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n South African Law Journal - Labour brokers and workers' rights : can they co-exist in South Africa?
The long-running debate over the place of labour brokers in the South African labour market took a decisive step at the end of 2010 when the government published draft proposed amendments to labour legislation. Zwelinzima Vavi, General Secretary of COSATU, forecast the 'mother of all battles' over the issue in 2011.
Labour activists have long called for the industry to be banned outright, complaining of exploitation in the workplace. Economists and researchers have warned that this would impact negatively on the economy: they cite statistics showing a growth in employment in the sector and argue that this means that the industry creates jobs. Employer bodies representing the larger broking companies have insisted that it is just the 'bakkie brigade' that gives the whole industry a bad name: they suggest that existing legislation is adequate to protect workers, but that it should just be better enforced. They consequently call for 'regulation' of the brokers. Lastly, those defending the industry insist that an efficient economy requires temporary workers, and that banning brokers will curtail this essential function.
However, what the proponents of 'regulation' fail to see is that the current legal dispensation covering labour broking is constitutionally untenable. Globally, legislation protects workers in employment. In South Africa, two key protections are included in the Bill of Rights: the right to fair labour practices (which includes employment security), and the right to bargain with employers to improve conditions of employment. Under the current dispensation, a labour broker employs a worker, who is then provided to a client for a fee. The worker works for the client, under its supervision and at its workplace, but is paid by the broker. The Labour Relations Act (LRA) stipulates that the broker, and not the client, is the employer of the worker.
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