pay parity for labour broker workers? Suzanna Harvey, Cape Bar Using LRA section 198A(5) pay parity for labour broker workers? Suzanna Harvey, Cape Bar

Outline The problem - pay inequality The lawmaker’s solution – pay parity for low earners in ongoing work 3 principal difficulties in realising right to pay parity CWAO test case Lessons

Workers employed through labour brokers paid less paid less than directly-employed counterparts worse conditions of employment work ongoing, not temporary labour broker dismisses on request of client – difficult to access reinstatement generally not organised by unions

LRA Amendment: s 198A(3)&(5) (low-earning labour broker workers) s198A(3): if not temporary, deemed employed by client on an indefinite basis s198A(5): such workers: “must be treated on the whole not less favourably than an employee of the client performing the same or similar work, unless there is a justifiable reason for different treatment’ Legislator’s purpose (ex Memo): to limit employment through brokers to ‘genuinely temporary work’

Challenges for workers trying to access / enforce s198A Enforcement is through CCMA and Bargaining Councils. 3 challenges: Workers lack organisation and resources Employers strongly resist Commissioners are faced with a complex enquiry

1. Workers lack organisation and resources Necessity for new forms of organisation Litigating to enforce new rights no easy task – requires tenacity, organisation, resources

2. Employers strongly resist Vigorous contestation by employers who: Appoint high-powered legal teams Delay Exploit technicalities (eg jurisdiction) Withhold comparative information

3. Complex enquiry for CCMA/BC Commissioners Who is a TES, does it include an “outsourced service”? What is ‘same or similar’ work? cannot compare job function where whole categories of work done through broker: enquiry amounts to grading exercise Workers lack access to information to prove less favourable treatment What justifies different treatment (s198D(2))? Different treatment justified if it results from “the application of a system that takes into account: seniority, experience, length of service merit quality/quantity of work other criteria of similar nature”

CWAO Test Case: Choenyane & others v SDV and LRS Delays; legal technicalities: deeming dispute referred in June 2015; withdrawn November 2015 s198A(5) referred November 2015; conciliated in January 2016 May 2016: Arbitration day 1 Res judicata Unprepared - postponement June 2016: Arbitration day 2 employer directed to furnish information immediately applies for rescission July 2016: Arbitration day 3 employer refuses to concede ordinary known facts Workers must call multiple witnesses

CWAO Test Case: Choenyane & others v SDV and LRS August 2016: Arbitration day 4 – completed September 2016: argument October 2016: unfavourable award Presently being used by CCMA as a training tool

CWAO Test Case: Choenyane & others v SDV and LRS Commissioner reluctant to enforce rights in face of strenuous opposition Fails to address wage disparity In 3 categories of work: no changes because Applicants did not prove ‘same or similar’ work In 2 categories of work which SDV conceded are ‘the same’: SDV ordered to ‘apply performance management’ to those employees (drivers & forklift drivers) within 60 days, and itself decide whether to adjust their salaries.

CWAO Test Case: Choenyane & others v SDV and LRS Labour Court review unlikely to be heard before the fourth quarter of 2017

Some lessons so far: Find effective forms of organisation When using s198A(5) workers need parity of arms for parity of pay CCMA can make a difference – it exerts influence over the culture of rights enforcement – for example:

A robust approach (in keeping with CCMA tradition) would be: What is ‘same or similar’ work? Order disclosure of information as a matter of course (exercise of Commissioner’s inherent power to resolve the dispute) Use grading system as a proxy to avoid complex enquiry What justifies different treatment? Require employer to prove ‘system’ that is objective pre-exists the dispute was at least communicated; preferably negotiated