Labour brokers are sidestepping the law, says Numsa

The ongoing strike at ArcelorMittal has brought the issue of noncompliance with Labour Relations Act amendments regarding temporary workers to the fore.

Fusi Mkhwanazi, a father of three, has worked for ArcelorMittal as a contract worker for more than 17 years. As the breadwinner, he is paying off the bond on his home and his daughter’s university fees.

Mkhwanazi is employed by labour brokerage Real Tree Trading. He says that those who are doing the same work and have been working for the same amount of time but are employed permanently by ArcelorMittal get benefits and earn way above him.

Last year, a Constitutional Court judgment that affirmed the rights of labour-brokered workers was lauded as a victory for low-earning workers. It gave workers the right to equal pay for equal work and the right to strike and collective bargaining, among other rights and benefits they were previously denied.

But, led by the National Union of Metalworkers of South Africa (Numsa), employees of Real Tree Trading have downed tools indefinitely at ArcelorMittal, calling for contract workers to be employed on a permanent basis as per the court ruling.

In the judgment the court affirmed the Labour Relations Act amendments of 2015, which state that an employee of a labour broker becomes a permanent employee of the main employer after three months. The court also declared that the maintenance of a triangular relationship of employment tends to frustrate the purpose of the amendments, which are to restrict temporary employment to “genuine temporary work”.

“The court judgment of last year stated very clearly that after three months, the worker becomes the employee of the client company only, not of the client company and a labour broker, which is what the employers want, but of the client company only,” said Ronald Wesso of Casual Workers Advice Office (CWAO), an organisation that works with labour-brokered, contract and casual workers. (The CWAO were involved in the court judgment as friends of the court.)

Same work, different pay and treatment

Wesso said the CWAO has “estimated that since this right came into effect, only about 12 000 workers got permanent jobs. But there are more than a million labour-brokered workers in the country. If you add in the fixed-term contract workers, we are talking about 40% of the workforce, five million workers who were supposed to get permanent jobs.”

Real Tree withdrew its interdict against the strike, which is in its fifth week. Initial attempts at negotiations between Numsa and ArcelorMittal through the Commission for Conciliation, Mediation and Arbitration (CCMA) failed as the two could not reach an agreement.

Residents from Boipatong near Vanderbijlpark, where ArcelorMittal is based, have joined the striking workers from ArcelorMittal to raise their own issues, particularly the lack of electricity in the township for more than three weeks.

Numsa is demanding that ArcelorMittal – one of the largest steel producers on the continent – insource workers employed through contractors such as Real Tree, investigate the hazardous working environment for contract workers and reopen an investigation into shop stewards dismissed in 2016.

ArcelorMittal says it will insource only critical skills in the next three years as part of its business optimisation programme, a proposition Numsa rejected because ArcelorMittal had agreed in part to insource but said “it will result in retrenchments” of workers, according to a Numsa statement.

Contested priorities

ArcelorMittal told Numsa representatives that it had become apparent “that the issue of permanent employment for Real Tree employees is a secondary issue” and that the main issue is the reinstatement of dismissed shop stewards.

Numsa spokesperson Phakamile Hlubi-Majola refuted the claim, saying “the demand has always been and remains for all workers to be insourced … The issue of shop stewards is definitely a demand and one of the issues that are part of the strike, but the strike is because of the fact that workers at Real Tree have been abused.”

“Workers who are brought in through Real Tree trading earn lower wages and receive lower benefits, yet they do the same work as full-time employees of ArcelorMittal,” said Numsa.

On 14 March 2019, workers barricaded the east gate entrance to the company. Numsa shop steward for ArcelorMittal permanent workers Motlasti Potsane said: “We are here today because our management is exploiting our fellow [workers who are on contract].

“We are here as leadership and workers to support that [contract workers] should be signed permanently as well and should enjoy the benefits that the permanent employees are enjoying, so that they can have the same treatment as permanent people.”

14 March 2019: Motlasti Potsane raises his fist as he leads workers in protest outside ArcelorMittal.

Separate gates

Mangaliso Nonjolo, 41, who is a general worker at ArcelorMittal through Real Tree Trading said that “to work from hand to mouth is slavery, because you cannot say when you go home, ‘I know, I have a house, I have a car, if my child is sick I can take him or her to hospital.’ We don’t have those things.”

Potsane told New Frame that permanent and contract workers at ArcelorMittal are made to use separate gates. “What is that?” he asked. “That is separating workers. You cannot say that this is a contractor’s gate and this is a permanent people’s gate. We want to do away with all those things.”

Wesso supported Potsane’s view that contract workers are subjected to poor working conditions. “They have fewer rights and they have much less say in the workplace because they are never taken to belong there, they were taken as temporary. We have cases of people who have been working since the 1970s … in these so-called temporary positions,” said Wesso.

