Labour Brokerage on Fruit Farms: input by Centre for Rural Legal Studies & Women on Farms

Meeting report

Sharon Marco-Thyse, Director, Centre for Rural Legal Studies thanked the Committee for the opportunity to appear before them and introduced her team member, Colette Solomon, Deputy Director, Women on Farms Project. She began the presentation by highlighting that the first handout was a summary of a much more detailed article which they were going to launch later that week. She stated that the Centre for Rural Legal Studies had been established in 1991 and its core functions were research, giving legal advice on labour matters, training and educating about workers rights. When talking about labour brokerage on fruit farms she said that it was important to understand it in terms of its agricultural context, especially in the light of the history of colonialism and apartheid. In particular she highlighted the paternalistic nature of relations of the field players, the farm workers, brokers and farmers. She pointed out that less than 5% of the workforce was unionised and 5% was a generous allocation as the percentage stood at less than 3%. The methodology of the research included the use of the South African legislative framework, the ILO and international cases. Nevertheless the research was limited by geography, gender, work season and size and scope of commodity. The main international case studies focused on the United States of America which had gone the route of regulating labour brokers and Namibia which had banned labour brokering.  Their research findings centred on brokers and worker profiles, minimum wage contracts, gender and race, labour rights knowledge and unionisation, power relations and the use of labour brokers among other things. She said the main question for discussion was either to ban labour brokering or regulate it.

Discussion
Mr I Ollis (DA) remarked that presentation was excellent and he had learnt from it. He asked the reason for the change in the pattern of temporary workers, from being typically coloured women to being black people from the Transkei.

Ms Marco-Thyse replied that the trend was mainly due to the labour brokers going out of the Western Cape to recruit labourers.

Mr Ollis said that since there was a shift to more black farm workers he asked if the above mentioned coloured women then became permanent staff or were out of work.

Ms Marco-Thyse replied that if they thought back a couple of years to the National Evictions Survey by Nkuzi Development Association and Social Surveys, the research indicated that more than a million farm workers had been moved off farms despite the fact that Agri-SA disputed this fact. As a result a significant number of people were being moved off farms. It was highly unlikely that the coloured women stayed on, even on short term contracts. Another reason for this phenomenal movement out of the farms was the unintended consequences of legislation implemented to favour the workers such as the Extension of Security of Tenure Act (ESTA). Due to these types of tightening-up legislation, people were in fact moved off the farms before they turned 60. In addition there was the problem of the lack of tenure and even in situations were one managed to hang on to tenure, the workers lost out on their families. Hence the rise in the movement of people leaving farms.

Mr Ollis remarked that he was unaware of the fact that there were so many “marginalized” labour brokers. He then asked if the labour brokers actually drove physically to Transkai to recruit labour as opposed to recruiting in the local informal settlements.

Ms Solomon replied that that was indeed the case. Most labour brokers often went themselves to Transkei. The main reason they preferred not to recruit locally was that they saw migrant workers as more docile, willing to accept any given conditions hence they preferred them to local inhabitants. The recruited person then settled into the informal settlements and this was one of the causes of increased informal settlements and this also explained why labour brokers in limited cases recruited locally. 

Mr Ollis commented that they had been plagued by questions of the department’s inability to enforce legislation in nearly every presentation. He wanted to know whether this problem was a question of too few inspectors, poorly trained inspectors or lack of transport.

Ms Solomon replied that all the issues he had mentioned where contributory factors to the department’s ineffectiveness. Some areas were strapped of inspectors, in some cases it was a matter of capacity and in yet other cases it was transportation or a combination of all three. She was of the opinion that there was a need to increase resources and capacitating employed officials.

Mr Ollis asked if it was not appropriate to take time to listen to at least one or two marginalised labour brokers to hear out their needs especially in the light of the fact that they were suggesting regulating the industry as opposed to an outright ban of labour brokers.

Ms Solomon replied that in the study they spoke to a number of brokers and one of the things they raised was that they felt the need for an organised association. They did have a couple of association but these were loosely related and not properly organised. As a result, on their part, there was recognition for organisation which would give them the advantage of having a single voice when dealing with farmers instead of having the farmers use the divide and rule method. She was in agreement with Mr Ollis and said that it would definitely benefit the Committee if they heard their side of the story.  

Mr Ollis asked if they saw unionising being the only way to have constructive engagement between contractors and workers as he had noticed that the assumption in their presentation was that unionising everybody was the answer. He was concerned that Parliament would then become an arm of the trade union movement when their job was to protect workers rights and not to get everyone unionised.

Ms Solomon replied that in the type of work they did they always encouraged workers to unionise because of two things, firstly in most cases this was the first step workers took in learning about their rights and secondly it offered workers recourse. She did not think that unionising was the panacea for every worker’s problem but the truth of the matter was that a unionised worker was better off and more effective than one who was not unionised. 

Ms R Tsotesti (ANC) asked if the research looked into the schooling of the children of permanent farm workers and child labour.

Ms Solomon replied that in general if children were going to join their parents in informal settlements they went to school with the other children. However, due to the fact that they are not usually resident on farms the children went to school in other areas. Nevertheless, they did discover a small fraction of children aged 15-18 who were working. The main issue in such a situation was the number of hours that the children worked and whether the work could be termed hazardous. She highlighted that this was an area that needed tightening up and more clarity especially around the definition of a child, the work hours a child was entitled to fulfil and what constituted hazardous working conditions.

