by Michael Bagraim
I have come back to my attorneys office and have started 2021 by consulting with various clients who represent industries and professions across the board. All these consultations have been via MS Teams or Zoom.
Not only has this saved me a lot of time and travel but I am finding that I am getting through more meetings on a daily basis than ever before. What is surprising but should have been expected is that many of my clients have moved their businesses to their private homes and they have given up their office space.
All of them who are able to work from home have indicated that this is going to be a permanent arrangement regardless of when the virus is eventually conquered.
Many of these businesses are able to ensure that the work is done through the employees who are likewise home-based. This has obviously created a situation where they need to revisit the contracts of employment or the terms of engagement with regard to individual workers.
Firstly, the labour laws are not in any way structured to ensure that the situation is properly governed.
Clearly, the health and safety regulations can’t be monitored and the employer (or contractor) has absolutely no control or input on the environment. Secondly, issues such as work times, lunch breaks and overtime are impossible to monitor. Thirdly, it is almost impossible for the unions to try and organise on a piecemeal basis.
Notoriously, domestic workers haven’t had full protection from trade unions because it doesn’t pay a trade union to go and recruit that individual worker and to try and negotiate on behalf of that individual.
Unions are also run as businesses and the very nature of the working environment becomes almost impossible for trade unions to monitor and engage.
The Covid-19 lockdowns have necessitated many employers to reconsider the work environment and to try and structure themselves so that workers can be productive from their home base. This has caused a complete rethink on the necessity of office space and or factory environments.
Even industrial work has been outsourced on a piecemeal basis enabling employers to save money on overheads and enabling employers to cut their costs by insisting on paying for production only as opposed to salaries.
Many workers today in South Africa are being paid for actual production and they’ve had no choice with regard to the changing of the agreements.
These workers are finding that they are working much harder just to keep up with the production demands but are in turn receiving less remuneration. Likewise, workers are finding it difficult to engage with fellow workers in order to assess whether they are receiving the same amount of money and whether they are facing the same demands of work production.
Collective bargaining is collapsing for these type of workers.
There are various positives arising out of the homework environment where people are reporting that they are saving hours per day by cutting out the travel and that they are saving travelling costs. The frustration of the daily commute has now become history and workers are able to do other home-based tasks while they are attending to their office.
As you can imagine, working from home has become a major boost for those who have child-caring duties and or other home-based responsibilities.
Workers are also able to structure their days making it more convenient for themselves and are able to be more productive without any external interferences.
People are able to make their own workspace more comfortable and conducive and in turn are able to reduce the normal everyday conversations which took place at the office.
Despite the above, I am engaging with many employers who are now wanting to restructure the work environment so as to create a situation where the workers are to be appointed as independent contractors and in turn they would invoice the previous employer for work done. T
his arrangement reduces the rights of the individual and to a large degree reverses all the gains made by the trade union movement over many years.
Independent contractors have no rights under any of our labour legislation including the floor of rights under the Basic Conditions of Employment Act. The termination of an independent contractor’s agreement does not give rise to an unfair labour practice or an unfair dismissal.
These arrangements can be challenged but invariably individuals don’t want to risk their so called “job security”.
There has to be a rethink and a relook at the labour environment in order to take into account the remote working restructure. The technology has enabled many employers to move into the Fourth Industrial Revolution in a hurry. Initially, this was as a reaction to Covid-19 but seems to be settling down to the new normal.
Unfortunately, this new normal does denude rights and also creates a situation where there are no barriers between personal time and work time. It has become difficult to manage from a whole lot of angles.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected].
** The views expressed here are not necessarily those of Independent Media.
Cape Argus
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