Monthly Archives: June 2013

Future of Labour Broking

Interesting take on Legal principles of deeming and equality of employment as per proposed changes to the Labour Relations Act.

CONSTRUCTIONAL ENGINEERING ASSOCIATION

(SOUTH AFRICA)

(INDUSTRIAL RELATIONS S

LABOUR BROKER DIVISION

LABOUR BRIEF:     TES Industry – Parliamentary Portfolio Committee outcome (Labour Relations Amendment Bill) – June 2013.  (Legal principles of deeming and equality of employment).

 

To:                       CEA – LABOUR BROKER DIVISION MEMBERS

 Date:                    24th June 2013

                                        LABOUR BRIEF NO.  350                                                           

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Over the past twelve months, all NEDLAC stakeholders and members of the public have, through the channel of the Parliamentary Portfolio Committee on Labour (PPC) debated the content of the ‘new’ Labour Relations Amendment Bill, in addition to three other Labour Law Review Bills, all of which were negotiated at NEDLAC over the past four years.

A topic of concern to both COSATU and DoL has been the controversial practice or industry of Labour Broking, which both of the above parties have seriously considered to ‘ban’ or in the instance of both Government’s recommendations and the detail of the ANC Manifesto, at least to formally ‘regulate’ and in so doing have strongly reject the concept of ‘self-regulation’, a model for which both private sector business and the TES Industry representative Associations, such as CAPES, CEA and APSO, have tediously argued over the past eight years, as having been proven to be the most effective means of ensuring compliance in this Industry.

During the last twenty days, the PPC has ended the phase of stakeholder presentations and debate.  It has during this closing season of its deliberations concerning this ‘Bill’, now entered a phase of drafting a recommendation report, for submission to Government and the general members of Parliament, so accounting for its role in terms of the Parliamentary process.  Therefore, at this stage the PPC is solely concerned with achieving a degree of agreement amongst its members, through the voting process, on certain legal technical matters contained within the Labour Relations Amendment Bill, as well as certain politically driven aspects of this Bill, such as the regulation of the right to strike and the regulation of the Labour Broking practice within the labour market.

In terms of the latter subject, earlier during June 2013, some members of the ANC called for what they considered to be a stricter form of regulation of this Industry, by voting for a ‘zero’ period of employment in terms of the recognized tri-partite relationship concerning the employment fixed-term period originally allowed in the Bill (i.e. six months).  This call for ‘over-regulation’ by the ANC was obviously to flag their support of COSATU and knowing that any ‘ban’ of this Industry would draw a Constitutional challenge from both Business and the TES Industry, they were careful to avoid openly suggesting such a ‘ban’.  However, members of the PPC agreed on the compromise of ‘three’ months, in terms of the fixed-term period of employment binding the relationship between Labour Broker, employee and client.

In this regard, both the PPC and the drafter of the original ‘Bill’ (viz: Professor Benjamin), have clarified that this duration of three months has the exact connotations as the original period prescribed by NEDLAC (i.e. six months), and as such is thus limited to and also limits the same employment relationship to the legal principle of ‘deeming’, this being a principle not foreign to our labour legislation, for such is already incorporated into the current Employment Equity Act.  A further ‘debate’ has inevitably stemmed from this ‘principle’ and its impact on the atypical employment relationship concerning the Labour Broker, its client and the employee (assignee).  This debate has largely been in the public arena and has been fuelled by so-called expert consultants and newspaper reporters, who have inaccurately assumed that the ‘shortened’ duration of the fixed-term contract of employment concerns the actual employment period, rather than the regulation of this atypical employment relationship specific to the ‘deeming’ principle being enacted by the employee (assignee).  Once this party to the tri-partite employment relationship alleges an unfair dismissal dispute and so thus being entitled at will to nominate the responsible ‘employer’ (i.e. either the Labour Broker or its client or both), as the responsible party concerned with such an unfair dismissal dispute.

Not amended in any manner by the PPC and as it appears in the NEDLAC test of this ‘Bill’, is another legal principle introduced during the NEDLAC negotiations.  The ILO principle of ‘equal pay for the equal value of work’ is referred to in this instance and as contained in Section 200 of the Bill.  Once again, the ‘understanding’ of this principle by certain members of the PPC (where only limited reference was made to this principle by its members), as well as newspaper reporters, indicates clearly that such ‘understanding’ is limited and any deduction therefore being made, is inaccurate because their interpretation is ill-founded.  The ‘equal pay’ principle is not limited to the Labour Broker employment relationship.  In fact, it goes far beyond this ‘atypical’ employment relationship, in that it underlines another employment relationship, that being the ‘typical’ employment relationship (i.e. the bi-partite relationship between employer and employee, excluding the Labour Broker).  As such, it has little to no relevance to the tri-partite employment relationship, other than causing Labour Brokers to ensure that the prescriptions of this principle apply to its own ‘core’ employees (staff).