Ms Tsotesti asked that with workers not being aware of their rights did they monitor the registration of their UIF. She asked for the infant mortality rate considering the levels of poverty among farm workers. She commented on the issue of partnering with the labour union and was of the opinion that unions would be unwilling to donate potential members to labour brokers. She did not think that trade unions could work hand in hand with labour brokers considering they were calling for an outright ban of the system.

Ms W Newhoudt-Druchen (ANC) remarked that irrespective of how one looked at the issue the practice increased the exploitation of people and one could see that workers were becoming more and more vulnerable. She commented that the selling and buying of workers was a nice term for human trafficking and should they wish to comment on this comment they were welcome to do so.

Ms Marco-Thyse replied that the ILO in their description of forced labour stated that the taking of people from one place to the other was bonded labour and the ILO was very clear on this issue.

Ms Newhoudt-Druchen asked if the labour brokers kept track of seasonal workers by keeping up to date paperwork. She asked if women who were seasonal workers who then fell pregnant, could apply for work the following season.

Ms Marco-Thyse replied that when they talked to the labour brokers, they indicated that they had little time or expertise to track seasonal labourers. The given likelihood was that if a person was a hard worker who never complained and accepted every given condition, that person was most likely to be invited to be part of the workers the following year.

Ms Newhoudt-Druchen asked if the regulation of labour brokers that was happening in the United States benefited the labour broker or the worker, and if it benefited the worker, how it went about doing so.

Ms Marco-Thyse replied that the study in the United States showed that the regulation tended to protect workers as it ensured an agreement between broker and worker over fair remuneration for labour. This remuneration was normally agreed upon and there was also a minimum wage. She hoped that in South Africa it would have the same effect and be to the benefit of the worker because they were hearing a lot of horror stories in connection with farm labour brokering.

Ms L Mkhubela-Mashele (ANC) welcomed the study before them. She understood that the study was a true reflection of the labour conditions on the Western Cape farms. However the methodology was unknown to the Committee. She said that the study gave them an idea of the issues that they had to deal with as a Committee regarding labour brokers. There were different types of labour brokers, some were rich and some were poor. The ILO had legislation on private employment agencies, She welcomed the fact that South Africa had not ratified that convention. Labour brokers were operating illegally in the country. South Africa needed to develop legislation that would render the trade illegal. South Africa had to develop labour broking legislation that would benefit the labourers who are currently being exploited.

Mr E Nyekemba (ANC) thanked the centre for the informative presentation and said that the discussion on labour brokering should focus on the question of what was being brokered by the labour brokers. He said the question should centre on whether they were broking insurance or humans. He commented that s22 therefore had space in this discussion.

Mr Nyekemba remarked that the Free State example was evidence enough that labour brokers were working underground already. He commented that the question of who was the employer was very relevant as there were a lot of workers who were confused as to who employed them, between the farmer and the labour broker.  

Ms W Newhoudt-Druchen (ANC) asked whom they thought should be responsible when there was a dispute about the identity of the employer. She thought that in whatever situation farmers should have some sort of responsibility.

Ms Marco-Thyse replied that the question around the accountability of the labour broker, in particular whether the labour broker was the employer or worker was convoluted by the fact that the labour legislation talked about an independent contractor. She said that an independent contractor was one who used own one’s own means and tools to bring work back but the problem with labour brokers was that labour brokers did not appear to be independent contractors. This was because the farmer decided the type of work to be done, the duration and the fields that were going to be worked and equipment to be used. This raised questions on how independent were the independent contractors and this added to blurriness of the legislation.

Mr A Louw (DA) commented that banning was a shortcut route and one needed to look for alternatives but in the same vein one also needed to look at the issue of enforceability. He pointed that in this respect the Department of Labour had failed because nothing had been done to police the system. He added that until such a time that brokers realised they were systems of compliance and enforcement, exploitation was going to continue. He was of the opinion that in terms of responsibility, the Department should play a part and for him regulation with enforcement was the best way forward.

The Chair asked how the labour brokers were exploited.

Ms Marco-Thyse replied that labour brokers were exploited in their bargaining power and in their lack of ability to enter into robust negotiations with the farmer. The situation was: on the one hand, the farmer needed a labour broker but the labour broker was completely dependent on the farmer for a contract. It was common knowledge that most farmers kept in contact with other farmers so if one dealt badly with one farmer, that labour broker might not get future contracts from other farmers. As a result their livelihood was dependent on a good working relationship with the farmer. The historical set-up between the farmer and the broker where the farmer still saw the labour broker as a farm worker was still rampant. The farmer for all intents and purposes was seen as the boss and the labour broker still acted like a subservient worker. In addition due to the fact that most contracts were verbal, farmers could break a contract and opt for a cheaper broker if they found one and in this way they played labour brokers against each other.

The Chair asked, if given an opportunity to make a change in the legislation, what would be the best way of dealing with the situation and if they had specific proposals they wanted the Committee to concentrate on.

Ms Solomon replied that if they were to change things they would look at legislation. This was because banning would never produce the desired effect it would most likely lead to labour brokering to go underground. She added that when it came to legislation they should be careful not to be sympathetic to labour brokers.

Mr I Ollis (DA) suggested regulation of brokers and tight policing of it.

The meeting was adjourned.