Outsourcing has fallen at UCT: why is this an important win for all of us?
At common law a contract does not have to be fair to be lawful. For a contract to be lawful there must be consensus (agreement), the parties must have capacity to act, the terms must be legally and physically possible to perform and any formalities imposed by law or by the parties themselves must be adhered to.
But fairness is not a requirement. The employment relationship at common law must meet the above requirements to be lawful. At common law, there is, similarly no requirement of fairness. But the employment relationship, has, by its nature, a strong element of control and has its origins in the master/servant relationship of our common law. This means that the relationship is vulnerable to imbalanced power relations. Our legislators have thus attempted to impose the requirement of fairness onto the relationship statutorily via various measures in the LRA including collective bargaining, Basic Conditions of employment and various Employment Equity Mechanisms.
The culture of outsourcing and labour broking is a way in which some of the mechanisms which were intended to impose fairness onto the employment relationship can be circumvented. So at a very basic level a buffer is created between what would otherwise be employers and employees. This distance allows for what would have been the employer to distance himself/herself/itself from who would have otherwise been the employee and be far less accountable. There are many complexities and implications that are experienced by a worker where this “middle man” or agency relationship exists. Some are:
1. The worker is enduringly a contract worker without proper expectation of permanent employ
2. Because of the buffer/ “middle man” or agency cost, the worker tends to end up with less pay than would be the case if there were no such buffer
3. Relationally the worker doesn’t have the same connection that is meant to be born in good faith, trust and loyalty that is meant to be nurtured within the employment relationship
4. It is much easier for what would have been the employers to harden their hearts and shut down contract workers than would be the case in a proper employment relationship
Does this mean that there are no upsides to outsourcing and labour broking? No. But in a deeply divided society such as ours and one that is so profoundly unequal, outsourcing and labourbroking serves to deepen the disparity that is hurting us all. A close examination of the Marikana massacre shows that labour broking or outsourcing played a significant compounding role in the unfolding events that lead to the tragedy.
The youth in our land are leading the charge in dismantling some of the aspects intrinsic to a system that can sustainably advantage the few at the expense of the many, if it remains largely unchallenged.
We need to understand that in the broader scheme of things, in the interests of a more just, and therefore potentially safer world for the next generation (that’s our kids), the current movements lead by our students are actually in the interests of us all.
Sheena St Clair Jonker
Per ADR Network SA and the Access to Justice Association of SA
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