“If we have worked well in a particular month, permanent workers get production money and I do not get it as a contract worker, despite doing the same work,” said Mkhwanazi.

Sandile Donald Mendu, 34, said they do essential work in ArcelorMittal’s production process but are not treated fairly or with dignity.

“We start the production. I have 11 years working as a contract worker. I work with Mittal employees, they have housing allowances and medical allowances and I don’t. When a permanent employee retires, they replace that person with a contract worker, without the benefits the permanent worker enjoyed.”

14 March 2019: (From left) Mangaliso Nonjoli, Sandile Donald Mendu and Fusi Mkhwanazi outside ArcelorMittal during the protest.

Labour brokers or service providers?

Numsa has claimed that Real Tree trading “colluded with ArcelorMittal to circumvent the decision of the Constitutional Court, in order to deny workers the right to enjoy benefits as full-time employees. By calling itself ‘service provider’, Real Tree think they can hide who they are. We will not be fooled. They are brutal slave owners who are carrying out the cruel system of labour broking.”

Wesso said: “A lot of labour brokers, in our experience, are going the route of arguing that they are service providers. And, unfortunately, we are in a situation where the employer class are very dominant …  So, they are actually getting away with it, despite the fact that there is no definition of a service provider in the law, there is only a definition of a temporary employment services provider, which is a labour broker.”

ArcelorMittal insists that Real Tree is not a labour broker but a “registered service provider that secures contracts from ArcelorMittal South Africa through a robust tender process”. The steel company told New Frame that the Metal and Engineering Industries Bargaining Council (MEIBC) had confirmed that Real Tree was not a labour broker.

“Now you see that companies are using this [service provider] argument because both CCMA and bargaining councils and labour courts are so favourable to the employers and a lot of them are getting away with it. The strike is going to have an impact way beyond ArcelorMittal. We are involved in a number of battles where labour brokers are arguing that they are service providers,” said Wesso.

Extreme working conditions

Workers described their relationship with Real Tree and ArcelorMittal as modern-day slavery.

Bophilo ba rona bo cheap,” shouted one of the workers at the protest, which translates loosely as “our lives are cheap”.

Numsa said that some of “their members complain that the company forces them to work, even if the conditions are dangerous. Contract workers, in particular, are forced to do work which endangers their lives because they are worried they will be dismissed. Some have been seriously injured.”

Some of the workers who spoke to New Frame confirmed the dangerous nature of their work.

Potsane alleged that when one employee was injured to the extent that three fingers had to be amputated, production continued as if nothing had happened, with no counselling for the workers who witnessed the incident.

Mendu said some of his colleagues suffer burns because of the dangerous nature of their work.

Mogale Musike, 45, another Real Tree employee, said: “The problem is that the conditions we work in are not good for the workers, because the battery is extremely hot, something like 1 100 to 2 000°C. Because we are labour-brokered workers, we are instructed to stay on the battery to work more hours on the battery. Permanent guys from my workshop, they are not working, sometimes they take days without going to the battery. As contractors, daily we are there.”

ArcelorMittal denied the allegations by Numsa and its members, saying “safety remains ArcelorMittal South Africa’s number one priority and not only underpins the company’s licence to operate but is essential to its sustainability”.

14 March 2019: Under the 2015 Labour Relations Act amendments, temporary workers become permanent employees after three months. But many at ArcelorMittal are still employed by labour brokers and denied benefits, higher pay and better working conditions.

Threats of violence and harassment

ArcelorMittal said it will stop at nothing in instituting legal proceedings against Numsa if the union fails to control its members during the strike. The company alleged that there were acts of violence and intimidation against employees who were not on strike. It said “the company will not tolerate such action and is working with the local police to investigate these incidents and ensure the perpetrators face the full extent of the law”.

Numsa also alleged that ArcelorMittal and the South African Police Service (SAPS) have colluded in subverting worker rights. According to Numsa the police detained 10 striking workers on 15 March at ArcelorMittal’s instruction. The workers were released and the charges dropped, but Numsa viewed the arrests “as a gross abuse of power and harassment by SAPS and management of ArcelorMittal”.

Numsa said it will approach police watchdog the Independent Police Investigative Directorate (Ipid) to open a case of police brutality following the use of rubber bullets on workers. An employee, Numsa alleges, was severely injured by police while he was in the toilet and is “now forced to urinate through a pipe” in hospital.

“What these workers and Numsa are doing there is the right thing, to go on strike, to fight and be militant about it. Because employers will simply ignore these judgments, because the government is on their side and the government is one of the biggest employers of these types of temporary labour. They do it because they can get away with it. Ultimately, it’s going to take worker action and worker organising to actually push back and claim these rights,” said Wesso.

ArcelorMittal told New Frame that negotiations to end the strike are ongoing under the auspices of the CCMA.

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