Exploitation of workers by Govt – MP Kgoroba
Documents leaked to this publication reveal that Debswana is gearing up to increase its use of labour brokering in a bid to avoid the consequences of the legal obligations imposed by the Employment Act.
The controversial practice, prevalent in De Beers’s mining operations in Namibia and South Africa has come under sharp criticism by trade unions and politicians who say it is a trade in the “commodification” of human beings.
The private tender document calling for companies to provide labour brokering services for various skilled and semi-skilled professionals highlights the lack of legislative inroads aimed at protecting the unemployed from exploitation.
The tender calls for a labour broker to provide 37 categories of workers, in multiple fields from Maintenance Operatives to Audiologists with experience ranging from 1 year to 5 years, a particularly vulnerable segment of the employment market seeking to find work and increase their working experience. The tender provides for a two year contract payable per hours worked monthly by the brokered worker.
The controversial practice of labour brokering remains legal in Botswana, South Africa and Namibia, though in the latter two countries it is tightly regulated by statute. In Botswana there are currently no legislative inroads aimed at curbing or regulating the industry. In the current economic climate and the high unemployment rate, currently and controversially set at 17% by Statistics Botswana, the unemployed, and particularly the youth are increasingly vulnerable to being traded as a “commodity” by a company seeking to employ short to medium term employees without the obligations imposed on them by the Employment Act.
Research by this publication shows that under the common law a contract of employment can only be between two parties, there was no place for a third party, the labour broker. Under the law Botswana inherited at independence, Roman Dutch law, the owner of a commodity could “rent” it out. The commodity in labour brokering is the worker (slave) and in the absence of legislation or the safeguards put in place by the IOL labour broking amounts to slavery.
Under normal Labour Brokering agreements, labour brokers provide workers to their clients (the third party) to meet the client’s specific employment needs. The client then assigns those employees their duties and supervises the execution of their work. The contract of employment however remains between the labour broker and the worker, with the worker having no contractual relationship with the client who remains the ultimate beneficiary of their services. The broker, under normal circumstances administers the payroll of persons who have been placed with clients and assumes the responsibilities of deducting employee’s tax from the worker’s salary. The contract of employment is often made subject to the condition that the agreement continues for as long as the client requires the services of the employee.
For their part the client and the labour broker conclude a commercial agreement under which the client is invoiced for the services being rendered at an agreed amount. From the agreed contractual amount the labour broker pays the worker’s wages resulting in the lack of a contractual relationship between the client and the worker.
The leaked tender, in the possession of The Botswana Gazette, reveals that the labour broker will be paid according to hours worked by the worker. A component of the practice of labour brokering that creates job further insecurity and uncertainty for the worker.
The tight legislative regulation over labour brokering has arisen to address concerns that the practice amounts to the trading of human beings as commodities. Trade unionists argue that due to the commercial contract being agreed to between the labour broker and the “client”, which sets out the stipulated labour services to be supplied and the price at which those services are supplied, the true suppliers of the labour, the workers are excluded from the process. The workers and their labour become the commodity traded by others without their input. This position, unionists argue undermines the rights of workers to negotiate their wage and employment terms relegating them to mere chattels.
The leaked document is unique in regard to the requirement that the broker will only be paid for hours worked by the worker, creating an unintentional blurring of the ultimate employer. The client in terms of the tender, controls the general conditions of work, including working hours and conditions of employment, yet unlike the traditional labour brokering agreement, instead of paying the broker and fixed monthly sum, the client only pays the broker for hours worked by the worker. Hours the client dictates and therefore ultimately controlling the pay of the worker.
In investigating the legality of “labour brokering” in Botswana, this publication found various unreported Industrial Court decisions that looked beyond the contract of employment to ascertain who bore the ultimate responsibility for the workers wellbeing and who bore the legal responsibility of ensuring obligations to workers under the Employment Act were adhered to. The Industrial Court variously held that “The application of these tests must take account of the realities of the particular situation rather than the form in which the parties choose to give to the relationship.” In contrast however, the Court of Appeal recently applied a strict adherence to the terms of the employee/ employer relationship based on contract. The Court of Appeal held that termination of employment can be based purely on the contractual obligations between the parties without the need to consider substantive and procedural fairness.
