Who’s in and who’s out: Labour law and those excluded from its protection

Abstract

The article examines the role of trade unions in relation to the difficult question of which workers are, or should be, regarded as employees for the purposes of labour legislation. It starts by noting the changes in the globalised labour market that have led to the creation of hierarchies (divisions) amongst workers in the workplace – between those employed by the owner of the workplace and the workers of ‘temporary employment services’ (TESs); between workers and ‘independent’ contractors who are not really independent; between workers in standard and non-standard employment; and between workers who are employed and those who are self-employed. The article argues that trade unions cannot afford to ignore these hierarchies. To do so means ignoring the traditions of working class solidarity on which trade unionism is founded and helping to entrench these hierarchies. The alternative is to challenge the divisions by organising the workers who are excluded at present. Significant gains can be made, it suggests, by working in parallel with other organisations, including those mobilising in the informal economy. The starting point, however, is in the workplaces where their own members are located. The article looks at the amendments introduced to the Labour Relations Act (LRA) and Basic Conditions of Employment Act (BCEA) in 2002, whereby certain workers are presumed to be ‘employees’, and criticises the shortcomings of the amendments. The basic problem, it suggests, is not only to expose disguised employment relationships by recognising ‘dependent contractors’ as employees but to extend protection to employees in ‘triangular’ employment relationships (those who are treated as employees of the TES and not of the employer for whom they actually work) and others who are excluded
from important provisions of labour legislation. This struggle, the article concludes, is at the same time a struggle to organise the unorganised. The article warns against placing too much reliance on the courts. The best prospect for achieving broader legal protection is by effectively organising those who are excluded. But ‘before we can expect a change of mindset from the courts’, it suggests, ‘there must be a change of mindset amongst the unions’.