1. 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

2. 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

4. 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

5. 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’

6. 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

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

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

9. 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”

10. 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deeming dispute referred in June 2015; withdrawn November 2015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

11. 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

12. 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.

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

14. 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:

15. 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