Johannesburg - The envisaged amendments to labour legislation designed to end labour broking have been dealt a blow by the leaking of research by the government's top advisers indicating that such plans are unconstitutional and moreover violate international conventions signed by South Africa.
A research report drawn up at the request of the department of labour by Dr Paul Benjamin, a lecturer in labour law at the University of Cape Town, Professor Haroon Bhorat and Carlene van der Westhuizen from the Centre for Policy Development at Ikeys, presents damning conclusions about the proposed amendments to labour legislation published by Labour Minister Mildred Oliphant in the Government Gazette in December last year.
Their 124-page report was completed last September and handed over to the Department of Labour, which is probably why Oliphant’s predecessor, Membathisi Mdladlana, did not publish the amendments.
Oliphant however published the amendments less than a month after taking over from Mdladlana.
Oliphant simply altered sentences, following the report. None of Benjamin, Bhorat and Van der Westhuizen’s objections were addressed.
The report will be a massive embarrassment at the labour portfolio committee’s first public hearing on the amendments being held in Cape Town this week. Short notice was given of these hearings when they were announced last week.
The three academics are the department of labour’s principal advisers on labour legislation.
They warned that the attempts to do away with fixed-term service contracts would result in a portion of the 2.13 million workers in this category, about 16% of the country’s total workforce, not receiving permanent appointments.
Of these, some 500 000 have been working in temporary positions for three years or more. The report made damning pronouncements on government's plans.
The proposals would in reality result in labour broking being banned, the report states, and there was a serious danger that they would violate the Constitution on two grounds.
First, they would affect the right to freely choose a business, occupation or profession. A Namibian amendment was previously struck down on these grounds.
Second, they would narrow the definition of a worker in terms of labour law. They would not only affect the right to fair labour practices and make South Africa an offender in terms of international commitments, they would also have a seriously destabilising effect on the labour market.
What is more, they were opposed by labour and the business sector in the consultative process (on the amendments), declared the three researchers’ report.
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