The focus of this principle is on temporary employment, but not solely on how such employment applies within and to the TES Industry, but rather as applied to the normal or typical relationship.  Therefore, the period of direct employment by a typical employer of a ‘temporary’ employee is limited in that the Bill currently prescribes that such an employee must eventually enjoy both permanent employment status and the related benefits, as to those enjoyed in the exact same job as other employees also employed by the typical employer at that time.

Unashamedly, this particular understanding is an unintended consequence which allows the Labour Broker an obvious advantage in terms of value it may add to its client’s employment practices and business.  This reality is noted in this regard, in that because of the resources and nature of the larger TES Industry player, the latter is best positioned to implement the necessary criteria which will cause the principle of ‘equality’ to become more effectively managed and so limit the affect thereof on the Labour Broker’s client’s business, in terms of additional administrative and employment costs in the medium-to long-term employment periods.  Factors such as HR/IR expertise, national foot-print and ‘dilution’, are just a few of the practical applications which will enable the atypical employer (i.e. Labour Broker), to assist the typical employer (e.g.: client), to more effectively manage the impact of the ‘equality’ principle on the latter’s business both technically and legally.

To conclude, the PPC will continue for this month with its deliberation process and has undertaken to make no further ‘surprise’ changes to the Bill.  Dr. Loots, the Government’s legal adviser, has spent some time during the course of last and this week, clarifying both technical matters relating to the Bill, as well as confirming the interpretation of both the legal principles relating to atypical and typical ‘temporary’ employment, as noted above.

In terms of going forward, the PPC ‘whips’ agreed that this Bill will be tabled in the National Assembly and the PPC will adopt a report to present to that Assembly for their further debate.  The adoption of the Committee’s report on the Bill and the Memorandum on Objections are still to be debated. Parliament has gone back into recess and will meet again toward the end of July 2013.

 

- (END) -

 K. Cowley

(Chairperson – (CEA – LBD))

SINAKHO STAFFSHOP EMPLOYEE OF THE MONTH – JUNE 2013

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Congratulations to Lenox Chiloane who is our employee of the month. He has been a star temp since 2011. He works on targets which he meets also exceeds. His manager’s feedback has always been positive and we are proud to have him as one of our temps.  Lenox receives a voucher for a buffet breakfast for 4 people!

 

SINAKHO STAFFSHOP EMPLOYEE OF THE MONTH – APRIL 2013

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A big congratulations goes out to our Employee of the Month: Paulina Maboe!
She has been temping for 2 years. She is being commended for her excellent performance in her quality of work, timekeeping and attendance. Her manager describes her as a “brilliant staff member to have in the team as she takes pride in her work and is always willing to go the extra mile and is a pleasure to work with.” Well done Paulina! Keep up the good work and thanks for making Sinakho Staffshop proud!

Should I accept the counter offer?

Did you know that researched proved that only 6 out of 100 employees are still with the company after 12 months, and two important points become apparent:

1.  Salary was hardly ever the prime motivator for resigning.
2.  Things didn’t take long to return to the way they were before the resignation.

If you were so valuable along why did you have to resign to ge…t your employer to recognize it?

The reason most companies make counter offers is sot that they – rather than you – are in control of the timetable for the transaction. The company does not have to scramble to find a substitute.  That’s why they will give you a better salary to stay around.

The end result is that no matter how you behave in the future, you will always be regarded with suspicion.  You have already shown that you are ready to leave so management will be waiting for you to do it again.

Before you accept a counter offer it is important to think about what is being offered and what actually bought you to the point on leaving in the first place – a counter offer is almost always about money.  The reasons people leave are almost never about money alone.

Message from our Director, Martinette Van Wymeersch

“It is not necessary to change, Survival is not mandatory” ~ Edward Deming ~263426_376324602452912_892339003_a

It is unbelievable how our industry has changed in the last 10 years. I remember when we started the company in 1989, a small office in Hatfield where the telephone was probably the most important piece of equipment.

On the reception desk there was a huge lever switchboard and the CV’s were faxed to the clients.  In some cases candidates visited the offices and took a copy of their CV to the clients in white envelopes.

The impact of technology

Technology changed the way we engage with clients and candidates.

Positions were advertised in local media – Wednesday were a nightmare as the switchboard would ring non stop and the telephonic response was overwhelming.

Expanding your client base would include cold calls from the Yellow Pages, where as today we rely on the internet and websites.  Job portals and social media have replaced the adverts in the newspapers and e-mails and generic electronic newspapers are commonly used.

The good old days

I remember asking a candidate to bring his CV when attending the interview; he clearly did not hear me correctly and asked “shall I bring my TV?”

Some things remained

Fortunately there are things that have not changed.  We understand that the industry is about people.  Building firm relationships based on trust, we know that the candidates of today will probably be our client tomorrow.

For the last 23 years we have been assisting businesses gather the talent they need to compete and helping individuals find work and develop their career.

By Martinette Van Wymeersch, Director