Legal scholars argue that applying the Court of Appeal Judgement on termination of contracts of employment based purely on the terms of the contract, and the Industrial Court decisions that look beyond the contract would likely lead to legal uncertainties based on whether a claimant approached the High Court or Industrial Court for help.
This uncertainty undermines the legal certainty principle is a cornerstone of the Rule of Law, stated an attorney. Though common law and Botswana’s international obligations under the International Labour Organisation Convention (ILO) can protect workers and address some of the disparities of interpretation of worker’s rights they are not however binding on the Courts as they have not been introduced as local legislation.
Zimbabwe, Namibia and South African have introduced legislation to address such disparities and override the common law and incorporate international labour obligations into local law. This has not yet been done Botswana. Additionally, Botswana’s international obligations under the ILO have increasingly come under scrutiny with government being reported by The Botswana Federation of Public Service (BOFEPUSU) in May this year, for violating worker’s rights under the joint bargaining council.
The fact that international labour law obligations have not been introduced locally does not however prevent the ideals espoused in those conventions being used by government and the High Court, like it is done at the Industrial Court to give direction as to the approach to be adopted, “After all, both Vision 2016 and vision 2036 speak to a transformative society seeking to address inequality,” stated the Attorney when asked to comment on the legality of labour brokering.
In both Namibia and more recently in South Africa, in July of this year, the courts found labour brokering to be permissible under national law according to each countries respective legislative provisions and international obligations. The international guidelines under the ILO Convention recognise that labour brokers are a “labour market service.”
The legality of labour brokering, in the absence of legislative inroads, under the common law and international obligations is based on the creation of obligations between the client and the worker to ensure the protections of the rights of the employee. The ILO provides conditions that must govern the operation of brokers for their registration and licensing before according them legal status. In addition the ILO requires measures be taken to ensure that workers who are placed by labour brokers are not denied the right to freedom of association and the right to collective bargaining. Furthermore Article 11 requires that signatories to the ILO, such as Botswana, take measures to ensure that employees employed by labour brokers are given adequate protection in relation to minimum wages, working time, social benefits, occupational safety and health compensation and maternity protection.
While the ILO’s Convention does not ban labour broking, it seeks to regulate labour brokers and their practice to ensure that workers not exploited.
However, given that the High Court, unlike the Industrial Court does not base its determinations on equity, the uncertainty in the courts approach as to the legality of labour brokering can only be addressed through the intervention of labour legislation, the Attorney argued.
The lack of legislative intervention culminating in the increased use of labour brokering reflects the current trend of governments disregard for labour Unions and the intensification of exploitation of workers indicated Member of Parliament for Mogoditshane Hon. Sedirwa Kgoroba when answering questions by this publication on labour brokering.
The MP raised the concern that not only could labour brokering undermine Unions’ ability to effectively strike, as striking workers could be replaced with non-union brokered workers but noted in addition that workers engaged through the process would not be able to unionise thereby undermining their collective bargaining rights.
Trade unionists argue that additional concerns are raised as brokered workers do not have fixed employment and are moved from one workplace to another within short periods, often with no access to union officials. The insecurity of employment is compounded by such workers not being able to, in the event of qualifying to be members of a union, of making stop-order deductions for union subscriptions, rendering it impossible for them to remain members.
De Beers, government’s 50% partner in Debswana is not new to labour and political controversies, it has weathered the storm of both South Africa’s and Namibia’s Truth and Reconciliation commissions. What is unusual however is that a state-owned enterprise is engaging in a practice that has been so widely condemned. So long as there is no legislative inroads labour brokering will be open to abuse. Efforts to get response from Debswana were futile.
Labour law is clearly not intended to solely promote workers agendas; by its nature it ought to address the disparity of the working relationship between the worker and employer given the prevailing economic climate.