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The position with regard to possible new labour legislation is that the Labour Minister is currently busy drafting a Bill for the further regulation of the staffing industry. There has been recent public mention by the Minister that the banning of the industry is not on the cards.

Nritika Singh, MD of Isilumko Staffing, comments, “The staffing industry is awaiting the much anticipated draft Bill from the Minister with interest. Public hearings took place around the country in 2009, followed by the drafting of a Draft Discussion document by the Department of Labour (DOL). The process is that after completion of the Bill, the Minister will need to take the Bill to Parliament for approval in principle. Thereafter, it is tabled and debated in NEDLAC.

“The DOL is waiting for Parliament’s labour committee, which has considered the public hearings, to advise with their recommendations. If legislation is to be passed by November 2010, the Bill needs to be passed by mid-July 2010. Given all the processes, it is unlikely that there will be a change in the statutes regulating labour brokers before next year.”

Singh adds that in December 2009 the Namibian Supreme Court of Appeal held that the banning of labour hire is unconstitutional. The ruling reversed the situation and declared it permissible for labour hire to continue operating. This ruling may influence the DOL in their deliberations.

Some of the regulations that are likely to be in the Bill include:

• Labour brokers need to be registered;
• the Minister may have certain powers to prohibit Labour broking in specific sectors if abuse is found;
• joint and several liability for compliance with labour legislative obligations including the Labour Relations Act;
• during probation, only protection against automatically unfair dismissals would apply;
• and a prohibition of discrepancy in wages and working conditions between temporary assignees and direct employees.

Singh says that there are positives to be taken from the draft Bill by the industry. For example the reputable staffing companies represented by APSO and umbrella body CAPES, support statutory compliance and believe that abusive practices by unscrupulous operators should be stopped. Singh continues, “There is a misconception that assignees have a lower grade of protection than permanent employees. However, the reality is that the Labour Relations Act, Employment Equity, Skills Development, Basic Conditions of Employment Act (all assignees working for more than 24 hours per month) and Bargaining Councils all apply and provide temporary assignees with rights and remedies. The credible staffing companies are registered and comply with their statutory obligations.

“We provide for a statutory allowance in our costings to cover the BCEA leave benefits, UIF, Skills Development and COID. The industry frowns upon unregistered operators who undercut margins by failing to provide benefits stipulated by statute. The industry representative body, APSO, also compels its members to subscribe to a Code of Ethics and provides that member consultants need to write an industry entrance level exam. We would welcome further regulation which encourages compliance for all companies wishing to operate in this space.” Steve Katz, HR and Legal Director of Isilumko Staffing, says that extending liability under the Labour Relations Act to the client as well as the Labour Broker may be welcome. The reputable organizations contract with clients on the basis that they can discharge their legal obligations as employer.

We provide that clients will co-operate with us so that we can carry out the poor performance and disciplinary processes as stipulated by statute. This may further encourage clients to err on the side of compliance and avoid utilizing the short-cut operators. “In our opinion, relaxing the unfair dismissal responsibilities during probation would be welcomed by staffing companies and employers alike. Our unemployment levels are worryingly high, particularly amongst the youth. The latest budget provides for the state to partly subsidize the employment of the youth. Relaxing dismissal procedures would provide employers with further encouragement,” concludes Katz.

As seen in:

• Star in the Workplace
• Cape Argus
• Skills Portal