GWEDE Mantashe created something

of a furore when he told an

ANC lekgotla a year ago that the jobs

the party wanted to see need not be

“decent” as there was “nothing

more (degrading) than being unemployed”

(Business Day, 18 January

2011). He was not altogether wrong.

It is true that there is nothing

more degrading than being unemployed,

in the sense of being without

work. Work is integral to our sense

of worth and dignity. It is the primary

way in which social inclusion

is achieved. For these reasons, work

has been recognised as a right, since

the Universal Declaration of Human

Rights was adopted.

Where Mantashe seems to have

gone wrong is in what he presupposes

decent work to mean – as

though decent work is defined by an

objectively verifiable standard,

applicable to a certain form of work.

He can perhaps not be blamed for

that. Decent work has become a slogan

without much attempt to engage

with its origins or meaning.

The concept originates with the

International Labour Organisation

(ILO), and has morphed through various

formulations since it was first

mooted in 1999. In all the frameworks

adopted, “work” has been understood

to encompass all forms of work. This

is what is significant about the concept.

It is not a standard that is only

applicable to employees.

What is decent or not remains a

matter of debate.

To place this debate in its historical

context, the adoption of decent

work represents the ILO’s response

to a global situation in which its

labour standards are increasingly

seen as irrelevant, particularly in

the less developed nations of the

global South.

There are two reasons for this.

First, labour standards are

premised on there being an ongoing

relationship between workers and

an employer, in which the employer

controls the workplace where they

work, and is accountable for the conditions

under which they work. This

is the standard job.

But the standard job has never

been the norm in much of the global

South. Further, even in developed

countries, it has increasingly

become a fiction to say the employer

controls the workplace, or is solely

accountable for the conditions of

the workers.

One way to understand why this

is so is in terms of a value chain, in

which the economically dominant

party is regarded as a lead firm, in a

vertical relationship with other

businesses that are subordinate to it.

Walmart, a company whose

assets and sales exceed the gross

national product of all but a handful

of developed countries, epitomises

such a firm. Conceptually, the contractual

relationship between Walmart

and its suppliers is one of

between equals. In reality, it obviously

calls the shots.

I prefer to focus on the point

where workers actually work,

because this is where workers associate

with one another, and have a

collective presence. The workplace

in the formal economy used to be a

place where only employees of the

employer work. Nowadays, it is a

place where different employers,

each with their own workforce, congregate

around what I call a core

business. It is the core business that,

in turn, determines the conditions

under which the workers employed

by their satellites work.

Despite their oft-stated opposition

to a two-tier labour market,

trade unions have not been successful

in resisting this development,

even in unionised workplaces.

Labour legislation, which supposedly

cares about the inequality

inherent in the employment

relationship, has by and large been

neutral in its response to this development.

The result has been the

emergence of tiers in the formal

workplace, not to speak of the

labour market at large.

Labour broking is by no means

the only instance of this. To illustrate,

it is convenient to take a case

study with which everyone is familiar

– the provision of municipal

services. Municipal services are provided

by municipal workers whose

conditions of work are regulated by

a bargaining council agreement that

is negotiated nationally. What is not

as well known is that there are many

workers providing municipal services

who are not employed by municipalities

at all, or who are not

directly employed by them.

Waste collection, for example, is

indubitably a municipal service. Yet

many municipalities have engaged

private contractors to provide this

service, in informal settlements and

elsewhere. Some municipalities

have even set up separate entities to

do so. It also appears that these services

are being provided under the

guise of public works.

Whatever justifications may be

offered for such arrangements, in

the final analysis the benefit for the

municipality is to be able to employ

workers at a fraction of the cost of a

municipal worker proper, without

being legally accountable for them.

The municipality is also not

accountable for any job losses that

would flow from its terminating a

contract with a contractor, any more

than Walmart would be for doing the

same with a supplier.

Some economists have recently

been making noise about the cost of

labour in SA. I suspect this has less

to do with what labour actually costs

at present, than in anticipation of

what it will cost if the Labour Relations

Amendment Bill of 2012 is


The bill for the first time departs

from an approach in terms of which

all employees are treated alike. Specific

provisions are needed for specific

categories of employees, such as

part-time workers and agency workers.

A principle of equal pay for equal

work will apply in respect of each.

It nevertheless remains legislation

rooted in the paradigm of

employment in a standard job. It

cannot hope to alter the structure of

the economy. A municipality utilising

a contractor to render municipal

services will continue to be able to

do so, even though the structure of

the relationship is practically identical

to labour broking.

It goes without saying that workers

in what might be described as a

third and fourth tier will also not

benefit in any way from the bill.

An example of the third tier, in

the municipal context, would be the

provision of child-care and crèches.

The persons who run these enterprises

are self-employed, and may

need to employ others to assist them.

Some would characterise them as

entrepreneurs. I would regard them

as own-account workers, providing a

service in working-class communities

that should be seen as socially

indispensable. Until quite recently

the City of Cape Town, for one, saw

this as a municipal service.

Although there is no contractual

nexus between a municipality and

workers, how the municipality as

well as the department of social welfare

regulates these facilities has a

direct bearing on their sustainability.

It also has a bearing on the conditions

under which workers are

employed, and the wellbeing of the

children in their care.

A similar argument can be made

in respect of waste pickers operating

on municipal landfills. Such

workers might be regarded as constituting

a fourth tier.

These examples concern workers

engaged in work that cannot necessarily

be conveniently categorised

as either standard or non-standard,

or formal or informal, because these

terms are themselves the product of

a paradigm that no longer applies.

There can, therefore, be no question

of simply extending labour legislation

to include such workers.

Other forms of regulation may

be more relevant than labour legislation

in creating conditions that are

decent. The debate that the concept

of decent work invites us to have,

concerns how resources are allocated

to promote all forms of work,

and not just employment in a standard

job. It also implies that there is

a need for a new paradigm.

As currently formulated, decent

work comprises four objectives.

The first of these objectives is

“creating jobs”. These jobs need to be

sustainable, and the concept of a job

encompasses “sustainable livelihoods”.

Although it is convenient to

describe this as an economic objective,

it can also be regarded as the fulfilment

of a right to work, without

which decent work is unattainable.

The second objective, “guaranteeing

rights at work”, can be described

as legal in nature.

The third objective, social protection,

relates to the provision of welfare.

Some would argue these objectives

are in conflict with one another.

The ILO also does not say how these

different objectives should be prioritised,

when all the objectives are not

equally attainable.

This is indeed a weakness. It also

renders futile any attempt to develop

indicators of decent work. Decent

work is clearly not a quantitative

concept. It would, therefore, be a

mistake to try to measure it.

However, both in the rights which

are the focus of the legal objective,

and in terms of its fourth objective

of social dialogue, there is an

emphasis on the value of workers

having organisations that represent

them and that voice their interests.

The most debilitating situation

for any worker is to be powerless to

address his or her work situation.

Work cannot be regarded as

decent merely because workers say

it is. At the same time, what workers

say about their work is important,

particularly when what is decent is

not an objectively verifiable standard.

At a minimum, therefore,

there needs to be effective organisations

for workers whose worth is

currently not recognised, and

forums where they can raise their

collective voice. That way, it will be

possible to take the debate forward.

. This is the third in a six-part

series. Former trade unionist Theron

is a practising labour lawyer, and is

currently co-ordinator of the labour

and enterprise policy (LEP) research

group in the Law Faculty of the University

of Cape Town.