. i.e. employee becomes an independent contractor

Such employees are excluded from the protection of the BCEA & LRA

Types of externalisation:

Sub-contracting, labour only sub-contracting (prevalent in construction), out-sourcing, labour brokers (Temporary Employment Services-) (disguised employment), outworking/homeworking (found to a large extent in the clothing/textile sector)

Non-standard employment (cont)

Zone 3:

Informalisation

Employees working previously in regulated employment are pushed into unregulated employment (e.g. previously working in a mine but now running a spaza shop)

Non-standard employment: Maximising profitability

Drive for maximising profits has contributed substantially to the growth of non-standard employment (Zones 2 & 3)

Employers aim at maximising profits through:

Effecting savings on the cost of production Manuel Castells: The Rise of the Network Society: One way of increasing

profitability is to either increase production, or reduce labour costs. Employers have mostly employed the latter)

Ensuring greater flexibility in the labour force

Reducing the cost of labour relating to hiring and training of employees

Decreasing the costs of benefits associated with “formal employment” such as leave, medical aid & pension

The reality of non-standard jobs

Are “precarious, insecure and with long hours of work for lower remuneration in unsafe conditions (van der Westhuizen, 2003)

Non-standard workers “fall outside coverage of labour laws, social security legislation and collective bargaining agreements” (Clarke)

Such workers are unprotected and fall vulnerable to the whims and caprices of employers and the market

In externalisation (triangular employment), a ‘legal fiction’ has been created regarding the real employer. BCEA & LRA say the labour broker is the employer while in reality, it is the client. Effect is that such workers are denied many of their basic rights including the right to organise and associate (Bezuidenhout & Fakir, 2006)

Non-standard work has led to creation of “inclusion & exclusion”, “identify and belonging”, and a “hierarchy of workers” in the post-apartheid workplace

The problem with the law

SA labour law developed largely on the basis of the primary and secondary sectors. For many years, mining (primary) and manufacturing (secondary) were the engines of growth. These laws are insufficient to regulate employment relationships in a modern labour market with services (tertiary) as the driver of growth

Chapters 2-5 of BCEA (regulation of working time, leave, particulars of employment & remuneration and termination of employment) exclude casual workers from coverage. Only provisions dealing with OHS apply to casual workers

BCEA (s.82(1) and LRA (s.198(2) fail to offer protection to workers in triangular employment relationships especially when they identify the labour broker (TES) as the employer.-’legal fiction’

Informal workers fall outside the ambit of protection of the labour law.

END

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